Case 5:18-cv-00530 Document 1 Filed 04/05/18 Page 1 of 10 PageID 1 IN THE UNITED STATES DISTRICT COURT APR 5 FOR THE SOUTHERN DISTRICT OF WEST VIRGIN IA RORY L. ti, CLERK U. r_ memo? {Brim Southern amine: at West iffwinia . 7 Civil Action No. life CAROLYN DIANA DAVIS, as the Administratrix for the ESTATE of CHARLES TIMOTHY DAVIS, Plaintiff, Judge V. THE UNITED STATES, Defendant. COMPLAINT AND NOW comes the Plaintiff, Carolyn Diana Davis, as Administratrix of the Estate of Charles Timothy Davis, by and through undersigned counsel, and for her claim against Defendant The United States (?United States?), pursuant to the Federal Tort Claims Act 28 USC. 1346(b), alleges and states as follows: INTRODUCTION 1. On April 5, 2010, Plaintiff husband, Charles Timothy Davis, was killed in a massive explosion at the Upper Big Branch MinemSouth Mine?) then operated by Performance Coal Company, a sub-subsidiary of the Massey Energy Company and subject to safety inspections to be performed by employees of Defendant?s Mine Safety and Health Administration 2. Subsequently, Plaintiff, before the one-year anniversary of the explosion, and pursuant to the requirements of the Federal Tort Claims Act 28 USC 2671 et seq, ?led an administrative claim on behalf of her husband?s estate with the Department of Labor Case 5:18-cv-00530 Document 1 Filed 04/05/18 Page 2 of 10 PageID 2 3. More than six (6) years later, on October 19, 2017, the United States denied the claim. A copy of the letter denying the claim is attached hereto as Exhibit 4. With the passage of so much time, Plaintiff Davis misplaced her copy of the claim document she originally submitted to the In evaluating her case prior to bringing the present action, Plaintiff, through counsel, asked that kindly provide her with a copy of her original claim document. Sadly, the never responded to this simple request prior to the six-month statute that began running upon the DoL?s denial of the six?year?old claim. See Exhibit A. PARTIES 5. Plaintiff, who resides at 221 Delung Lane, Scarbro, Fayette County, WV, is the duly appointed Administratrix of the estate of her late husband, Charles Timothy Davis. 6. Defendant, the United States, is a sovereign state. Liability for the acts described herein is based on actions of agents and employees of MSHA, an agency of the United States, for which sovereign immunity is waived under the Federal Tort Claims Act, 28 U.S.C. 2671 et seq. JURISDICTION AND VENUE 7. This Court may properly exercise original jurisdiction over the parties and the subject matter of this action pursuant to 28 U.S.C. 1346(b)(1), 28 U.S.C. 1331, and 28 U.S.C. 2674. 8. Venue is properly laid in the Southern District of West Virginia, Beckley Division, pursuant to 28 U.S.C. 1402(b). The events and the acts complained of giving Case 5:18-cv-00530 Document 1 Filed 04/05/18 Page 3 of 10 PageID 3 rise to this action occurred Within Raleigh County, in this District, and the Plaintiff resides in this District. 9. West Virginia law applies to this action. 10. As noted in Paragraph 2, Plaintiff has exhausted the administrative requirements set forth in 28 U.S.C. 2675, by submitting Form Claim for Damage, Injury, or Death to the United States Department of Labor, Council for Claims and Compensation, Of?ce of the Solicitor of Labor, 200 Constitution Avenue NW, Suite S4325, Washington, DC 20210, by the statutory deadline for doing same, which claim the United States denied on or about October 19, 2017, as set forth in Exhibit A. BACKGROUND 11. At approximately 3 :00 pm. on April 5, 2010, as a shift change was taking place, a blast ignited at the tail of the UBB Mine longwall operation. 12. The blast resulted when the longwall?s shearer, cutting into sandstone, sent sparks into a pocket of methane that had accumulated over the preceding Easter weekend. 13. The resulting ?reball then travelled to the tailgate area of the longwall, setting off massive explosions of accumulated coal dust, an explosion that ripped through more than two miles of the mine workings. 14. A total of twenty-nine coalminers died in the explosion. 15. Charles Timothy Davis was one of four bodies later discovered by mine rescue team members in the headgate entry to the longwall. Case 5:18-cv-00530 Document 1 Filed 04/05/18 Page 4 of 10 PageID 4 ROLE IN THE EXPLOSION 16. The Governor?s Independent Investigation Panel appointed by then?Governor Joe Manchin and led by former MSHA Assistant Secretary of Labor J. Davitt McAteer assigned four speci?c failures to role in the explosion. 17. First, per the GHP Report, ?The Upper Big Branch Mine was a gassy mine subject to special spot inspections [and] had experienced at least three major methane?related events. All took place in the longwall mining sections.? GIIP Report, at p. 78. 18. responsibility, as the watchdog, was to recognize [these methane?related events] as evidence of hazards unique to this mine that warrant special precautions. However, of?cials in Mount Hope district of?ce did not compel (or to our knowledge even ask) UBB management to implement those recommendations. Senior of?cials in the Mount Hope of?ce couldn?t explain why no action was taken, but agreed in retrospect that the methane outbursts were extraordinary events deserving special attention. If MSHA has knowledge, data or evidence that a mine operator does not take all necessary precautions to protect miners? safety, MSHA must step in.? GIIP Report, at p. 78 (emphasis original). 19. Second, per the GIIP Report, ?In the seven months leading up to the disaster UBB Management submitted to MSHA more than 40 revisions to the mine?s ventilation plan. MSHA managers and ventilation specialists recognized the precarious nature of ventilation system, particularly after the longwall section started in September 2009.? GHP Report, at pp.78?79. Case 5:18-cv-00530 Document 1 Filed 04/05/18 Page 5 of 10 PageID 5 20. Stating that MSHA ignored numerous ?red ?ags? regarding the UBB ventilation system, the GHP Report concluded that is charged with doing more than reviewing plans, inspecting mines and writing citations and investigation reports. MSHA inspectors, with the guidance of their supervisors and engineering experts, must use their independent eyes to integrate information and see the cumulative effect of all the safety lapses and to develop a comprehensive enforcement strategy that includes special attention to those operators who skirt the bounds of safe operations.? Report, at p. 82. 21. Clearly, MSHA failed to do so in the days and months and even years leading up to April 5, 2010. 22. Third, per the GIIP Report, ?Nearly all US. coal mine operators, including Massey Energy, rely solely on MSHA to sample the rock dust in all of their mines and to determine whether they have a suf?cient percentage of incombustible content. 23. ?An MSHA inspector is expected to collect samples of deposited dust in an underground mine at least during each quarterly inspection and additionally ?when any doubt exists concerning adequacy of rock dust applications in the active working sections?? 24. ?This practice of rock?dusting is particularly troubling because for more than 20 years, government researchers and MSHA have studied and subsequently developed [the] coal dust explosibility meter GIIP Report, at p. 82. 25. However, ?no form of [the is being used in US. coal mines.? GHP Report, 82. Case 5:18-cv-00530 Document 1 Filed 04/05/18 Page 6 of 10 PageID 6 26. Per the GIIP Report, responsibility for that sad fact rests squarely with MSHA: ?The Mine Act places a duty[] on MSHA to ?develop, promulgate and revise as may be appropriate, improved mandatory health or safety standards for the protection of life and prevention of injuries in coal mines GIIP Report, at p. 83. 27. Despite the fact that ?The Mine Act is considered a ?technology forcing? statute, meaning that MSHA has the authority to use regulatory action to spur technological change? [and that] [t]he CDEM is fully developed, ?eld?tested and has proved completely capable of doing the job for which it was designed[,] no action regulatory or non-regulatmy 4 has been taken to compel the industry to adopt the devices.? GIIP Report, at p. 83. 28. Finally, per the GIIP Report, ?The ultimate failure of MSHA at UBB was the agency?s inability to see the entire picture, the inability to connect the dots of the many potentially catastrophic failure taking place at the mine especially the mine operator?s failure to properly ventilate the mine, to control methane, to apply suf?cient amounts of rock dust.? GIIP Report, at p. 83. 29. In addition, the United States? own Independent Panel Assessment of An Internal Review of MSHA Enforcement Actions at the Upper Big Branch Mine South (the found fault with the agency?s inspection efforts?or lack thereof?prior to the explosion. 30. A The IPA specifically considered Whether: ?If UBB enforcement performance had consistently and timely enforced the Mine Act and its applicable regulations, could it have prevented or minimized the explosion?? In answering that question, the Independent Panel Assessment found that ?there were three concurrent, Case 5:18-cv-00530 Document 1 Filed 04/05/18 Page 7 of 10 PageID 7 critical events that directly led to the explosion? and that there were, correspondingly, ?three opportunities to prevent or minimize the explosion.? IPA, at p. 7. 3 l. The IPA concluded that MSHA failed to adequately perform its duties at UBB, and that this failure had a causal relationship to the explosion. Sections 2 (?Preventing a Fuel Source for the Initial Gas Explosion?), 3 (?Preventing the Dust Explosion?) and 4 (?Conclusion?) are particularly relevant. 32. By way of example, with respect to preventing a fuel source for the initial gas explosion, the IPA states: ?if MSHA enforcement personnel had completed their required enforcement actions during at least one of the four inspections, it is less likely that a roof fall would have occurred. The air?ow would not have been reduced as a consequence. With the proper quantity of air, there would not have been an accumulation of methane, thereby eliminating the fuel source for the gas explosion.? IPA, at p. 8 (emphasis supplied). 33. Additionally, with respect to preventing the dust explosion, the IPA ?concludes that if MSHA enforcement personnel had taken appropriate enforcement actions during the inspections in the months prior to the explosion, either dangerous accumulations of explosive coal dust would have been rendered inert, or the mine would have been idled. In short, even if there had been a gas explosion, it would have lacked suf?cient fuel to trigger a massive dust explosion.? IPA, at p. 9. 34. Furthermore, commenting upon the interviews with MSHA inspection personnel, the Independent Assessment Panel concluded that ?there were numerous instances in which enforcement personnel exhibited a lack of understanding of policies and procedures? and that ?some interviews of MSHA supervisory Case 5:18-cv-00530 Document 1 Filed 04/05/18 Page 8 of 10 PageID 8 personnel suggested that at the time of the explosion, they were unaware of the inadequate quality of enforcement performance at IPA, at p. 4. COUNT I NEGLIGENCE AND WRONGFUL DEATH 35. Paragraphs 1 through 34 are incorporated by reference as if set forth fully herein. 36. Per the Supreme Court of Appeals of West Virginia, ?The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. The test is, would the ordinary man in the defendant?s position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?? Sewell v. Gregory, 179 585, 371 82, Syl. Pt. 3 (1988). 37. Additionally, private inspector who inspects a work premises for the puipose of furthering the safety of employees who work on said premises owes a duty of care to those employees to conduct inspections with ordinary skill, care, and diligence commensurate with that rendered by members of his or her profession.? Bragg v. United States, 230 532, 741 S.E. 2d 90, Syl. Pt. 4 (2013). 38. By analogy, the United States is liable here for negligently executing a duty it undertook, and for failing to exercise reasonable care to prevent harm to the Plaintiff caused by the United States? affirmative negligent conduct. 39. The United States voluntarily, speci?cally, physically, and actually undertook a duty to render services to the miners at the UBB Mine, including Mr. Davis. Case 5:18-cv-00530 Document 1 Filed 04/05/18 Page 9 of 10 PageID 9 40. The United States undertook the duty to administer the provisions of the Mine Act, which requires, inter alia, that MSHA perform thorough, detailed, and regular inspections of active underground mines such as the UBB Mine at prescribed intervals, in order to enforce compliance with mandatory safety and health standards. 41. The United States recognized or should have recognized that the careful rendering of those services were necessary for the protection of the miners, including Mr. Davis, and that performing those services in a negligent manner could lead to serious injury or death of the miners. 42. The Plaintiff reasonably relied upon the United States to undertake its inspections and enforcement actions in a competent and non-negligent manner, and that reliance ultimately contributed to the wrongful deaths of Mr. Davis. 43. The United States breached its duties to Mr. Davis by failing to notice and/or cite numerous blatant, fundamental, and grave violations of federal mine safety regulations, as described above, and as detailed in own internal investigation of its actions preceding the fatal explosion at the UBB Mine. These acts and/or omissions were not only a breach of the United States? duties to the Plaintiff, but were Violations of federal laws, regulations, and/or policies mandating the manner in which MSHA personnel were required to administer the provisions of the Mine Act. 44. The United States, by its acts and/or omissions, failed to exercise reasonable care in performing and rendering services to the Plaintiff, resulting in the death of Mr. Davis. 45. The United States? failure to exercise reasonable care in carrying out its inspection and enforcement activities increased the Plaintiff? 5 risk of harm, and the United Case 5:18-cv-00530 Document 1 Filed 04/05/18 Page 10 of 10 PageID 10 States thereafter failed to take reasonable steps to prevent harm to the Plaintiff resulting from its negligent affirmative acts. 46. The United States? acts and/or omissions were the proximate cause of and/or a substantial contributing factor in causing the Plaintiff damages. 47. As a direct result of the United States? tortious acts and/or omissions in these matters, the Plaintiff decedent suffered death, pain, impairment, and metal anguish, and the decedent?s Estate suffered losses as set forth in West Virginia?s Wrongful Death Act, West Virginia Code and (2). WHEREFORE, Plaintiff asks for a judgment against Defendant in an amount in excess of $75,000, as well as prejudgment interest and any other relief to which she is entitled. Respectfully submitted, BquF/?. Stanlew SB No. 5234) Alicia Schmitt (WVSB No. 12333) Stanley Schmitt PC 2424 Craftmont Avenue Pittsburgh, PA 15205 T: (412) 401?4654 Attorneys for Plainti? Dated: April 5,2018 Case Document 1-1. Filed 04/05/18 Page 1 of 4 PageID 11 EXHIBIT A Case 5:18-cv-00530 Document 1-1 Filed 04/05/18 Page 2 of 4 PageID 12 US. Department Of Labor Office of the Solicitor Washington, DC. 20210 Suite S-4325 200 Constitution Ave., NW Phone: (202) 693?5320 Fax: (202) 693-5374 October 19, 2017 CERTIFIED MAIL-RETURN RECEIPT REQUESTED Carolyn D. Davis, as Administratrix for the Estate of Charles Timothy Davis 221 Delung Lane Scarbro, West Virginia 25917 Re: Tort Claim of Carolyn Davis, as Administratrix for the IEstate of Charles Timothy Davis Dear Mrs. Davis: This letter responds to the administrative claim you filed with the United States Department of Labor (DOL) on behalf of the Estate of CharlEs Timothy Davis seeking 7.5 million dollars in damages for the death of your husband at the Upper Big Branch Mine on April 5, 2010. This of?ce has carefully reviewed this administrative claim, filed pursuant to the Federal Tort Claims Act (FTCA), 28 .S.C. 2671 et seq. and for the reasons stated below, this review discloses no liability on the part of the United States. Your claim, ?led as Administratrix of the Estate of Charles Timothy Davis, is therefore denied. A well?established principle of law is that the United State cannot be sued; this is commonly referred to as sovereign immunity. However, the United States can waive this immunity from suit by statute, as under the FTCA. This waiver of sovereign immunity under the FTCA is a limited waiver that is subject to numerous exceptions. In addition, liability of the United States under the TCA is based on whether a private person in like circumstances would be liable under the applicable state law. 28 U.S.C. 1346(b). ?Sovereign immunity is jurisdictional in nature. Indeed, the 'terms of [the United States'] consent to be sued in any court de?ne that court's jurisdiction to entertain the suit.? F. D. 1. C. v. Meyer, 510 US. 471, 475 (1994). See United Stales v. Kubrick, 444 US. 11 1, 117-18 (1979); United Stales v. Orleans, 425 US. 807, 813 (1976). As stated above, the basis for FT CA liability is state law. Violation of afederal law cannot be the basis for FTCA liability. C. Myer, 510 US. 471 (1994). The FTCA does not waive the sovereign immunity of the United States to allow tort claims based on alleged violations of federal statutes or regulations. See Williams v. United States, 242 F.3d 169, 173 (4th Cir. 2001); United States v. Agronics, Ina, F.3d 1343, 1346 (lOth Cir. 1999); SeaAir Shuttle Corp v. UnitedStates, 112 F.3d 532, 536 (lst Cir. 1997); Arr Meral~U.S.A., Inc. v. United States, 753 F.2d 1151, (DC. Cir. 1985). To the extent that your administrative claim is based on allegations that the Mine Safety and Health Administration (MSHA) failed to perform actions mandated by federalstatutes, regulations or procedures, there is no liability under the FTCA, and thus, your claim is denied. Case 5:18-cv-00530 Document 1-1 Filed 04/05/18 Page 3 of 4 PageID 13 Your claim is also denied based upon the Discretionary Function exception to the FTCA. In passing the FTCA, "Congress was careful to except from the Act?s broad waiver of immunity several important classes of tort would otherwise fall within section reach. United States v. Varig Airlines, 467 US. 797, 808 (1984). One of the exceptions to the surrender of sovereign immunity is the Discretionary Function exception which bars ?any upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.? 28 U.S.C. 2680(a). If the Discretionary Function exception applies, the claim does not fall within the waiver of sovereign immunity, and federal courts lack jurisdiction to entertain the claim. Estate of Bernaldes v. United States, 81 F. 3d 428 (4th Cir. 1996). The government?s actions in inspecting the Upper Big Branch Mine South, and in identifying, recording or correcting any hazards, met the required elements found in the Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. 801 et seq. Under the Mine Act, the Secretary is required to make inspections of each underground mine ?in its entirety at least four times a year.? 30 U.S.C. 813(a). Although you assert negligent inspections, inspectors who were inexperienced, and inadequate training of MSHA employees, you have not speci?cally stated any mandatory duty regarding inspection, or training of MSHA inspectors, that has been violated. There is no dispute that MSHA conducted the requisite inspections. The manner of the inspection; choosing which inspectors to inspect the mine; the manner and sufficiency of those inspectors? training; andjudgments made by the inspectors during the inspection fall within the Discretionary Firnction exception, even if MSHA c?clearly should have known? 'of the hazards as alleged in your claim. 28 U.S.C. 2680(a). The federal government?s actions in training its employees and in inspecting the UBB mine required it to exercise considerable discretion in order to balance a number of important and potentially conflicting policy considerations. Those actions involved human judgment in determining how best to train the inspectors to determine whether safety violations exist; the policy considerations of maintaining the health and safety of the workers at the UBB mine; and utilizing the limited governmental resources available to the agency and its inspectors in conducting the inspections. These types of governmental actions are the types of governmental functions that the Discretionary Function exception was designed to protect from suit. See generally Estate of Bernaldes v. United States, 81 F. 3d 428 (4th Cir. 1996). The Discretionary Function exception applies "whether or not the discretiOn involved be abused." 28 U.S.C. ?2680(a); Dale/rite v. United States, 346 US. 15, 33?34 (1953). Finally, your claim is denied because the Government?s alleged negligence has not created a cause of action under the state law of West Virginia. See generally Bragg v. United States, 230 W. Va. 532, 741 S.E. 2d 90 (2013). As previously stated, the basis for FTCA liability is state law. West Virginia has long held that for negligence to be actionable it ?must be the proximate cause of the injury complained of and must be such as might have been reasonably expected to produce an injury.? McCoy 12. Cohen, 149 W. Va. 197. 140 427 (1965); Barbina v. Carry, 221 W. Va. 41, 650 140 (2007). Under West Virginia law, ?the proximate cause of an injury is the last negligent act contributing to the injury and without?ivhich the injury would not have occurred. Sergent v. City of Charleston, 209 W. Va. 437, 549 S.E. 2d 311, 320 (2001); Judy v. Grant County Health Dept, 210 W. Va. 286, 557 340 (2001). Although a ?tortfeasor whose negligence is a substantial factor in bringing about injuries is not Case 5:18-cv-00530 DoCument 1-1 Filed 04/05/18 Page 4 of 4 PageID 14 relieved from liability by the intervening acts of third persons if those acts were reasonably foreseeable by the original tortfeasor at the time of his negligent conduct,? Anderson v. Moulder, 183 77 (1990), ?[g]enerally a willful, malicious, or criminal act breaks the chain of causation.? Yourree v. Hubbard, 196 W. Va. 683, 690 (1990); Sergeant at 321. In this case, 1 find that criminal acts committed by Massey?s Don Blankenship break the chain of causation.On December 3, 2015, Don Blankenship was convicted of conspiracy to willfully violate MSHA standards. On January 19, 2017, the Fourth Circuit affirmed the District Court?s decision. United States ofAmerica v. Blankenship, 846 F. 3d. 663 (4th Cir. 2017) cert denied 583 The Fourth Circuit noted that Blankenship?s conviction stemmed from his conspiring to violate, among other regulations, mine ventilation regulations, (2) mine-safety examination requirements, (3) regulations regarding support of roof and walls, and (4) regulations governing accumulation of explosive coal dust.? Id. at 668. The Court noted that despite MSHA issuing many citations to UBB in 2009 and 2010, ?including some related to improper ventilation and accumulation of combustibie materials - problems that were key contributing factors to the accident told. . .Massey employee in charge of the Upper Big Branch mine that ?safety violations were the cost ofdoing business? and that it was ?cheaper to break the safety laws and pay the fines than to spend what would be necessary to follow the safety laws.m Id. at 666?667. The Mine Act places responsibility for compliance with health and safety?regulations upon the mine operator. See 30 U.S.C. 801(c). The Act provides that ?the operators of such mines with the assistance of the miners have the primary responsibility to prevent the existence of [unsafe] conditions and practices in such mines.? Id. Even though MSHA regularly (as required by the statute) inspected the UBB mine for compliance with NISHA rules and to promote a safe'working mine, Blankenship intentionally worked to thwart efforts. Blankenship was aware due to MSHA inspections I and many resultant citations - that unsafe conditions existed that were key contributing factors to the accident, but he chose to run his mine ignoring the Mine Act and its implementing regulations/procedures. Instead of working with MSHA, his instructions to Massey employees demonstrate intentional non-compliance to increase pro?ts by ignoring MSHA rules. Consequently, to the extent that Massey?s actions at the UBB mine rose to the level of criminal conduct, as demonstrated by Blankenship?s conviction, any chain of causation due to alleged negligence in its inspections was broken. Under the FTCA (analyzing the applicable law of West Virginia), actions were not the proximate cause of Charles Timothy Davis? death. With respect to this denial under the you are advised of your right to file suit in an appropriate United States District Court within six months of the date of the mailing of this letter if you are dissatis?ed with the results of this determination. CATHERINE Counsel for Claims and Compensation Case 5:18-cv-00530 Document 1-2 Filed 04/05/18 Page 1 of 1 PageID 15 CIVIL COVER SHEET The 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judrcral Conference of the United States in September 1974, rs required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCHONS 0N NEXTPAGE OF THIS FORM.) I. PLAINTIFFS DEFENDANTS Davis, Carolyn Diana, as Administratrix of the Estate of Charles Timothy United States Davis 18 44 (Rev. 06/17) County of Residence of First Listed Plaintiff Fayette (EXCEPTIN US. PLAINTIFF County of Residence of First Listed Defendant (IN US. PLAINTIFF CASES ONLY) IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND ZNVOLVED. NOTE: (C) Attorneys (Firm Norrie. Address, and Telephone Numbte Attorneys (19? Knoim) Bruce Stanley, Alicia Schmitt, Stanley Schmitt PC, 2424 Craftmont Avenue, Pittsburgh, PA 15205 United States Department of Justice, Civil Division H. OF (Place an (Place an in One Box for Plaintiff (For Diversity Cares Only) and One Bar-for Defendant) 1 US. Govemment 3 Federal Question PTF DEF PTF DEF Plaintiff (US. Government Not a Party) Citizen of This State El 1 i Incorporated or Principal Place l3 4 El 4 of Business in This State ES 2 US. Government El 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 CI 5 Defendant (Indicate Citizenship of Parties in Item 111) of Business In Another State Citizen or Subject of a El 3 El 3 Foreign Nation 6 El 6 orgigp Country IV. NATURE OF SUIT (Place an in One Box Only) Click here for: Nature of?iuit Code Desert itions. '2 32w: CONTRACT 3? '33 "3 '33- '1'31253 BANKRUPTCY-- i . IIJ 110 Insurance PERSONAL INJURY PERSONAL INJURY Cl 625 Drug Related Seizure Cl 422 Appeal 28 USC 158 375 False Claims Act 13 120 Marine El 310 Airplane 365 Personal Injury - of Property 21 USC 881 CI 423 Withdrawal 130 Miller Act 315 Airplane Product Product Liability l3 690 Other 28 USC 157 3729(a)) 140 Negotiable Instrument Liability CI 367 Health Care/ CI 406 State Reappmtionment El ?50 Recovety of Overpayment El 320 Assault, Libel Phannaceutical 3' PROP. . El 410 Antitrust Enforcement of Judgment Slander Personal Injury 20 Copyrights CI 430 Banks and Banking Cl 15] Medicare Act 330 Federal Empioyers? Product Liability El 830 Patent CI 450 Commerce [1 152 Recovery of Defaulted Liability [3 368 Asbestos Personal Cl 835 Patent - Abbreviated 460 Deportation Student Loans 340 Marine Injury Product New Drug Application Cl 470 Racketeer In?uenced and (Excludes Veterans) El 345 Marine Product Liability El 840 Trademark Corrupt Organizations El 153 Recovory of Overpayment Liability PERSONAL PROPERTY 213?: CI 480 Consumer Credit of Veteran?s Bene?ts El 350 Motor Vehicle Cl 370 Other Fraud Cl 710 Fair Labor Standards El 861 HIA (1395?) Cl 490 Cabie/Sat TV CI 166 Stockholders? Suits Cl 355 Motor Vehicle El 371 Truth in Lending Act Cl 862 Black Lung (923) El 850 Securities/Cornrnodities/ 199 Other Contract Product Liability I3 380 Other Personal 720 Labor/Management 863 (405(g)) Exchange l3 195 Contract Product 360 Other Personal Property Damage Relations 864 SSID Title XVI 890 Other Statutory Actions Cl 196 Franchise Injury Cl 385 Property Damage 1] 740 Railway Labor Act El 865 RSI (405(g)) 891 Agricultural Acts 362 Personal Injury - Product Liability Cl 751 Family and Medical 893 Environmental Matters Medical Mal ractice Leave Act CI 895 Freedom of Information 3.: I ?3 PRISON-ER: PETITIONS. 37 El 790 Other Labor Litigation Act Cl 210 Land Condemnation 440 Other Civii Rights Habeas Corpus: Cl 791 Employee Retirement Cl 870 Taxes (US. Plainti? 896 Arbitration 220 Foreclosure 44f Voting Cl 463 Alien Detainee Income Security Act or Defendant) Cl 899 Administrative Procedure El 230 Rent Lease Ejectrneut Cl 442 Employment Cl 510 Motions to Vacate 871 IRSm?Third Party Act/Review or Appeal of El 240 Torts to Land El 443 Housing/ Sentence 26 USC 7609 Agency Decision 245 Tort Product Liability Accommodations El 530 General 950 Constitutionality of El 290 All Other Real Property El 445 Amer. w/Disahilities - CI 535 Death Penalty 17,12? State Statutes Employment Other: CI 462 Naturalization Applicatio 446 Amer. \vr?Disabilities - 540 Mandamus Other 465 Other immigration Other 550 Civil Rights Actions El 448 Education CI 555 Prison Condition El 560 Civil Detainee - Conditions of Confinement V. (Place an in One Box Only) X1 Original CI 2 Removed from Proceeding State Court El 3 Remanded from Appellate Court 4 Reinstated or 6 Multidistrict Reopened Litigatron - Transfer CI 8 Muitidistrict Litigation Direct File 5 Transferred from Another District Cite the US. Civil statute under which you are ?ling (Do not cite jurisdictional statutes unless diversity: Federal Tort Claims Act -- 28 USC 2671 et seq. Brief description of cause: Negligent Inspection of Coal Mine Property by Federal Mine Safety and Health Administration, Dept. of Labor VI. CAUSE OF ACTION VIE. REQUESTED IN Cl CHECK IF THIS iS A CLASS ACTION DEMAND 8? CHECK YES only if demanded in complaint: COMPLAINT: UNDER RULE 23, JURY DEMAND: in Yes RELATED IF ANY (See JUDGE DOCKET NUMBER 2 g! a FOR OFFICE USE ONLY RECEIPT AMOUNT APPLYING IFP JUDGE MAG. JUDGE .. uw?iw .. 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