                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-1342


DELORICE BRAGG, as Administratrix of the Estate of; DON
ISRAEL BRAGG; FREDA HATFIELD, as Administratrix of the
Estate of; ELLERY HATFIELD,

                Plaintiffs - Appellants,

           v.

UNITED STATES OF AMERICA,

                Defendant - Appellee.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  John T. Copenhaver,
Jr., District Judge. (2:10−cv−00683)


Argued:   May 17, 2012                     Decided:   July 17, 2012


Before AGEE, DAVIS, and WYNN, Circuit Judges.


Unpublished Order of Certification of a question of law to the
West Virginia Supreme Court of Appeals.


ARGUED:   Bruce  E.   Stanley,  REED   SMITH,  LLP,   Pittsburgh,
Pennsylvania, for Appellants.    Benjamin Seth Kingsley, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Colin E. Wrabley, Alicia M. Schmitt, Lucas Liben, REED
SMITH, LLP, Pittsburgh, Pennsylvania, for Appellants.        Tony
West, Assistant Attorney General, Mark B. Stern, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; R. Booth Goodwin II,
United States Attorney, Charleston, West Virginia, for Appellee.
PER CURIAM:

     As   representatives      of   the   estates   of    two   deceased    coal

miners, Appellants brought this negligence and wrongful death

action against the United States under the Federal Tort Claims

Act (“FTCA”), 28 U.S.C. § 1346(b).           Appellants alleged that the

negligence of the Mine Safety and Health Administration (“MSHA”)

in its safety inspections of the Aracoma Coal Company’s Alma

Mine (“Mine”) contributed to a fire that resulted in the death

of the miners.      The district court dismissed the action because,

in its view, under West Virginia law, a private person under

like circumstances to those alleged against the United States

would not be liable in a negligence action for the wrongful

death of the miners.

     On   appeal,     Appellants     challenge      the    district   court’s

interpretation   of     West    Virginia’s     tort      law.     Finding     no

controlling   appellate     decision,      constitutional       provision    or

statute of West Virginia resolving the determinative issue in

this matter, we certify the following question of law to the

West Virginia Supreme Court of Appeals pursuant to the Uniform

Certification of Questions of Law Act, W. Va. Code § 51-1A, et.

seq.:

     Whether a private party conducting inspections of a
     mine and mine operator for compliance with mine safety
     regulations is liable for the wrongful death of a
     miner resulting from the private party’s negligent
     inspection?

                                      2
      This      Court      acknowledges        that    the        West    Virginia   Supreme

Court of Appeals may reformulate this question.                            See W. Va. Code

§ 51-1A-4.         In accordance with the requirement in W. Va. Code §

51-1A-6,      we     identify     the    names      and     addresses       of    counsel   of

record    and      unrepresented        parties       as    follows:       (1)    Counsel   of

record for Appellants is Alicia M. Schmitt, Bruce E. Stanley,

and   Colin     E.    Wrabley,     Reed    Smith,          LLP,    Suite    1200,    225    5th

Avenue, Pittsburgh, PA 15222; (2) Counsel of record for Appellee

is Benjamin Seth Kingsley, United States Department of Justice,

Civil    Division,         Appellate     Staff,       Room    7261,       950    Pennsylvania

Avenue, NW, Washington, DC 20530−0000; and Charles T. Miller and

Fred B. Westfall, Jr., Office of the United States Attorney,

Suite 4000, Southern District of West Virginia, 300 Virginia

Street, East, P. O. Box 1713, Charleston, WV 25326−1713.



                                               I.

      Pursuant        to    W.   Va.    Code    §   51-1A-4,        this    “certification

order must contain: the facts relevant to the question, showing

fully the nature of the controversy out of which the question

arose.”       In complying with this requirement, we note that the

district      court’s       dismissal      was      for      want    of    subject    matter

jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and,

consequently, “we must assume the truth of the material facts as


                                               3
alleged in the complaint.”               White v. United States, 53 F.3d 43,

44 (4th Cir. 1995).

       On January 19, 2006, an over accumulation of combustible

coal dust in the Mine caused a deadly fire.                           Although attempts

were made to extinguish the fire and contain the smoke, these

attempts were stymied by inadequate safety measures including,

for example: a fire hose rendered useless because “the threads

on the fire hose coupling did not match the threads on the

outlet”; a lack of water because “the main water valve had been

closed at the source, cutting off water to the area where the

fire     had        started”;      inadequate      ventilation           controls        and

ventilation safety barriers that failed to warn the miners of

the danger and allowed smoke to flow “in the wrong direction,

deeper into the mine . . . flooding the emergency escapeways”;

and     the       absence   of    functioning      CO     detectors,         as   well    as

malfunctioning         communications       equipment,      that       delayed       warning

the miners of the danger and delayed evacuation.                        J.A. 9.

       Don         Israel    Bragg       (“Bragg”)        and      Ellery           Hatfield

(“Hatfield”), together with ten other coal miners, were trapped

in     the    underground        blaze   and     smoke.         Due     to    the     faulty

ventilation system, smoke from the fire flooded the escape route

and reduced visibility.              In the dark, the miners had difficulty

finding       a    personnel     door    that    was    unmarked.            Although    the

workers       attempted     to    utilize      breathing    devices          called   Self-

                                            4
Contained Self-Rescuers to deal with the smoke, they lacked the

training necessary to operate these devices.                             Ultimately, ten

coal    miners    managed       to   escape       from    the    Mine,    but     Bragg    and

Hatfield were killed by carbon monoxide intoxication.

       MSHA’s    investigation        of    the     Mine       fire    revealed    numerous

violations of the Mine Safety and Health Act (“Mine Act”), 30

U.S.C. § 801, et. seq., by Aracoma Coal Company (“Aracoma Coal”)

that contributed to the cause and severity of the fatal fire.

MSHA’s investigation also revealed the inadequacies of its own

previous inspections of the Mine.                    For example, by late 2005,

MSHA inspectors issued 95 citations to Aracoma Coal for safety

violations but failed to “identify and cite numerous violations

that    were     in   existence,      neither       did        they    require    the     mine

operator to take corrective actions.”                         J.A. 13.    Likewise, MSHA

personnel      “failed     to    follow    explicit           Agency    policy    regarding

Section 103(i) inspections [i.e., spot inspections]” by failing

to     “undertake       reasonable     efforts           to    detect    mine     hazards”,

through a “gross misallocation of inspector resources,” and by

exhibiting       “a     lack    of   initiative           to    appropriately       conduct

Section 103(i) inspections.”               J.A. 14.

       Accordingly, MSHA determined that its own inspectors were

at fault for failing to identify or rectify many obvious safety

violations       that    contributed        to     the        fire.      In   relation     to

training, MSHA concluded that its inspector “assigned to inspect

                                              5
the [Mine] did not determine whether the [atmospheric monitoring

system] operator[, who ignored the CO alarms during the fire,]

was adequately familiar with his duties and responsibilities,

even though this determination was required of and understood by

the inspector.”       J.A. 14.          The MSHA investigation also revealed

that    “[a]n   adequate       inspection          by   MSHA    [of     the   atmospheric

monitoring      system         (“AMS”)]            would      have    identified          the

deficiencies with the AMS, including the fact that no alarm unit

had been installed.”           J.A. 14.            In relation to the ventilation

controls, the MSHA investigation confirmed that its inspectors,

“demonstrated a lack of initiative to identify basic violations

. . . even though the unmarked doors and missing stoppings were

obvious and easily identifiable. . . . [such that] an adequate

MSHA    investigation      .    .   .    would       have     identified      the    missing

stoppings.”     J.A. 15.        The MSHA investigation also revealed that

other     contributing         factors         to       the    fire      including        its

“inadequate”     inspection             of     the      conveyor      belts         and   its

“ineffective    use   of       MSHA’s        enforcement       authority”      in    issuing

citations for accumulated coal dust.                    J.A. 16.

       MSHA’s   internal        report         speculated        that      conflicts      of

interest may have contributed to its inspectors’ inadequate and

ineffective inspection and enforcement of the Mine’s compliance

with mine safety regulations:



                                               6
     The internal review team has concluded that mine
     inspectors neglected to issue citations in some
     situations in which citations were justified and that
     mine inspectors on occasion underestimated [Aracoma
     Coal’s] negligence and/or the gravity of the hazardous
     conditions when violations were cited. . . . The
     failure to propose more significant civil penalties
     likely interfered with the deterrent value that civil
     penalties are designed to have under the Mine Act. . .
     . [The internal review team believes that some of the
     identified deficiencies may have stemmed from the
     relationship that MSHA developed with Massey Energy
     Company representatives in early 2001. . . . [U]sing
     enforcement personnel in this manner to assist the
     Aracoma Coal Company with its compliance efforts may
     have created a conflict of interest that, over time,
     may have affected the level of scrutiny MSHA provided
     at [the Mine] during subsequent mine inspections.]

J.A. 17.

     In    light   of   its   extensive   findings   of   inadequacy   and

ineffectiveness in its inspections, supervision and enforcement

at the Mine, MSHA’s internal investigation concluded as follows:

     It is the internal review team’s conclusion that, in
     the year before the January 19, 2006, fatal fire at
     the [Mine], MSHA did not conduct inspections in a
     manner that permitted us to effectively identify
     hazardous conditions at the mine, and did not utilize
     the Mine Act to effectively enforce health and safety
     standards promulgated to provide miners with the
     protections afforded by the statute. The Aracoma Coal
     Company’s indifference to health and safety conditions
     at the [Mine] and MSHA’s failure to more effectively
     enforce the Mine Act allowed significant hazards, many
     of which otherwise might have been identified and
     addressed, to continue in existence prior to the fatal
     fire. The Agency’s culpability rests with all persons
     who directly or indirectly were responsible for
     administering the Mine Act at the [Mine], from the
     inspectors who conducted the mine inspections through
     the headquarters office personnel who ultimately were
     responsible for overseeing MSHA activities throughout
     the Nation.

                                     7
J.A. 19-20.

                                     II.

       Appellants, the widows of Bragg and Hatfield, instituted

this action on April 28, 2010, invoking the federal district

court’s jurisdiction pursuant to the FTCA.             The FTCA waives the

sovereign immunity of the United States for torts committed by

federal employees acting within the scope of their employment

“under    circumstances    where   the     United   States,    if     a   private

person, would be liable to the claimant in accordance with the

law of the place where the act or omission occurred.”                 28 U.S.C.

§ 1346(b)(1).     Under the FTCA, the United States is liable “in

the same manner and to the same extent as a private individual

under like circumstances.”         28 U.S.C. § 2674 (emphasis added);

Kerns v. United States, 585 F.3d 187, 194 (4th Cir. 2009) (“An

action under the FTCA may only be maintained if the Government

would be liable as an individual under the law of the state

where the negligent act occurred.”); see also United States v.

Olson, 546 U.S. 43, 46 (2005) (explaining that the “words ‘like

circumstances’ do not restrict a court’s inquiry to the same

circumstances, but require it to look further afield” (quotation

omitted)); Carter v. United States, 982 F.2d 1141, 1144 (7th

Cir.     1992)   (“The    national    government      is      never       situated




                                      8
identically to private parties.       Our task is to find a fitting

analog under private law.”).

       The district court dismissed Appellants’ complaint on the

basis that West Virginia law would not hold a private analogue

to the MSHA inspectors liable for negligence resulting in the

wrongful death of the miners.     In doing so, the district court

rejected theories of liability based upon: (1) West Virginia’s

general negligence principles as identified in Aikens v. Debow,

208 W. Va. 486, 541 S.E.2d 576 (2000), because “[i]rrespective

of the foreseeability of risk” to the miners that may flow from

the MSHA’s negligent inspection, J.A. 233, “overriding public

policy concerns caution against imposing a legal duty upon the

MSHA inspectors,” J.A. 233; and (2) West Virginia’s “special

relationship” theory identified in Aikens because “based upon

the relevant West Virginia case law, it does not appear that a

private analogue to the MSHA inspectors would be held liable to

the decedent miners under a special relationship theory.”      J.A.

239.

       On appeal, Appellants contend that the district court erred

in its analysis of both West Virginia’s general principles of

negligence and its special relationship theory. *


       *
       The district court also rejected a theory of liability
based upon West Virginia’s “voluntary undertaking” theory.   The
district court concluded that the West Virginia Supreme Court of
(Continued)
                                  9
                                             III.

      Several factors justify certification.                             We find no clear

controlling West Virginia precedent to guide our decision.                                     At

this stage of the litigation, there are no disputed fact issues,

and the question presented is a pure question of state law,

which    has    not     been    squarely      addressed            by   the    West    Virginia

Supreme     Court      of    Appeals.         In     addition,          we     recognize      the

importance       of    allowing        the   West        Virginia       Supreme       Court    of

Appeals to decide questions of state law and policy with such

far-reaching impact.            The question of whether a private party is

liable to miners for their negligent safety inspection of a mine

and     mine    operator       appears       to     be    a    matter         of   exceptional

importance       for    West     Virginia.          In     short,       we     are    uncertain

whether     the       West     Virginia      Supreme       Court        of    Appeals    would

conclude       that    claims     by    miners      against         private        parties    for

negligent safety inspections should be dismissed for failure to

state a claim.

      Therefore, because no controlling West Virginia appellate

decision,       constitutional          provision,            or    statute        appears     to

address the precise question presented in this case, and the




Appeals “would not hold a private analogue to the MSHA
inspectors liable based on a ‘voluntary undertaking’ theory of
liability.”   J.A. 231.   Appellants, however, have not advanced
the “voluntary undertaking” theory on appeal.


                                              10
answer to the certified question is potentially determinative of

this appeal, the question is properly subject to review by the

West Virginia Supreme Court of Appeals on certification.



                                     IV.

     Accordingly, pursuant to the privilege made available by W.

Va. Code § 51-1A-3, we respectfully hereby ORDER: (1) that the

question stated above be certified to the West Virginia Supreme

Court of Appeals for answer; (2) that the Clerk of this Court

forward to the West Virginia Supreme Court of Appeals, under the

official   seal   of   this    Court,      a   copy    of    this   Order    of

Certification,    together    with   the    original    or   copies   of    the

record before this Court to the extent requested by the West

Virginia Supreme Court of Appeals; and (3) that the Clerk of

this Court fulfill any request for all or part of the record

simply upon notification from the Clerk of the West Virginia

Supreme Court of Appeals.

                                                        QUESTION CERTIFIED




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