UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ESTATE OF DENNY BERNALDES,
Plaintiff-Appellant,

v.
                                                                      No. 95-1905
UNITED STATES OF AMERICA; 3
UNNAMED INSPECTORS OF THE MINE
SAFETY AND HEALTH ADMINISTRATION,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
James H. Michael, Jr., Senior District Judge.
(CA-94-41-H)

Argued: February 1, 1996

Decided: February 28, 1996

Before WILKINS, LUTTIG, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Wilfrid Kip Wood, COLEMAN & WOOD, P.C., Fairfax,
Virginia, for Appellant. Robin Doyle Smith, Trial Attorney, Torts
Branch, Civil Division, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellees. ON BRIEF: Sean J. Cole-
man, COLEMAN & WOOD, P.C., Fairfax, Virginia, for Appellant.
Frank W. Hunger, Assistant Attorney General, Robert P. Crouch, Jr.,
United States Attorney, Phyllis J. Pyles, Assistant Director, Torts
Branch, Civil Division, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The Estate of Denny Bernaldes, a kiln burner operator who died in
a fall at the mine where he worked, brings this wrongful death action
against the United States pursuant to the Federal Tort Claims Act. The
Estate asserts that certain Mine Safety and Health Administration
(MSHA) inspectors negligently failed to discover safety violations in
the mine. The district court dismissed the action for lack of subject
matter jurisdiction, reasoning that the inspectors' compliance determi-
nations involved the exercise of discretion in carrying out policy
driven duties and thus fell within the discretionary function exception
to the Federal Tort Claims Act. We affirm.

On the evening of December 13, 1992, Denny Bernaldes died in an
accident at the Clearbrook Mine & Mill, an aggregate and lime pro-
ducing business operated by W. S. Frey, Inc. MSHA determined that
Bernaldes fell from the top of a coal chute in a coal storage shed
down into a tunnel, where he was buried by falling coal. The Estate
claims that when MSHA conducted an inspection of the Clearbrook
Mine four months prior to the accident, the inspectors failed to "issue
Frey any citations for safety violations related to Mr. Bernaldes' fatal
accident, even though these violations were in existence at that time."
Specifically, the Estate claims the MSHA inspectors failed to cite
Frey for the lack of a grate, railing, or safety harness in the coal shed;
inadequate lighting; and inadequate communication equipment among
personnel working at the mine. After Bernaldes's death, MSHA did
cite Frey for an unguarded opening at the top of the coal chute, failure

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to provide a safety belt and harness, and lack of adequate communica-
tions between the kiln burner operator and those outside the coal shed
unit.

In United States v. Gaubert, 499 U.S. 315, 322-23 (1991), the
Supreme Court set forth a two-prong test to be used to determine
whether the discretionary function exception bars a suit against the
United States under the Federal Tort Claims Act. First, a court must
determine if a government employee's action is discretionary or man-
datory. Id. at 323. Second, if the conduct is discretionary, it must
determine if the employee's discretion is based on considerations of
public policy. Id.

In this case, the district court concluded that although the MSHA
regulations contain some mandatory language, mining inspectors have
discretion under the regulations to determine if a given mine is in
compliance with the regulations. For example, inspectors have discre-
tion to determine whether there is, in fact, a "danger of falling" signif-
icant enough to require the use of safety belts and lines as mandated
by 30 C.F.R. S 56.15005. Thus, the court held that the MSHA regula-
tions were not sufficiently specific to be considered "mandatory." Cf.
Gaubert, 499 U.S. at 325.

The district court then held that the inspectors' decisions were
grounded in public policy. Recognizing that if a government
employee has discretion under the first Gaubert prong, it "must be
presumed" that his acts "are grounded in policy when exercising that
discretion," Gaubert, 499 U.S. at 324, the court reasoned that the
inspectors' decisions as to when danger is great enough to require the
implementation of safety measures are grounded in the policy of
MSHA--protecting the miners' health and safety within the mine
operators' financial constraints. Accordingly, the district court con-
cluded that the Sixth Circuit erred in Myers v. United States, 17 F.3d
890, 898 (6th Cir. 1994), when it held that questions of safety
involved objective non-policy based factors.

On appeal, the Estate continues to assert that the discretionary
function exception is inapplicable here. For the reasons stated in the
excellent opinion of the district court, see Estate of Denny Bernaldes
v. United States, 877 F. Supp. 301 (W.D. Va. 1995), we reject the

                     3
Estate's arguments and affirm the district court's decision dismissing
this case for lack of subject matter jurisdiction.

AFFIRMED

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