Petition — Bernitsky v. United States

IN THE

Supreme Court of the Unit |

c

e

October Term, 1980

No. 80-40

JOSEPH BERNITSKY, ALBERT BERNITSKY, VINCENT BER-

NITSKY and GEORGE STENULIS, Individually and Trading

as BERNITSKY BROTHERS COAL COMPANY, SLOPE

NO. 2,

Petitioners,

v.

UNITED STATES OF AMERICA,

United States Department of Justice, Washington, D. C.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

THoMas B. RvuTTER,

Counsel for Petitioners.

872 Public Ledger Building,

Independence Square,

Philadelphia, Pennsylvania. 19106

(215) 925-9200

International Printing Co., 711 So. 50th St., Phila., Pa. 19143 — Tel. (215) 727-8711

TABLE OF CONTENTS.

Page

Crees. DUO cnn s cecctieckntguuéuna benbeneeeenee 1

FOTO. vive ceccsncscetdscdseswaunsckeueeeenn eee 2

STATEMENT OF THE QUESTIONS PRESENTED ..........0+0000: 2

Reuwvanr Sravureb. ane RUSS x i. 6. oes iccscsccsecesdeces 3

ep SURES GP WHE CA. on sc vs Sitcs nce ine cesnkeeeceeeaen 7

REASONS FOR GRANTING THE WRIT ..........cccceceecceees 15

I. This Court Should Grant the Instant Petition for the

Reason That the Decision of the Court Below Di-

rectly Conflicts With the Holdings of This Court in

Hatahley v. United States, 351 U. S. 173 (1956), and

Indian Towing Co. v. United States, 350 U. S. 61

(BRBG). «0 ovdvnenses .0.00eh cee eanenneeaeeee 15

II. This Court Should Setile an Important Question of

Federal Law Regarding the Liability of the Federal

Government Pursuant to the Tort Clairns Act for the

Failure of Federal Agents to Exercise Due Care in

the Enforcement of a Federal Statute or Regulation 24

III. This Court Should Exercise Its Supervisory Powers

and Review the Decision cf the Court Below in This

Case Because the Court Below Deviated Radically

From the Procedural and Substantive Rules Govern-

ing Disposition of a Case on a Motion for Summary

FOGMINE on ics ctewenyticesskseeke ean 30

CORI. osc i iv icveudeeents beens e eee 42

Appenpix A—Court of Appeals Order Denying Petition for

EET PTET Pe re ee Al

AppEeNnpix B—Court of Appeals Opinion Issued on March 19,

FED .o cc:'x canis dads 0d'esn00s beeete gh elena A3

TABLE OF CITATIONS.

Cases Cited: Page

Bernitsky v. United States, 463 F. Supp. 1121 (E. D. Pa.

1979), affd, No. 79-1453 (3d Cir. March 19, 1980)

10, 13, 19, 23, 29, 30, 31

Hatahley v. United States, 351 U. S. 173 (1956) ........ 15, 16, 17,

19, 20, 23

Indian Towing Co. v. United States, 350 U. S. 61 (1955) ...15, 20,

22,23 .

Poller v. Columbia Broadcasting System, 368 U. S. 464 (1962)

41, 42

Statutes Cited:

Act of June 25, 1948, c. 646, 62 Stat. 928, 28 U.S.C. §1254(1) . 2

Clean Air Act Amendments of 1977, 91 Stat. 685, 1400, 42

U.S. C. §§ 7401, et seq.:

EE Me LOS ela ver sh bape antsd ean kéeerenaneas 24

91 Stat. 1400, 1404, 42 U.S. C. § 7413 ................ 24

fe ee a ee | ee errerry errr 25

Federal Coal Mine Health and Safety Act of 1969, 83 Stat.

742, 30 U.S. C. §$§ 801, et seq.:

OS EERGhG Sods Wu kd bea bin Keaciee esas 7, 8, 20, 23

oo vou, oe U.S.C. SGI) oo. ccc ccc cccceees 2, 3, 8, 15

Federal Mine Safety and Health Act of 1977, 91 Stat. 1290,

30 U. S. C. §§ 801, et seq.:

aire aes WAS poiseed boy hikes) Rave eens 7, 18,24

rn me ee ae, Oe, AS, GOED... cscckwvn nese sows 24

Ne a ry re er 25

Federal Tort Claims Act, 62 Stat. 933, 982, 28 U. S. C.

§§ 1346(b), 2671, et seq.:

a ae 1, 2, 9, 10, 15, 19, 20, 21, 24, 25, 27, 29, 32

See ee, Be ha CED) 6 ccevcc ns scosevunsue 3,9

Occupational Safety and Health Act of 1970, 84 Stat. 1590,

29 U.S. C. §§ 651, et seq.:

NST ESOT ET CTE CTEURTT IESE CORT ee TTT 24

ee, Oe al May BOE bikip bdieces vceeveesepvte 24

84 Stat. 1601, 29 U. S. C. §§ 658-659 .................. 25

TABLE OF CITATIONS (Continued).

Rule Cited: Page

a i i ele aes) oe eh ae oe 2, 4, 31, 42

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

Anp Now, this 10th day of July, 1980, Joseph

Bernitsky, Albert Bernitsky, Vincent Bernitsky and George

Stenulis, individually and trading as Bernitsky Brothers

Coal Company, Slope No. 2, your Petitioners, respectfully

pray that this Honorable Court grant a Writ of Certiorari

to review a Judgment of the United States Court of

Appeals for the Third Circuit dated March 19, 1980, by

which that court affirmed the Judgment of the United

States District Court for the Eastern District of Penn-

sylvania, and granted Respondent's Motion for Summary

Judgment on the basis of the discretionary function ex-

ception to the Federal Government’s liability for negli-

gence under the Federal Tort Claims Act, 62 Stat. 933, 982,

28 U.S. C. §§ 1346(b), 2671, et seq. although the District

Court had not passed upon the Motion for Summary Judg-

ment but, rather, had granted a Motion to Dismiss on a

legal theory—and in a procedural posture—entirely dif-

ferent from the theory and posture adopted by the Court

of Appeals.

OPINIONS BELOW.

Attached hereto as Appendix A is a copy of the Order

of the court below issued on April 11, 1980 by the United

States Court of Appeals for the Third Circuit at its No.

79-1453 denying Petitioners’ Petition for Rehearing; at-

tached hereto as Appendix B is a copy of the Opinion of

the court below issued on March 19, 1980 by the United

States Court of Appeals for the Third Circuit at its No.

79-1453; and attached hereto as Appendix C is a copy

of the Opinion issued in this case by the United States

District Court for the Eastern District of Pennsylvania

which is reported at 463 F. Supp. 1121 (1979).

2 Petition for a Writ of Certiorari

JURISDICTION.

This Honorable Court has jurisdiction to grant a

Writ of Certiorari pursuant to the Act of June 25, 1948,

c. 646, 62 Stat. 928, 28 U. S. C. § 1254(1), the judgment

of the United States Court of Appeals for the Third Cir-

cuit having been entered on March 19, 1980, Petitioners’

Petition for Rehearing having been denied by the court

below on April 11, 1980 and the instant Petition having

been filed within ninety (90) days of that date.

STATEMENT OF THE QUESTIONS PRESENTED.

1. Is the Federal Government liable under the Federal

Tort Claims Act, 62 Stat. 933, 982, 28 U. S. C. §§ 1346(b),

2671, et seq., for the negligence of a federal coal mine

inspector who issues an order of withdrawal closing a coal

mine for a violation of the Federal Coal Mine Health and

Safety Act of 1969, 83 Stat. 742, 30 U. S. C. §§ 801, et seq.,

where: (1) the steps previously taken by the operators to

abate the violation had been specifically approved by the

Mine Enforcement Safety Administration; (2) the order of

withdrawal issued by the federal coal mine inspector pre-

vented the operators from entering their coal mine to

make necessary repairs at the working area of the coal

mine; (3) the coal mine collapsed because the operators

were prevented by the order of withdrawal from entering

the coal mine to conduct repairs necessary to prevent the

collapse of the coal mine; and (4) as the result of the

collapse of the coal mine the operators lost approximately

two million five hundred ninety-one thousand dollars

( $2,591,000.00) worth of coal and equipment?

2. Does Fed. R. Civ. P. 56 prevent a United States

Court of Appeals from granting a Motion for Summary

Petition for a Writ of Certiorari 3

Judgment where: (1) the District Court, whose Judgment

is up for review, has never passed on the Motion for

Summary Judgment; (2) the Court of Appeals has failed

to consider the entire record, including, inter alia, the

pleadings and depositions filed of record; and (3) the

entire record establishes that issues exist as to material

facts?

RELEVANT STATUTES AND RULES.

Section 2680(a) of the Federal Tort Claims Act, 62

Stat. 984, 28 U. S. C. § 2680(a):

“The provisions of this chapter and _ section

1346(b) of this title shall not apply to—

(a) Any claim based upon an act or omis-

sion of an employee of the Government, exer-

cising due care, in the execution of a statute or

regulation, whether or not such statute or regu-

lation be valid, or based 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 Govern-

ment, whether or not the discretion involved be

abused... .”

Section 104(b) of the Federal Coal Mine Health and

Safety Act of 1969, 83 Stat. 750, 30 U. S. C. § 814(b):

“Except as provided in subsection (i) of this

section, if, upon any inspection of a coal mine, an

authorized representative of the Secretary finds that

there has been a violation of any mandatory health

or safety standard but the violation has not created

an imminent danger, he shall issue a notice to the

4 Petition for a Writ of Certiorari

operator or his agent fixing a reasonable time for

the abatement of the violation. If, upon the expira-

tion of the period of time as originally fixed or sub-

sequently extended, an authorized representative of

the Secretary finds that the violation has not been

totally abated, and if he also finds that the period

of time should not be further extended, he shall find

the extent of the area affected by the violation and

shall promptly issue an order requiring the operator

of such mine or his agent to cause immediately all

persons, except those referred to in subsection (d)

of this section, to be withdrawn from, and to be pro-

hibited from entering, such area until an authorized

representative of the Secretary determines that the

violation has been abated.”

Fed. R. Civ. P. 56:

“(a) For Claimant. A party seeking to recover

upon a claim, counterclaim, or cross-claim or to obtain

a declaratory judgment may, at any time after the

expiration of 20 days from the commencement of

the action or after service of a motion for summary

judgment by the adverse party, move with or without

supporting affidavits for a summary judgment in his

favor upon all or any part thereof.

“(b) For Defending Party. A party against

whom a claim; counterclaim, or cross-claim is asserted

or a declaratory judgment is sought may, at any time,

move with or without supporting affidavits for a sum-

mary judgment in his favor as to all or any part

thereof.

“(c) Motion and Proceedings Thereon. The mo-

tion shall be served at least 10 days before the time

fixed for the hearing. The adverse party prior to the

Petition for a Writ of Certiorari 5

day of hearing may serve opposing affidavits. The

judgment sought shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judg-

ment as a matter of law. A summary judgment, inter-

locutory in character, may be rendered on the issue

of liability alone although there is a genuine issue as

to the amount of damages.

“(d) Case Not Fully Adjudicated on Motion. If

on motion under this rule judgment is not rendered

upon the whole case or for all the relief asked and a

trial is necessary, the court at the hearing of the

motion, by examining the pleadings and the evi-

dence before it and by interrogating counsel, shall if

practicable ascertain what material facts exist without

substantial controversy and what material facts are

actually and in good faith controverted. It shall

thereupon make an order specifying the facts that

appear without substantial controversy, including the

extent to which the amount of damages or other relief

is not in controversy, and directing such further pro-

ceedings in the action as are just. Upon the trial of

the action the facts so specified shall be deemed estab-

lished, and the trial shall be conducted accordingly.

“(e) Form of Affidavits; Further Testimony; De-

fense Required. Supporting and opposing affidavits

shall be made on personal knowledge, shall set forth

such facts as would be admissible in evidence, and

shall show affirmatively that the affiant is competent

to testify to the matters stated therein. Sworn or

certified copies of all papers or parts thereof referred

Petition for a Writ of Certiorari

to in an affidavit shall be attached thereto or served

therewith. The court may permit affidavits to be

supplemented or opposed by depositions, answers to

interrogatories, or further affidavits. When a motion

for summary judgment is made and supported as pro-

vided in this rule, an adverse party may not rest upon

the mere allegations or denials of his pleading, but

his response, by affidavits or as otherwise provided

in this rule, must set forth specific facts showing that

there is a genuine issue for trial. If he does not so

respond, summary judgment, if appropriate, shall be

entered against him.

“(£) When Affidavits are Unavailable. Should it

appear from the affidavits of a party opposing the

motion that he cannot for reasons stated present by

affidavit facts essential to justify his opposition, the

court may refuse the application for judgment or may

order a continuance to permit affidavits to be obtained

or depositions to be taken or discovery to be had or

may make such other order as is just.

“(g) Affidavits Made in Bad Faith. Should it

appear to the satisfaction of the court at any time

that any of the affidavits presented pursuant to this

rule are presented in bad faith or solely for the pur-

pose of delay, the court shall forthwith order the

party employing them to pay to the other party the

amount of the reasonable expenses which the filing

of the affidavits caused him to incur, including reason-

able attorney’s fees, and any offending party or attor-

ney may be adjudged guilty of contempt.”

Petition for a Writ of Certiorari 7

STATEMENT OF THE CASE.

Petitioners ' commenced this action against Respond-

ent United States of America on March 19, 1976 by filing

a Complaint with the Clerk of the United States District

Court for the Eastern District of Pennsylvania seeking

money damages flowing from the collapse of Petitioners’

coal mine as a result of the negligence of federal coal

mine inspectors. Petitioners filed an Amended Complaint

on May 3, 1976, and a Second Amended Complaint on

January 24, 1977.

The events which prompted Petitioners to institute

this action began on August 11, 1971 when Petitioners

were cited by a federal coal mine inspector for a violation

of the regulations promulgated pursuant to the Federal

Coal Mine Health and Safety Act of 1969, 83 Stat. 742,

30 U. S. C. §§ 801, et seq. (hereinafter referred to as the

“Coal Mine Act”) * for failure to provide a sanitary toilet

facility in the active working section of Petitioners’ coal

mine. Thereafter, Petitioners purchased a sanitary toilet

facility, and on September 16, 1971 the violation for which

Petitioners had been cited on August 11, 1971 was found

to have been abated by the federal coal mine inspector

who had issued the original citation.

For approximately two years, between September 16,

1971 and July 11, 1973, Petitioners utilized the toilet fa-

cility purchased with the knowledge and approval of

agents, servants and employees of the Federal Government.

However, on July 11, 1973 Petitioners were cited by a

federal coal mine inspector for failure to have a sanitary

1. Petitioners own, operate and mine the Bernitsky Brothers

Coal Company, Slope Number 2 Mine which is a small anthracite

coal mine located in Silver Creek, Schuylkill County, Pennsylvania.

2. The Coal Mine Act has been replaced by the Federal Mine

Safety and Health Act of 1977, 91 Stat. 1290, 30 U. S. C. §§ 801,

et seq.

8 Petition for a Writ of Certiorari

toilet facility in the active working section of the mine

which was of an “approved type”. On February 13, 1974

an order of withdrawal was issued pursuant to Section

104(b) of the Coal Mine Act, 83 Stat. 750, 30 U. S. C.

§ 814(b), preventing Petitioners from entering the coal

mine to conduct mining operations. Because the order

of withdrawal prohibited Petitioners from shoring up the

coal mine, the mine collapsed in April 1974 resulting in

the loss of more than two and one-half million dollars

worth of coal and equipment. In April 1975 the order

of withdrawal issued to Petitioners on February 13, 1974

was lifted even though the same sanitary toilet facility for

which the order of withdrawal was issued was still being

utilized by Petitioners.

Petitioners allege in their pleadings that the United

States Government, acting by and through its duly author-

ized agents, representatives, servants and employees, care-

lessly and negligently issued the July 11, 1973 notice of

violation and subsequent order of withdrawal closing

Petitioners’ coal mine, and that such negligence resulted

in the collapse of the Bernitsky Brothers Coal Company

Slope No. 2 Mine and consequent financial losses to Peti-

tioners. Petitioners allege that the negligence of Respond-

ent consisted of issuance of a citation and order of with-

drawal when, in fact, the condition giving rise to the

citation and order of withdrawal did not constitute a vio-

lation of the Coal Mine Act since the sanitary toilet facility

being utilized by Petitioners in the active working section

of their coal mine had been approved by Respondent.

Respondent filed its Answer to Petitioners’ Second

Amended Complaint on February 26, 1977 and generally

denied the allegations set forth in Petitioners’ Second

Amended Complaint. In addition, Respondent set forth

several affirmative defenses in its Answer to Petitioners’

Second Amended Complaint, including, inter alia, that

Petition for a Writ of Certiorari 9

Petitioners failed to state a claim upon which relief could

be granted, and that the court lacked subject matter juris-

diction over Respondent because the acts complained of

in Petitioners’ Second Amended Complaint are specifically

excluded from the Federal Tort Claims Act, 62 Stat. 933,

982, 28 U. S. C. §§ 1346(b), 2671, et seq. (hereinafter

referred to as the “Tort Claims Act”) by Section 2680(a)

of the Tort Claims Act, 62 Stat. 984, 28 U. S. C. § 2680(a).

On December 8, 1977 Respondent filed a Motion to

Dismiss or In the Alternative For Summary Judgment

contending that: (1) the Coal Mine Act did not give rise

to a private right of action against the United States;

(2) the Coal Mine Act did not give rise to a duty on the

part of the United States under the Tort Claims Act since

no corresponding duty exists under the law of the Com-

monwealth of Pennsylvania; and (3) Petitioners’ claims

were barred by the discretionary function exception to

the Federal Government's liability for negligence under

the Tort Claims Act, 62 Stat. 984, 28 U. S. C. § 2680(a)

(hereinafter referred to as the “discretionary function

exception’ ).

The United States District Court for the Eastern Dis-

trict of Pennsylvania (Troutman, J.) held that the Coal

Mine Act did not give rise to a private right of action

against the United States, and stated that:

“Although the Government employees in question

were acting pursuant to the Coal Mine Health and

Safety Act of 1969, 30 U. S. C. § 801 et seq., there

is no indication that said Act was intended to create

a private cause of action against the United States.

The purpose of the Act is to protect the health and

safety of miners, and to that end the Act provides for

standards for safety and health, and enforcement pro-

cedures to ensure that such standards are met. Mine

10 Petition for a Writ of Certiorari

operators have remedies, including both administrative

and judicial review, if they feel certain conduct by

enforcement officials was improper at any point, but

there is simply nothing in the Act indicating that a

cause of action has been created on behalf of mine

operators against the United States as a result of

alleged misconduct by officials in conducting inspec-

tions or otherwise enforcing the provisions of the Act.

Accordingly, we hold that the Coal Mine [sic] and

Safety Act of 1969 does not create an independent

cause of action in this case.” Bernitsky v. United

States, 463 F. Supp. 1121, 1122-1123 (E. D. Pa. 1979).

The District Court also concluded that the Coal Mine

Act did not give rise to a duty on the part of the United

States under the Tort Claims Act, and stated:

“Additionally, there is nothing in the law of Penn-

sylvania indicating that a cause of action exists on

behalf of coal mine operators for improper closure of

coal mines under the provisions of the Coal Mine

Health and Safety Act of 1969. See Devlin Lumber

and Supply Corp. v. United States, 488 F. 2d 88 (4th

Cir. 1973), Davis v. United States, 395 F. Supp. 793

(D. Neb. 1975), affirmed per curiam, 536 F. 2d 758

(8th Cir. 1976). In Blessing v.. United States, 447

F. Supp. 1160 (E. D. Pa. 1978), Judge Becker held

that under certain circumstances the United States

could be liable to injured employees for an alleged

improper inspection by Occupational Safety and

Health Act inspectors, but grounded such considera-

tions upon a finding that Pennsylvania recognizes the

‘good Samaritan’ rule in which one who undertakes

to render service for another is liable for negligent

rendering of said services if the negligence causes

Petition for a Writ of Certiorari 11

injury. There is no equivalent Pennsylvania rule on

which liability of the United States to coal mine

operators can be grounded for damages allegedly re-

sulting from improper closure or other enforcement

activity under the Coal Mine Health and Safety Act

of 1969.

“Similarly, the common law does not recognize

a cause of action under these circumstances. Federal

case law has repeatediy held that federal inspection

does not create a tort duty. See Kirk v. United States,

161 F. Supp. 722 (D. Idaho 1958), affirmed, 270 F. 2d

110 (9th Cir. 1959); Fisher v. United States, 441 F. 2d

1288, 1292 (3d Cir. 1971), and cases cited therein;

Chaneyfield v. City of New York, et al., 525 F, 2d

1333 (2d Cir. 1975); Zabala Clemente v. United

States, 567 F. 2d 1140 (1st Cir. 1977); Social Security

Administration Baltimore Federal Credit Union v.

United States, 138 F. Supp. 639 (D. Md. 1956); Davis

v. FDIC, 369 F. Supp. 277 (D. Colo. 1974); In re

Franklin National Bank Securities Litigation, 445 F.

Supp. 723 (E. D. N. Y. 1978).” 463 F. Supp. at 1123.

Petitioners filed a Motion for Reargument with the

United States District Court for the Eastern District of

Pennsylvania on January 22, 1979, and Respondent op-

posed Petitioners Motion for Reargument on January 26,

1979. Following a hearing regarding Petitioners’ Motion

for Reargument an Order was entered by the District

Court on February 28, 1979 denying Petitioners’ Motion

to Vacate the Court’s Order of January 11, 1979. Peti-

tioners then filed a timely Notice of Appeal from the Order

of the United States District Court for the Eastern District

of Pennsylvania on March 1, 1979. Petitioners’ appeal

was docketed with the United States Court of Appeals for

the Third Circuit on March 21, 1979 at its No. 79-1453.

12 Petition for a Writ of Certiorari

Oral argument on the opposing briefs of Petitioners

and Respondent was held before the United States Court

of Appeals for the Third Circuit (Gibbons, Higginbotham

and Sloviter, Circuit Judges) on November 16, 1979. On

March 19, 1980 the Court of Appeals (per Sloviter, J.)

issued its Judgment affirming the Judgment of the District

Court. However, the Court of Appeals chose to “dispose

of this case on other grounds” and never reached the

underlying substantive issues of duty which had been

passed upon by the District Court. Instead, the Court of

Appeals ignored Respondent’s Motion to Dismiss and

granted, mea sponte, Respondent’s Motion for Summary

Judgment relying upon the discretionary function excep-

tion to the Federal Government's liability for negligence

under the Tort Claims Act.* The Court of Appeals ruled

at pages 8-10 of its opinion, that:

3. The Court of Appeals, in its opinion, stated that:

“The procedural posture of this case merits some comment.

The district court granted the Government's motion to dismiss

treating the issue raised as one of law. In this case the affi-

davits and accompanying material submitted in connection

with the Government's Alternative Motion for Summary Judg-

ment shed light on the propriety of a dismissal because of the

discretionary function exception. Our review of the record

shows that we have the factual basis upon which to make the

determination relating to the application of the discretionary

function provision. Since Bernitsky had a reasonable oppor-

tunity to present opposing affidavits and other evidence, and

failed to show that there was any disputed issue of fact as to a

material issue, a grant of summary judgment would have been

appropriate. See note 3 supra. Therefore, we see no reason

to remand the case to the district court for disposition, and for

the sake of judicial economy we will affirm the dismissal on

the basis of the discretionary function exception. See Sprague

v. Fitzpatrick, 546 F. 2d 560, 563 n. 4 (3d Cir. 1976), cert.

denied, 431 U. S. 937 (1977).

Petition for a Writ of Certiorari 13

«<<

. . ven though Bernitsky has sought to cast

its claim in terms of negligence, a review of the

material filed in connection with the Motion to Dis-

miss, or in the Alternative for Summary Judgment,

establishes that piaintiff claims neither that there was

any negligent inspection nor that there was negli-

gence premised upon the failure to inspect. On the

contrary, the inspection accurately disclosed that

there was a nonconforming facility. Once that was

evident, the inspector issued the notice of violation,

within his statutory authority, 30 U. S. C. § 814(b)

(1976), and, when the violation remained uncor-

rected after seven months and three extensions of

time, the order was issued closing the mine. In

essence, Bernitsky complains not of any negligent

action but of regulatory enforcement action, i.e. that

the mine was closed, which Bernitsky argues was not

reasonable under the circumstances. It is precisely

that kind of judgment which the discretionary func-

tion exception encompasses.”

The Court of Appeals granted Respondent’s Motion

for Summary Judgment based upon the affidavits and

deposition excerpts incorporated in Respondent’s Motion.

The Court of Appeals did not consider the deposition testi-

mony filed of record in this case with the United States

District Court as a whole.‘

3. (Cont'd. )

Accordingly, we will affirm the judgment of the district

court.” Bernitsky v. United States, No. 79-1453, slip op. at

16-17 (3d Cir. March 19, 1980).

4, Specific portions of that testimony were incorporated in

Petitioners’ Petition for Rehearing filed with the Court of Appeals

on April 1, 1980, and are set forth at pages 32-41, infra.

14 Petition for a Writ of Certiorari

On April 1, 1980 Petitioners filed a Petition for Re-

hearing with the United States Court of Appeals for te

Third Circuit, which Petition was denied by that court on

April 11, 1980.

Petitioners petition herewith for review of the Judg-

ment issued in this case by the United States Court of

Appeals for the Third Circuit on March 19, 1980 and as

to which rehearing was denied by that court’s Order of

April 11, 1980.

Petition for a Writ of Certiorari 15

REASONS FOR GRANTING THE WRIT.

I. This Court Should Grant the Instant Petition for the

Reason That the Decision of the Court Below Directly

Conflicts With the Holdings of This Court in Hatahley

v. United States, 351 U.S. 173 (1956), and Indian Towing

Co. v. United States, 350 U. S. 61 (1955).

In Indian Towing Co. v. United States, 350 U. S. 61

(1955), this Court held that the discretionary function

exception did not operate as a blanket exemption from

liability for the Federal Government when its agents were

engaging in “uniquely governmental” functions at the

time of their negligence. This Court further limited the

scope of the discretionary function exception in Hatahley

v. United States, 351 U. S. 173 (1956), by holding that

where agents of the Federal Government aie authorized

to act by a federal statute or regulation and they exceed

the authority granted by the statute or regulation, the

Federal Government is liable for their negligence and the

discretionary function exception to the Federal Govern-

ment’s liability under the Tort Claims Act does not apply.

In the present case, federal coal mine inspectors

issued a citation and order of withdrawal against Peti-

tioners pursuant to Section 104(b) of the Coal Mine Act,

83 Stat. 750, 30 U. S. C. § 814(b), for failure to have a

sanitary toilet facility of an “approved type” in the active

working section of Petitioners’ coal mine. However, Peti-

tioners did have a sanitary toilet facility in the active

working section of their coal mine which was in fact

approved.” Under these circumstances the federal coal

5. See pages 32-41, infra. Whether the sanitary toilet facility

in the active working section of Petitioners’ coal mine was in fact

approved by agents of Respondent is, of course, at worst a question

of fact the final resolution of which should properly be determined

at a trial on the merits.

16 Petition for a Writ of Certiorari

mine inspector who issued the citation and order of with-

drawal to Petitioners acted without statutory or regulatory

authority because the Coal Mine Act does not authorize

the imposition of sanctions against coal mine operators

where no violation of the Coal Mine Act in fact exists.

Therefore, the discretionary function exception does not

apply in the present case. Hatahley v. United States, 351

U. S. at 180-181.

In Hatahley this Court considered the liability of the

Federal Government for the alleged negligence of federal

agents who attempted to enforce the Taylor Grazing Act

and the Federal Range Code issued thereunder. The

federal agents failed properly to comply with the pro-

visions of the Federal Range Code and therefore acted

without statutory authority. This Court stated, in

Hatahley, that:

“But, having concluded that there was no statu-

tory authority, we are faced with the question whether

the Government is liable under the Federal Tort

Claims Act for wrongful and tortious acts of its em-

ployees committed in an attempt to enforce a federal

statute which they administer. We believe there is

such liability in the circumstances of this case.

“Section 1346(b) of Title 28, United States Code,

authorizes suits against the Government for ‘loss of

property . . . caused by the negligent or wrongful

act . . . of any employee of the Government while

acting within the scope of his office or employment,

under circumstances where the United States, if a

private person, would be liable to the claimant in ac-

cordance with the law of the place where the act

. occurred. It is clear that the federal agents

here were acting within the scope of their employ-

ment under both state and federal law. Under the

Petition for a Writ of Certiorari 17

law of Utah an employer is liable to third persons for

the willful torts of his employees if the acts are com-

mitted in furtherance of the employer's interests or

if the use of force could have been contemplated in

the employment. Cf. Barney v. Jewel Tea Co., 104

Utah 292, 139 P. 2d 878. Both of these conditions

obtained here. The federal agents were attempting

to enforce the federal range law, and such enforce-

ment must contemplate at least the force used in re-

moval of stock from the range. The fact that the

agents did not have actual authority for the procedure

they employed does not affect liability. There is an

area, albeit a narrow one, in which a government

agent, like a private agent, can act beyond his actual

authority and yet within the scope of his employment.

We note also that § 1346(b) provides for liability for

‘wrongful’ as well as ‘negligent’ acts. In an earlier

case the Court has pointed out that the addition of

this word was intended to include situations like this

involving ‘ “trespasses” which might not be considered

strictly negligent.’ Dalehite v. United States, 346

U. S. 15, 45.

° 9 °

The first portion of section [2680](a) cannot apply

here, since the government agents were not exercising

due care in their enforcement of the federal law.

‘Due care’ implies at least some minimal concern for

the rights of others. Here, the agents proceeded with

complete disregard for the property rights of the

petitioners. Nor can the second portion of (a) exempt

the Government from liability. We are here not con-

cerned with any problem of a ‘discretionary function’

under the Act, see Dalehite v. United States, supra.

18 Petition for a Writ of Certiorari

These acts were wrongful trespasses not involving

discretion on the part of the agents, and they do give

rise to a claim compensable under the Federal Tort

Claims Act.” 351 U. S. at 180-181 (emphasis added).

Under the holding of this Court in Hatahley where an agent

of the Federal Government acts outside of his statutory

authority he commits a trespass," and where he acts negli-

gently, the Federal Government will be liable for the

damages sustained by the victim of the trespass. Never-

theless the court below concluded that:

“The record in this case discloses that the Mining

Enforcement and Safety Administration sent repre-

sentatives to meetings of inspectors at various district

offices to call the inspectors’ attention to the factors

they should consider in exercising their discretion

whether to issue notices and grant extensions. A

speech, prepared by the Chief of Safety of MESA™,

and delivered on his behalf by Frank Henderson, a

Coal Mine Specialist, at a district meeting attended

by Inspector Updegrave, the inspector who issued the

Withdrawal Order in this case, stressed the need for

determination of what is a ‘reasonable time’ for the

6. Petitioners will be entitled to recover damages from Re-

spondent under this Court's holding in Hatahley if they simply

demonstrate that Respondent's agents committed “wrongful tres-

passes.” 351 U. S. at 181.

7. The Mine Enforcement and Safety Administration was es-

tablished as a subdivision of the United States Department of the

Interior and was charged with enforcement of the Coal Mine Act.

MESA has been replaced by MSHA, Mine Safety and Health Ad-

ministration, which is a subdivision of the United States Depart-

ment of Labor, and which is charged with enforcement of the

Federal Mine Safety and Health Act of 1977, 91 Stat. 1290, 30

U.S. C. §§ 801, et seq.

Petition for a Writ of Certiorari 19

abatement period, and whether ‘due diligence has

been exercised in an attempt to gain compliance’ be-

fore extensions are granted. It is apparent from the

foregoing that the decisions regarding issuance of a

notice of violation, extensions of time, and orders of

withdrawal must be made by the individual inspectors

on the basis of their experience and judgment, and

therefore fall within the scope of the discretionary

function exception. They are ‘matters involving

balancing of policy considerations in advancing the

public interest.’ Griffin v. United States, 500 F. 2d

1059, 1064 (3d Cir. 1974). Decision making as to

investigation and enforcement, particularly when

there are different types of enforcement action avail-

able, are discretionary judgments. In re Air Crash

Disaster Near Silver Plume, Colorado, 445 F. Supp.

384, 401-04 (D. Kan. 1977); see First National Bank

in Albuquerque v. United States, 552 F. 2d 370, 375-

76 (10th Cir.), cert. denied, 434 U. S. 835 (1977).

Thus, in making the determination of the course to

follow, the MESA inspector must use his or her judg-

ment as to the manner in which the statutory author-

ity can best be effectuated, an act which cannot sub-

ject the government to tort liability.” Bernitsky v.

United States, No. 79-1453, slip op. at 13-14 (3d Cir.

March 19, 1980).

This holding directly conflicts with this Court’s decision in

Hatahley. The manner in which federal coal mine in-

spectors arrived at the conclusion that they should not

grant additional extensions of time for Petitioners to abate

the condition resulting in issuance of the citation is not

relevant to the determination of whether the Federal

Government is liable pursuant to the Tort Claims Act

20 Petition for a Writ of Certiorari

under the facts of the present case. Because the federal

coal mine inspector who issued the order of withdrawal

on February 13, 1974 acted without statutory authority—

no violation of the Coal Mine Act in fact existed at Peti-

tioners’ coal mine because the sanitary toilet facility in the

active working section of the coal mine was approved by

Respondent—then the discretionary function exception

does not apply in the present case. Hatahley v. United

States, 351 U. S. at 181.

In Indian Towing Co. v. United States, 350 U. S. 61

(1955), this Court specifically held that the “uniquely

governmental” nature of the activity is not determinative

of the applicability of the discretionary function exception

to the liability of the Federal Government under the Tort

Claims Act. In Indian Towing Co., Petitioner sought to

recover for damage to the cargo of a barge which ran

aground due to the alleged failure of the United States

Coast Guard to properly maintain a lighthouse operated

by the Coast Guard to guide vessels traveling in and about

Chandeleur Island. This Court reversed the holding of

the United States Court of Appeals for the Fifth Circuit

and remanded the case to the United States District Court

for the Eastern District of Louisiana stating that:

“While the area of liability is circumscribed by

certain provisions of the Federal Tort Claims Act,

see 28 U. S. C. § 2680, all Government activity is

inescapably ‘uniquely governmental’ in that it is per-

formed by the Government. In a case in which the

Federal Crop Insurance Corporation, a wholly Gov-

ernment-owned enterprise, was sought to be held

liable on a crop-insurance policy on the theory that

a private insurance company would be liable in the

same situation, this Court stated: “Government is not

partly public or partly private, depending upon the

Petition for a Writ of Certiorari 21

governmental pedigree of the type of a particular

activity or the manner in which the Government con-

ducts it.’ Federal Crop Insurance Corp. v. Merrill,

332 U. S. 380, 383-384. On the other hand, it is hard

to think of any governmental activity on the ‘opera-

tional level,’ our present concern, which is ‘uniquely

governmental,’ in the sense that its kind has not at

one time or another been, or could not conceivably

be, privately performed.

There is nothing in the Tort Claims Act which

shows that Congress intended to draw distinctions so

finespun and capricious as to be almost incapable of

being held in the mind for adequate formulation. The

statute was the product of nearly thirty years of con-

gressional consideration and was drawn with numer-

ous substantive limitations and administrative safe-

guards. ... The language of the statute does not

support the Government’s argument. Loose general

statements in the legislative history to which the

Government points seem directed mainly toward the

‘discretionary function’ exemption of § 2680 and are

not persuasive. The broad and just purpose which

the statute was designed to effect was to compensate

the victims of negligence in the conduct of govern-

mental activities in circumstances like unto those in

which a private person would be liable and not to

leave just treatment to the caprice and legislative

burden of individual private laws... .” Indian Tow-

ing Co. v. United States, 350 U. S. at 67-69 (Frank-

furter, J.)

This Court has refused to permit the discretionary

function exception to operate as a “blanket exemption” to

liability under the Tort Claims Act where the activity

ad

22 Petition for a Writ of Certiorari

involved is “uniquely governmental”. As this Court fur-

ther stated in Indian Towing Co.:

“While the Government disavows a_ blanket

exemption from liability for all official conduct fur-

thering the ‘uniquely governmental’ activity in any

wey, it does claim that there can be no recovery based

on the negligent performance of the activity itself, the

so-called ‘end-objective’ of the particular govern-

mental activity. Let us suppose that the Chief Petty

Officer going in a Coast Guard car to inspect the light

on Chandeleur Island first negligently ran over a

pedestrian; later, while he was inspecting the light,

he negligently tripped over a wire and injured some-

one else; he then forgot to inspect an outside connec-

tion and that night the patently defective connection

broke and the light failed, causing a ship to go aground

and its cargo of triple super phosphate to get wet;

finally the Chief Petty Officer on his way out of the

lighthouse touched a key to an uninsulated wire to

see that it was carrying current, and the spark he pro-

duced caused a fire which sank a nearby barge carry-

ing triple super phosphate. Under the Government's

theory, some of these acts of negligence would be

actionable, and some would not. But is there a ra-

tional ground, one that would carry conviction to

minds not in the grip of technical obscurities, why

there should be any difference in result? The acts

were different in time and place but all were done

in furtherance of the officer's task of inspecting the

lighthouse and in furtherance of the Coast Guard's

task in operating a light on Chandeleur Island. More-

over, if the United States were to permit the operation

of private lighthouses—not at all inconceivable—the

Government’s basis of differentiation would be gone

and the negligence charged in this case would be

Petition for a Writ of Certiorari 23

actionable. Yet there weuld be no change in the

character of the Government's activity in the places

where it operated a lighthouse, and we would be

attributing bizarre motives to Congress were we to

hold that it was predicating liability on such a com-

pletely fortuitous circumstance—the presence or ab-

sence of identical private activity.” 350 U. S. at 66-67.

Therefore, the court below erroneously concluded that

the nature of the “uniquely governmental” regulatory ac-

tivity involved in the present case necessarily involved

discretion.* .

No discretion is granted by the Coal Mine Act to

federal coal mine inspectors to issue citations and orders

of withdrawal where a violation of the Coal Mine Act

does not in fact exist. Therefore, the only consideration

relevant to determining the liability of the Federal Gov-

ernment in the present case, under the holdings of this

Court in Hatahley v. United States, 351 U. S. 173 (1956),

and Indian Towing Co. v. United States, 350 U. S. 61

(1955), is whether the July 11, 1973 citation and February

13, 1974 order of withdrawal were properly issued in the

present case. Petitioners contend that if they were in fact

in compliance with the Coal Mine Act then the federal

coal mine inspector did not have the statutory authority

to issue the citation and order of withdrawal and the

Federal Government is therefore liable. Hatahley v.

United States, 351 U. S. 173 (1956); Indian Towing Co. v.

United States, 350 U.S. 61 (1955).

8. The court below stated that:

“ . . [I]n making the determination of the course to fol-

low, the MESA inspector must use his or her judgment as to

the manner in which the statutory authority can best be

effectuated, an act which cannot subject the government to

tort liability.” Bernitsky v. United States, slip op. at 14.

24 Petition for a Writ of Certiorari

II. This Court Should Settle an Important Question of Fed-

eral Law Regarding the Liability of the Federal Govern-

ment Pursuant to the Tort Claims Act for the Failure

of Federal Agents to Exercise Due Care in the Enforce-

ment of a Federal Statute or Regulation.

This Court should grant the instant Petition and

establish the criteria for determining whether an action

brought under the Tort Claims Act for the negligence of

agents of the Federal Government in enforcing a federal

statute or regulation falls within the discretionary function

exception to the liability of the Federal Government under

the Tort Claims Act. The issue of the applicability of the

discretionary function exception to actions commenced

under the Tort Claims Act for the negligence of the

Federal Government in enforcing federal statutes and

regulations has not yet been decided by this Court. Fed-

eral regulation has been proliferating in recent years, espe-

cially in the areas of health and safety regulation.’ The

Federal Government has, therefore, become increasingly

involved in private business and industry. Federal in-

spectors have been given the authority to enter private

businesses to determine whether there is compliance with

federal regulations.’ Federal inspectors and agencies

have been granted authority to impose severe penalties

when it is determined that federal regulations have been

9. See, e.g., Federal Mine Safety and Health Act of 1977, 91

Stat. 1290, 30 U. S. C. $§ 801, et seq.; Clean Air Act Amendments

of 1977, 91 Stat. 685, 1400, 42 U. S. C. §§ 7401, et seq.; Occupa-

tional Safety and Health Act of 1970, 84 Stat. 1590, 29 U. S. C.

§§ 651, et seq.

10. See, e.g., 91 Stat. 1297, 30 U. S

. C, § 813; 91 Stat. 1400,

1404, 42 U. S. C. § 7413; 84 Stat, 1598, 29

C. §

U. S. C. § 657,

Petition for a Writ of Certiorari 25

disobeyed." Federal regulatory authority, if abused,

could be devastating to the victims of such abuse.

This Court should establish guidelines for the conduct

of agents of the Federal Government who are engaged in

regulatory activity. Victims of wrongful use of federal

regulatory authority should not be left without a remedy

because the Court has failed to define the limits of the

discretionary function exception in cases like the present

one.”

There is no coherent body of case law governing the

applicability of the discretionary function exception to the

liability of the Federal Government under the Tort Claims

Act in cases involving negligent enforcement of federal

regulatory statutes. The court below, attempting to find

precedent upon which to base its decision in the present

case, stated that:

“There has been a considerable amount of diffi-

culty, recognized by both the courts and the com-

mentators, in applying the discretionary function ex-

ception. In the Supreme Court’s initial interpretation

of the provision, the Court stressed that the exception

was designed to apply to those governmental func-

tions which entail a policy judgment and decision.

Dalehite v. United States, 346 U. S. 15, 36 (1953).

‘It is the discretion of the executive or the adminis-

trator to act according to one’s judgment of the best

course’ which Congress has protected. Id. at 34.

Many of the later cases have focused on the policy

11. See, e.g., 91 Stat. 1300, 30 U. S. C. § 814; 91 Stat. 1400, 42

U. S. C. § 7414; 84 Stat. 1601, 29 U. S. C. §§ 638-659.

12. The holding of the court below will, if permitted to stand,

absolve the Federal Government from liability for the negligence

of all inspectors in the field who are purportedly “enforcing” any

federal regulatory statute.

26

Petition for a Writ of Certiorari

judgment aspect of the circumstances in determining

whether the exception is applicable. See, e.g.,

Huntington Towers, Ltd. v. Franklin National Bank,

559 F. 2d 863, 870 (2d Cir. 1977), cert. denied, 434

U. S. 1012 (1978); First National Bank in Albuquer-

que v. United States, 552 F. 2d 370, 374-75 (10th

Cir.), cert. denied, 434 U. S. 835 (1977); Griffin v.

United States, 500 F. 2d 1059, 1066-67 (3d Cir. 1974).

Others have made the distinction between conduct

at the planning level, which is considered exempt and

conduct at the operational level, which is not. See,

e.g., Driscoll v, United States, 525 F. 2d 136, 138 (9th

Cir. 1975); Spillway Marina, Inc. v. United States,

445 F. 2d 876, 878 (10th Cir, 1971); United Air Lines

v. Wiener, 335 F. 2d 379, 392-93 (9th Cir.), cert.

dismissed, 379 U. S. 951 (1964); Swanson v. United

States, 229 F. Supp. 217, 220 (N. D. Cal. 1964);

Wildwood Mink Ranch v. United States, 218 F. Supp.

67, 76-77 (D. Minn. 1963). Yet another distinction

which has been made, although now of questionable

authority, is that between the sovereign functions of

government, which were stated to be within the

exemption, and the proprietary functions, which were

not. See, e.g., National Mfg. Co. v. United States,

210 F. 2d 263, 277 (8th Cir.), cert. denied, 347 U. S.

967 (1954), but see Indian Towing Co. v. United

States, 350 U. S. 61, 64-65 (1955).

“Although these distinctions may provide some

guidance in explaining the result of the cases, they

do not offer much assistance in the determination

whether the activity in question in a particular case

falls on the side of liability or immunity... .” Ber-

nitsky v. United States, No. 79-1453, slip op. at 5-7

(3d Cir. March 19, 1980) (footnote omitted. )

Petition for a Writ of Certiorari 27

The court below attempted to resolve the legal issues of

this case by analogizing it to other cases brought under

the Tort Claims Act in various jurisdictions and went on

to state that:

“Rather than engage in a semantic attempt to

decide in which category this case falls, we believe

it will be more productive to develop the factual simi-

larities among the vast array of judicial precedent on

this issue.

“The affidavits and deposition testimony incor-

porated therein filed by the Government in support

of its Motion, to which Bernitsky filed no opposing

affidavits, have narrowed Bernitsky’s claim to the

allegation that the inspector negligently issued the

Withdrawal Order, with the consequence being the

collapse of the mine. Since the inspector concededly

had the statutory authority to issue the Withdrawal

Order "*! and accepting, as we must for this purpose,

the causation alleged, the issue thus clearly emerges:

Does the issuance of that Order, however arbitrary

or negligent constitute the exercise of a discretionary

function?

“A review of the case precedent suggests a num-

ber of factual analogs. One line of cases holds that

the issuance or refusal to issue a Government license

or permit falls within the discretionary function ex-

emption. See Lawrence v. United States, 381 F. 2d

989, 990-91 (9th Cir. 1967) (failure to issue permits

to occupy portion of trust patent Indian land); United

13. Petitioners specifically dispute this factual finding of the

court below. See pages 32-41, infra. Petitioners contend here, as

they did in the court below, that the inspector acted without statu-

tory authority to issue the February 13, 1974 order of withdrawal.

oo

28

Petition for a Writ of Certiorari

States v. Morrell, 331 F. 2d 498, 502 (10th Cir. ), cert.

denied, 379 U. S. 879 (1964) (issuance of grazing

permits even when officials allegedly knew the stock

would stray upon and damage lands of plaintiffs);

Chournos v. United States, 193 F. 2d 321, 323-24

(10th Cir. 1951), cert. denied, 343 U. S. 977 (1952)

(denial of permit to graze on public lands); United

States v. Waylyn Corp., 130 F. Supp. 783, 787 (D.

P. R. 1955), affd on other grounds, 231 F. 2d 544

(1st Cir.), cert. denied, 352 U. S. 827 (1956) (with-

holding occupancy permits); Smith v. United States,

101 F. Supp. 87, 88-89 (D. Colo. 1951), appeal dis-

missed, 196 F. 2d 222 (10th Cir. 1952) (reduction of

plaintiffs grazing privileges ).

“Another line of authority with some similarity

to this case is that holding the decision to prosecute

or not to prosecute falls within the discretionary func-

tion. Smith v. United States, 375 F. 2d 243, 247 (5th

Cir.), cert. denied, 389 U. S. 841 (1967); Brooks v.

United States, 152 F. Supp. 535, 537 (S. D. N. Y.

1957). The same is true of a decision when to insti-

tute and prosecute condemnation proceedings. God-

dard v. District of Columbia Redevelopment Land

Agency, 287 F. 2d 343, 345 (D. C. Cir.), cert. denied,

366 U. S. 910 (1961). The decision to abruptly close

garbage dumps at Yellowstone National Park in con-

nection with the management of grizzly bears within

the park was held to entail the type of judgment

exempted by the discretionary function provision,

notwithstanding the claim that the decision resulted

in the death of a camper. Martin v. United States,

546 F. 2d 1355, 1360 (9th Cir. 1976), cert. denied,

432 U. S. 906 (1977). Issuance of a cease and desist

order by the F. D. I. C. if it believes the bank is

Petition for a Writ of Certiorari 29

engaging in unsound practices is a determination left

to the discretion of the agency. Davis v. Federal

Deposit Insurance Corporation, 369 F. Supp. 277, 280

(D. Colo. 1974). In a case with facts somewhat

parallel to the one under consideyation, the court held

a coal mine owner could not bring a Federal Tort

Claims Act case claiming damages as a result of an

administrative decision not to operate a coal mine

seized by the Government under executive authority

in furtherance of the war effort. Old King Coal Co.

v. United States, 88 F. Supp. 124, 125 (S. D. Iowa

1949).

“Bernitsky seeks to distinguish the discretionary

function situation by bringing itself within the line of

authority which appears to authorize a Federal Tort

Claims Act claim for negligent inspection by govern-

ment agents who fail to uncover dangerous conditions

ultimately causing harm to third persons. Blessing v.

United States, 447 F. Supp. 1160 (E. D. Pa. 1978);

Toppi v. United States, 327 F. Supp. 1277 (E. D. Pa.

1971). It also relies on cases under Pennsylvania law

permitting a similar cause of action against private

parties for negligent inspection. Knight v. Otis

Elevator Co., 596 F. 2d 84 (3d Cir. 1979): Evans v.

Otis Elevator Co., 403 Pa. 13, 168 A. 2d 573 (1961).

“Those cases are inapplicable in this situation.”

Bernitsky v. United States, slip op. at 7-9 (footnote

omitted. )

Future uncertainty of parties and courts will be

avoided if this Court defines the scope of the discretionary

function exception to the liability of the Federal Govern-

ment under the Tort Claims Act where, as is alleged in the

present case, agents of the Federal Government fail to

exercise due care in enforcing a federal regulatory statute.

4

30

Petition for a Writ of Certiorari

III. This Court Should Exercise Its Supervisory Powers and

Review the Decision of the Court Below in This Case

Because the Court Below Deviated Radically From the

Procedural and Substantive Rules Governing Disposition

of a Case on a Motion for Summary Judgment.

The United States District Court for the Eastern

District of Pennsylvania dismissed the instant action con-

cluding that Petitioners had failed to state a claim upon

which relief could be granted. Bernitsky v. United States,

463 F. Supp. 1121, 1123 (1979). The court below af-

firmed the judgment of the district court by granting the

Government's Motion for Summary Judgment stating:

“The procedural posture of this case merits some

comment. The district court granted the Govern-

ment’s motion to dismiss treating the issue raised as

one of law. In.this case the affidavits and accompany-

ing material submitted in connection with the Govern-

ments Alternative Motion for Summary Judgment

shed light on the propriety of a dismissal because of

the discretionary function exception. Our review of

the record shows that we have the factual basis upon

which to make the determination relating to the ap-

plication of the discretionary function provision.

Since Bernitsky had a reasonable opportunity to pre-

sent opposing affidavits and other evidence, and failed

to show that there was any disputed issue of fact as

to a material issue, a grant of summary judgment

would have been appropriate. See note 3 supra.

Therefore, we see no reason to remand the case to

the district court for disposition, and for the sake of

judicial economy we will affirm the dismissal on the

basis of the discretionary function exception. See

Sprague v. Fitzpatrick, 546 F. 2d 560, 563 n. 4 (3d

Cir. 1976), cert. denied, 431 U. S. 937 (1977).

Petition for a Writ of Certiorari 31

“Accordingly, we will affirm the judgment of the

district court.” Bernitsky v. United States, No. 1453,

slip. op. at 16-17 (3d Cir. March 19, 1980).

The cotirt below clearly erred in granting Respondent's

Motion for Summary Judgment. Fed. R. Civ. P. 56(c)

specfically provides that:

“The motion [for summary judgment] shall be

served at least 10 days before the time fixed for the

hearing. The adverse party prior to the day of hear-

ing may serve opposing affidavits. The judgment

sought shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a

matter of law... .” (Emphasis added. )

The court below by its own admission considered only

the affidavits offered by Respondent,'' which were unop-

14. The Court below stated that:

“In support of its Motion to Dismiss or in the Alternative

for Summary Judgment, the Government presented affidavits

and deposition testimony from several coal mine inspectors

that they had repeatedly inspected the mine and determined

that the underground sanitary facility provided by Bernitsky

was not on the approved list. Despite the allegations in Ber-

nitsky’s complaint that Government agents negligently failed

to determine that the facility was approved and that they

failed to advise Bernitsky and others that the facility was ap-

proved, Bernitsky failed to present any factual evidence in its

Answer to the Government Motion controverting the Govern-

ment evidence that the facility was unapproved at the time the

Notice of Violation was issued.” Bernitsky v. United States,

slip op. at note 2.

32 Petition for a Writ of Certiorari

posed by Petitioners,” in granting Respondent’s Motion

for Summary Judgment. The court below chose to ignore

the pleadings filed by Petitioners and the deposition testi-

mony of Petitioners and federal coal mine inspectors em-

ployed by Respondent which at the very least established

that an issue of material fact existed in the present case—

whether the sanitary toilet facility utilized by Petitioners

in the active working section of their coal mine was in fact

approved.”*

For example, the sworn testimony of Petitioner Joseph

Bernitsky under interrogation by counsel for the United

States on September 2, 1976, at pages 29-30, was as

follows:

“Q. All right? Our records and the inspection

report indicate, and I'll indicate to you, that Mr.

15. Petitioners acknowledge that they did not file affidavits in

opposition to the affidavits filed by Respondent. The reason that

Petitioners did not oppose Respondent'’s affidavits, as was explained

to the court below in Petitioners’ Petition for Rehearing, was that

the affidavits offered by Respondent alleged that the sanitary toilet

facility was not on an approved list. Petitioners did not contend in

the courts below and do not contend here that the sanitary toilet

facility was on any approved list. Moreover, Petitioners alleged in

their pleadings, and those allegations are supported by deposition

testimony of record in the district court, which was ignored by the

court below, that although it was not on an approved list the toilet

facility was in fact accepted as an approved facility before the

withdrawal order dated February 13, 1974 was issued to Petitioners,

and was again in fact accepted as an approved facility after the

withdrawal order was terminated.

16. Petitioners contended in the courts below, and contend

here, that if the sanitary toilet facility was in fact approved, then

the issuance of a citation and order of withdrawal for failure to

have a sanitary toilet facility of an “approved type” at any time

after such approval constituted negligence which would give rise

to a cause of action against the federal government under the Tort

Claims Act. See pages 15-23, supra.

Petition for a Writ of Certiorari 33

Schoffstall was at your mine on July 11 of 1973 and

issued a notice of violation for failure to have an

approved toilet facility. Now, my question is: Do

you have any recollection of meeting Mr. Schoffstall

at your mine concerning this second notice?

“A. I can’t answer that for sure; as I said before,

there were so many inspections made. The only thing

enters my mind is that the toilet was approved when

we first got it; and that if he was referring to that as

being illegal, then I sort of ignored it, in a sense,

because I didn’t think he was right. But if they

accepted that—this is where it makes me feel I don’t

know for sure if I was there or not, or if I let that

issue go by. I don’t know; I don’t know for sure.

“Q. As I understand it, you don’t recall whether

or not you talked to Schoffstall; and your recollection

is that either you weren’t there and talked to him

when he was there; or that he was and that because

they had approved the facility before, that you didn’t

want anything to do with it and you just forgot about

it?

“A. Well, not—well, I don’t want it to sound so

rude. But I felt, myself, that it was an approved

toilet; maybe he doesn’t know what he’s talking

about... .” (Emphasis added. )

Petitioner Joseph Bernitsky also testified, at pages 33-34

of his deposition taken on September 2, 1976, as follows:

“Q. Do you remember when the mine was closed?

“A. I do remember when this mine was closed.

“Q. When Mr. Updegrave came out?

“A. Yes; very, very vividly.

“Q. Do you remember talking to your partners

about the toilet facility before that day? is my ques-

tion.

34 Petition for a Writ of Certiorari

“A. The conversation came up about the toilet,

yes. It would be normal to talk about business, you

know; these are some of the things. .

“Q. Let me ask you this: Was there ever any

discussion prior to the closure of the mine about get-

ting a facility that was approved?

“A. As I said before, I can’t say for sure; but I

think George made reference somewhere about this

toilet; and if he wrote to the company or not—some-

where in the back of my mind, I think he wrote to

the very same company we have to see if it was

approved.

“Q. Do you know whether or not you had any

discussions with your partners before the mine was

closed about buying another one that was approved,

that you knew was already approved?

“A. Well, we talked about it. We talked about

another toilet; but, at the time, it seems that they

accepted this toilet and they had it for two years,

and all of a sudden it was not approved. And this

is what I think sort of left a bitter taste in our mouths.

And we talked about it; and I don’t know if George

did or did not inquire as to another toilet. I don't

know.

“Q. Do you know whether or not there was ever

any decision made prior to closure of the mine that

your partnership would not purchase another facility?

“A. No. I don’t think we spoke negatively about

it that I know of, you know; but we always felt in the

back of our minds, we couldn't understand it. It was

approved at first; after a number of years, then it

wasn't approved. This is what sort of didn’t go too

well with us.” (Emphasis added. )

Upon further interrogation by counsel for the United States

during the course of the same deposition, Petitioner Joseph

Bernitsky testified, at pages 56-57, as follows:

Petition for a Writ of Certiorari 35

“Q. Following the notice that was issued by Mr.

Schoffstall for failure to have the approved facility,

do you know whether or not the mine initiated any

type of appeal of that notice?—to take it to a higher

authority?

“A. I don’t recall; unless—well, I think the

Bureau was called on that. I’m not sure. I dont

know if we talked to Mr. Laird about that. I don't

know for sure, but I know that there were some

inquiries made somewhere along the line to find out

about this.

“Q. Do you know whether or not, following the

closure order that was issued by Mr. Updegrave for

failure to have an approved sanitary facility, the mine

ever initiated an appeal, a formal appeal, to a higher

authority within the Department of Interior to con-

test the closure order?

“A. No, I truthfully felt that they would be back

very shortly and try to correct this measure somehow.

“Q. That who would come back, sir?

“A. That may be the Bureau would come back.

“Q. For what purpose?

“A. Talk this over and see—it was so sudden, we

couldn't believe it. They said the mine was closed;

it was closed. You want to see—well, we were in a

state of disgust anyway. I’m getting to a point now.

This became harassment as far as we're concerned.

We thought we'd wait and see what—of course, we

had other work to do. We were on a repair detail

that kept us busy until they made up their minds and

find out for sure why this toilet couldn't be ac-

cepted—which, by the way, was accepted later on;

they accepted that same toilet, but that was some time

later on. (Emphasis added. )

36 Petition for a Writ of Certiorari

‘she sworn testimony of Petitioner Joseph Bernitsky

under interrogation by counsel for the United States on

September 2, 1976, at pages 67-70 was as follows:

“Q. Yes. Do you remember Mr. Laird coming

out to the mine?

“A. I do remember him and a Mr. Johnson that

came to the garage.

“Q. Do you remember what Mr. Laird told you

at that time?

“A. I told you; I repeated that question before,

what he told me. Oh, did I?

“Q. No, I don’t think so.

“A. Didn't I? I’m sorry.

“Q. Relate for me the conversation you had with

Mr. Laird and Mr. Johnson that day at the garage.

“A. Well, he happened to get me while I was

on my way to the strip mine, which is in the opposite

direction of the mine.

“Q. Is this outside the mine property where you

met?

“A. Yes. And he says, ‘Joe, he says, ‘I'd like to

talk to you. He was very nice, I always thought he

was very nice. He said, ‘Joe, we have a—to the best

of my recollection—no; I'll try to picture it. He says,

‘We have to apologize. We want you to go back. We

made a mistake. And the exact words, the way he

put it, I know he said, ‘if you were to take this to

court,’ he says, ‘we'd lose. We admit we'd lose.’ He

said, ‘If you took it to court, you'd make an ass out of

yourself. Our lawyers would laugh at your lawyers

if you take it to court. We admit, so take the Porta

Potti, or whatever you called it, ‘and go back to

work; we terminate the closure order.

“Q. Do you know what proceeding he was re-

ferring to?

Petition for a Writ of Certiorari 37

“A. 1 don’t know; I don’t think it was anything

meaning it would go to court. He said, ‘Even if this

would go to court,” he says, ‘our lawyer would laugh

at your lawyers’ sort of to bring this to court, ‘when

we admit we did wrong.’ That's exactly the way he

put it: ‘We admit we did wrong. Go back with our

blessing.’

“I said, ‘Is this some kind of trick?’

“He said, ‘No, it isn’t.”

“I told George and Al. They sort of felt sort of

bitterness, that it was a trick. Why should the man

come along and say, ‘Go back to work, after all that

hullabaloo? How could they take that order... .

Perhaps they have the right to do that; but it didn’t

seem right to George and them at the time, I guess.

But this is the conversation I had with Mr. Laird.

He admitted that they were wrong in doing so—take

the same thing back, and we still have the same toilet

right now.” (Emphasis added. )

The sworn testimony of Petitioner Albert Bernitsky, given

under interrogation by counsel for the United States on

September 2, 1976, at pages 11-12 and 20-21, was as

follows:

“Q. Did you ever have any conversation with

Mr. Stella up to today about a toilet facility at the

mine?

“A. Well, I don’t know what inspector it was,

but when we got this toilet I asked the inspector,

‘Is that all right?’ And he looked at it and he said

it’s all right by him; and also another inspector, I can't

tell you his name because I don't know it, he said it’s

all right by him, too, as far as he is concerned.

38 Petition for a Writ of Certiorari

“Q. This would be the Stello toilet?

“A. I wouldn't say.

“Q. The Stello toilet?

“A. Limagine the toilet we have now.

o * 9

“Q. Did Mr. Updegrave on the day tie closed

the mine make the statement in your presence to the

effect that if you got a toilet, he wouldn't close you

down?—an approved toilet, he wouldn’t close you

down?

“A. No: I didn’t hear him say that, no. He says,

‘The mine is closed,’ he said, ‘with that toilet.’ That

toilet was good. I don't know how many inspections

they made and they all agreed that it was all right.

All at once, it wasn’t any good.” (Emphasis added. )

The sworn testimony of Petitioner Vincent Bernitsky, given

under iuterrogation by counsel for the United States on

September 2, 1976, at page 20, was as follows:

“Q. Did you ever tell any of the federal inspectors

before the mine was closed, or express your opinion

to them, that you had one toilet and you didn’t want

to get another one or weren't going to get another one?

“A. I don’t think so; I may have—I don’t know.

I often wondered why it was all right for the couple

years that we had it and then all of a sudden we have

to get a new one. I may have expressed that and

tried to find out. Maybe asked them why.

“Q. Did you ever get any explanation?

“A. No.” (Emphasis added. )

Lastly, the sworn testimony of Federal Coal Mine Inspector

Dean Updegrave, given on July 6, 1976 at pages 11-15—

which sworn testimony is uncontradicted by any evidence

of record in this case—was as follows:

Petition for a Writ of Certiorari 39

“Q. Do you know if the mine was subsequently

reopened?

“A. Reopened?

“Q. Yes.

“A. I did terminate this order.

“Q. At what date?

“A. I'll have to look. Do you have my notes?

I'd like to look at my notes there to refresh my

memory, if I may.

“Q. [have no objection.

“A. It was soon after we had appeared in court

here in Philadelphia that this order was terminated.

I don’t think I have the date in here—no, I don't

have the date in there, but it was terminated.

“Q. Can you tell me why the order was termi-

nated?

“A. The order was terminated through an under-

standing that I had with the attorneys for the Interior

Department.

* * +

“Q. Was your understanding to terminate the

order based upon any change in the facility, the

underground toilet facility?

“A. No, sir.

“Q. In other words—I don’t want to put words

into your mouth—the facility which is there now—

“A. Is still the same.

“Q. —is still the same facility?

“A. Right, yes.

“Q. Let me go back a second, I know you didn’t

make the inspection, but can you tell me why the

facility was not approved initially?

“Mr. Ruvoto [Counsel for the United States]:

If you know.

40

Petition for a Writ of Certiorari

“Mr. Pins.ty [Counsel for Plaintiffs/ Petitioners |:

If you know. If you don’t know, you don’t know.

“Mr. Ruvo.o: What did you mean by ‘approved’?

“Mr. Pinsty: Why the facility that was there

initially was not approved as—

“Mr. Ruvoto: Not on the approved list?

“Mr. Pinsty: Well, not approved by the in-

spector.

“Mr. Ruvo.o: On July 11, 1973.

“Mr. Pinsty: Yes. If you know.

“A. Why it was not approved by the inspector

on July 11?

“Q. Yes.

“A. Because it did not conform with the criteria.

“Q. When you agreed to terminate the order, did

the toilet comply with the criteria then?

“A. No, sir, it did not.

“Q. Can you explain to me a little bit more

about your agreement with the attorneys?

0 * *

“A. He gave me no reasons.

.“Q. But this understanding, this conversation

you had pertaining to the agreement was based upon

the knowledge of the fact that the underground

facility was identical to that which was there on July

21, 1973 when the notice was issued; isn’t that cor-

rect?

“Mr. Ruvoto: I object to the form of the ques-

tion.

Petition for a Writ of Certiorari 41

“Mr. Pinsty: Would you like me to repeat the

question?

“THE Witness: Yes, rephrase it, please, or repeat

it.

“Q. (Continuing) The agreement and conver-

sations which you had with your attorneys at that

time, that agreement and conversation was under-

taken with the knowledge that the facility which was

in the ground at that time was the same facility as

existed on July 11, 1973?

“Mr. Ruvo.o: Same objection.

“A. Yes, it was.

“Q. Is this facility on the approved list today?

“A. It is not.

In Poller v. Columbia Broadcasting System, 368 U. S.

464 (1962), this Court explained the circumstances under

which summary judgment is appropriate stating that:

“Summary /judgment should be entered only

when the pleaflings, depositions, affidavits, and ad-

missions filed in the case ‘show that [except as to the

amount of damages] there is no genuine issue as to

any material fact\and that the moving party is en-

titled to a judgmentsas a matter of law.’ Rule 56(c),

Fed. Rules Civ. Proc. This rule authorizes summary

judgment ‘only where the moving party is entitled to

judgment as a matter of law, where it is quite clear

what the truth is, . . . [and where] no genuine issue

remains for trial . . . [for] the purpose of the rule is

not to cut litigants off from their right of trial by jury

if they really have issues to try. Sartor v. Arkansas

Natural Gas Corp., 321 U. S. 620, 627 (1944).” 368

U. S. at 467 (Emphasis added. )

42 Petition for a Writ of Certiorari

The granting of Respondent’s Motion for Summary Judg-

ment by the court below radically deviated from the ac-

cepted law governing the granting of such motions. Fed.

R. Civ. P. 56(c); Poller v. Columbia Broadcasting System,

368 U. S. at 467. The court below neglected to consider

the entire record before the district court. Specifically, the

court below ignored lengthy deposition testimony of Peti-

tioners and Respondent that the sanitary toilet facility in

the active working section of Petitioners’ coal mine was in

fact approved by Respondent prior to the issuance of the

July 11, 1973 citation to Petitioners, and after the February

13, 1974 order of withdrawal was lifted. Therefore, the

conclusion reached by the court below—that no issues of

material fact existed in this case—was improper, was

reached as a result of a clear error in applying the law

governing motions for summary judgment and should be

reviewed by this Court.

CONCLUSION.

For the reasons set forth above, Petitioners respect-

fully pray that this Court issue its Writ of Certiorari

directed to the United States Court of Appeals for the

Third Circuit so as to bring before it for briefing, argu-

ment and decision the important questions of federal

statutory and procedural law presented by the instant

Petition.

Respectfully submitted,

THomaS B. RUTTER,

Counsel for Petitioners.

872 Public Ledger Building,

Independence Square,

Philadelphia, Pennsylvania. 19106

(215) 925-9200.

APPENDIX A.

ORDER OF APRIL 11, 1980.

United States Court of Appeals

For THE TuHrrRD CIRCUIT

No. 79-1453

Bernitsky, Joseph; et al.

vs.

UNITED STATES OF AMERICA, United States

Department of Justice, Washington, D. C.

Joseph Bernitsky, Albert Bernitsky,

Viricent Bernitsky and George Stenulis,

Appellants

(D. C. Civil No. 76-0841)

SUR PETITION FOR REHEARING

Present: Gippons, HiGGINBOTHAM and S.oviTeER, Circuit

Judges

The petition for rehearing filed by Appellants, Joseph

Bernitsky, Albert Bernitsky, Vincent Bernitsky and George

Stenulis, individually and trading as Bernitsky Brothers

Coal Company, Slope No. 2 in the above entitled case

(Al)

A2 Appendix A

having been submitted to the judges who participated in

the decision of this court and no judge who concurred in

the decision having asked for rehearing, the petition for

rehearing is denied.

By the Court,

Do.ores K. SLOVITER

Judge

Dated: April 11, 1980

Appendix B A3

APPENDIX B.

OPINION OF THE U., S. COURT OF APPEALS

FOR THE THIRD CIRCUIT.

UNITED STATES COURT OF APPEALS

For THE THIRD CIRCUIT

No, 79-1453

JOSEPH BERNITSKY; ALBERT BERNITSKY;

VINCENT BERNITSKY and GEORGE STENULIS,

Individually and trading as Bernitsky Brothers

Coal Company, Slope No. 2

v.

UNITED STATES OF AMERICA, United States

Department of Justice, Washington, D. C.

Joseph Bernitsky, Albert Bernitsky, Vincent Bernitsky,

and George Stenulis, Appellants

On APPEAL FROM THE UNITED STATES Districr Court

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

D. C. Civil No. 76-0841

Argued November 16, 1979

Before: Grppons, HIGGINBOTHAM and SLOVITER,

Circuit Judges

A4 Appendix B

(Opinion filed March 19, 1980)

Thomas B. Rutter, Esq. (Argued)

872 Public Ledger Building

Philadelphia, PA 19106

Attorneys for Appellants

Robert S. Forster, Jr., Esquire

Assistant United States Attorney

Raymond A. Nowak, Esq. (Argued )

Charles E. Mandolia, Esq.

Attorneys, Torts Branch Civil Division

Department of Justice

Washington, D. C. 20530

Attorneys for Appellee

[2]

OPINION OF THE COURT

SLoviTerR, Circuit Judge

The issue on appeal in this case is the scope of the

discretionary function exception of the Federal Tort

Claims Act.

On July 11, 1973 a Federal Mine Safety Inspector,

acting pursuant to the Federal Coal Mine Health & Safety

Act of 1969, 30 U. S. C. §801 et seg. (hereinafter

FCMHSA), inspected the mine owned and operated by

appellant, Bernitsky Brothers Coal Company (hereinafter

Bernitsky), located at New Philadelphia, Schuylkill

County. Among the items inspected was whether the

toilet facility complied with the updated list of “Approved

Underground and Surface Sanitary Facilities” promul-

gated by The Bureau of Mines which had been revised

Appendix B A5

April 1973 and distributed to the local mine inspectors on

June 28, 1973. The inspector found that the toilet facility

at the mine was not on the approved list and he served a

Notice of Violation on Bernitsky immediately following his

inspection. Approved toilet facilities were available in

the vicinity of the mine at a cost of $79.00 but Bernitsky

did not purchase a complying toilet nor did it utilize the

available administrative and judicial remedies in an at-

tempt to have the Notice of Violation vacated. Over the

next seven months, at Bernitsky’s request the date for

compliance with the Notice was extended three times by

mine inspectors. Finally, on February 13, 1974 the Min-

ing Enforcement and Safety Administration (hereinafter

MESA), issued a Withdrawal Order pursuant to Section

104(b), of the statute, 30 U. S. C. § 814(b) (1976), bar-

ring any access to the mine other than that required to

abate the violations. In April 1974 portions of the mine

collapsed. Bernitsky claims that as a result of the collapse

various mining tools and equipment were damaged and

it could not extract certain amounts of coal, causing dam-

age totaling

[3]

$2,591,000 which it seeks to recover from the federal

government through this action. One cannot resist com-

menting that for want of a nail, the kingdom was lost.

Bernitsky filed suit on March 19, 1976 pursuant to

the Federal Tort Claims Act, 28 U. S. C. §§ 1346(b), 2671

et seq. (1976). The complaint alleges that the Notice of

Violation and subsequent Order of Withdrawal barring

access to the mine were issued negligently and caused the

mine’s collapse by preventing Bernitsky’s employees from

performing the mining and maintenance operations which

were necessary to prevent the collapse. Following more

A6 Appendix B

than two years of discovery, the United States filed a

Motion to Dismiss or in the Alternative for Summary Judg-

ment on December 8, 1978 supported by affidavits and

deposition testimony. On January 11, 1979, the district

court ruled that the FCMHSA did not give rise to a private

right of action by a mine operator and that there was no

liability under the Federal Tort Claims Act because Penn-

sylvania would not impose liability under the circum-

stances of this case. Bernitsky v. United States, 463 F.

Supp. 1121 (E. D. Pa. 1979). Accordingly, the action

was dismissed.

On appeal, the appellant concedes that it has no pri-

vate right of action accruing under the FCMHSA. It

relies solely on its claim under the Federal Tort Claims

Act.

The operative provision of that statute subjects the

United States to liability:

for injury or loss of property, or personal injury or

death caused by the negligent or wrongful act or

omission of any employee of the Government while

acting within the scope of his office or 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.

[4]

28 U. S. C. § 1346(b) (1976). Because liability of the

United States is contingent on liability under the “law of

the place where the act or omission occurred”, in this case

Pennsylvania, Bernitsky focuses a considerable portion of

its argument on an attempt to establish that under the law

of the Commonwealth of Pennsylvania, the circumstances

set forth above would give rise to a cause of action for

Appendix B A7

negligence. We need not consider the validity of this

argument because we dispose of this case on other grounds.

In its Answer, the United States pleaded the affirma-

tive defense that the court lacked subject matter jurisdic-

tion because the acts complained of are specifically ex-

cluded from the Federal Tort Claims Act by the provision

exempting acts within the discretionary function of United

States employees. This was also one of the bases urged

by the United States in its Motion to Dismiss or in the

Alternative for Summary Judgment. Although the excep-

tion was not the basis for the district court’s dismissal of

the action, we deem it appropriate to consider its ap-

plicability as an initial matter since it involves the central

issue of the scope of the United States’ surrender of its

immunity to suit by passage of the Federal Tort Claims

Act. We can do so because it is well established that we

are free to affirm the judgment of the district court on

any basis which finds support in the record. Harold

- Friedman, Inc. v. Thorofare Markets, Inc., 587 F. 2d 127,

140 (3d Cir. 1978); Fairview Park Excavating Co. v. Al

Monzo Construction Co., 560 F. 2d 1122, 1123 n. 1 (3d

Cir. 1977); United States v. Pennsylvania, 533 F. 2d 107,

110 n. 7 (3d Cir. 1976). Because we consider affidavits

and accompanying material presented in connection with

the Government's Alternative Motion for Summary Judg-

ment which have not been controverted by opposing affi-

davits, and which demonstrate there is no genuine issue

as to any material fact, Fed. R. Civ. P. 56, we can review

the district court's dismissal under the

[5]

standard of the propriety of a grant of summary judgment.

See First State Bank of Hudson County v. United States,

599 F. 2d 558, 562 (3d Cir. 1979).

A8 Appendix B

The boundaries of the sovereign immunity waived

by the Federal Tort Claims Act are delineated by the

statutory provision excepting certain claims. 28 U. S. C.

§ 2680 (1976). The discretionary function exception

provides:

The provisions of this chapter and _ section

1346(b) of this title shall not apply to—

(a) Any claim based upon an act or omis-

sion of an employee of the Government, exer-

cising due care, in the execution of a statute or

regulation, whether or not such statute or regu-

lation be valid, or based upon the exercise or

performance or the failure to exercise or perform

a discretionarv function or duty on the part of a

federal agency or an employee of the Govern-

ment, whether or not the discretion involved be

abused.

Id. § 2680(a).

This encompasses two discrete claims: the first ex-

cepting acts or omissions of governmental employees in

carrying out statutes or regulations and the second ex-

cepting acts of discretion in the performance of govern-

mental functions or duty. It is generally the latter phrase

which is considered the discretionary function exemption.

There has been a considerable amount of difficulty,

recognized by both the courts and the commentators, in

applying the discretionary function exception.’ In the

1. See Dupree v. United States, 247 F. 2d 819, 825 (3d Cir.

1957); Jayson, Application of the Discretionary Function Excep-

tion, Symposium on the Federal Torts Claim Act, 24 Fed. B. J. 153

(1964); Reynolds, The Discretionary Function Exception of the

Federal Tort Claims Act, 57 Geo. L. J. 81, 82 (1968).

Appendix B A9

[6]

Supreme Court’s initial interpretation of the provision,

the Court stressed that the exception was designed to

apply to those governmental functions which entail a

policy judgment and decision. Dalehite v. United States,

346 U.S. 15, 36 (1953). “It is the discretion of the execu-

tive or the administrator to act according to one’s judg-

ment of the best course” which Congress has protected.

Id. at 34. Many of the later cases have focused on the

policy judgment aspect of the circumstances in déter-

mining whether the exception is applicable. See, e.g.,

Huntington Towers, Ltd. v. Franklin National Bank, 559

F. 2d 863, 870 (2d Cir. 1977), cert. denied, 434 U. S.

1012 (1978); First National Bank in Albuquerque v.

United States, 552 F. 2d 370, 374-75 (10th Cir.), cert.

denied, 434 U. S. 835 (1977); Griffin v. United States,

500 F. 2d 1059, 1066-67 (3d Cir. 1974). Others have

made the distinction between conduct at the planning

level, which is considered exempt, and conduct at the

operational level, which is not. See, e.g., Driscoll v.

United States, 525 F. 2d 136, 138 (9th Cir. 1975); Spill-

way Marina, Inc. v. United States, 445 F. 2d 876, 878

(10th Cir. 1971); United Air Lines v. Wiener, 335 F. 2d

379, 392-93 (9th Cir.), cert. dismissed, 379 U. S. 951

(1964); Swanson v. United States, 229 F. Supp. 217, 220

(N. D. Cal. 1964); Wildwood Mink Ranch v. United

States, 218 F. Supp. 67, 76-77 (D. Minn. 1963). Yet an-

other distinction which has been made, although now of

questionable authority, is that between the sovereign func-

tions of government, which were stated to be within the

exemption, and the proprietary functions, which were not.

See, e.g., National Mfg. Co. v. United States, 210 F. 2d

263, 277 (8th Cir.), cert. denied, 347 U. S. 967 (1954),

Al0 Appendix B

but see Indian Towing Co. v. United States, 350 U. S. 61,

64-65 (1955).

Although these distinctions may provide some guid-

ance in explaining the result of the cases, they do not offer

much assistance in the determination whether the

[7]

activity in question in a particular case falls on the side

of liability or immunity. Rather than engage in a seman-

tic attempt to decide in which category this case falls, we

believe it will be more productive to develop the factual

similarities among the vast array of judicial precedent on

this issue.

The affidavits and deposition testimony incorporated

therein filed by the Government in support of its Motion,

to which Bernitsky filed no opposing affidavits, have nar-

rowed Bernitsky’s claim to the allegation that the inspector

negligently issued the Withdrawal Order,’ with the conse-

quence being the collapse of the mine. Since the inspector

concededly had the statutory authority to issue the With-

drawal Order and accepting, as we must for this purpose,

the causation alleged, the issue thus clearly emerges: Does

2. In support of its Motion to Dismiss or in the Alternative for

Summary Judgment, the Government presented affidavits and dep-

osition testimony from several coal mine inspectors that they had

repeatedly inspected the mine and determined that the under-

ground sanitary facility provided by Bernitsky was not on the ap-

proved list. Despite the allegations in Bernitsky’s complaint that

Government agents negligently failed to determine that the facility

was approved and that they failed to advise Bernitsky and others

that the facility was approved, Bernitsky failed to present any

factual evidence in its Answer to the Government Motion contro-

verting the Government evidence that the facility was unapproved

at the time the Notice of Violation was issued.

Appendix B All

the issuance of that Order, however arbitrary or negligent,

constitute the exercise of a discretionary function?

A review of the case precedent suggests a number

of factual analogs. One line of cases holds that the issu-

ance or refusal to issue a Government license or permit

falls within the discretionary function exemption. See

Lawrence v. United States, 381 F. 2d 989, 990-91 (9th

Cir. 1967) (failure to issue permits to occupy portion of

trust patent Indian land); United States v. Morrell, 331

F. 2d 498, 502 (10th Cir.), cert. denied, 379 U. S. 879

[8]

(1964) (issuance of grazing permits even when officials

allegedly knew the stock would stray upon and damage

lands of plaintiffs); Chournos v. United States, 193 F. 2d

321, 323-24 (10th Cir. 1951), cert. denied, 343 U. S. 977

(1952) (denial of permit to graze on public lands); United

States v. Waylyn Corp., 130 F. Supp. 783, 787 (D. P. R.

1955), affd on other grounds, 231 F. 2d 544 (Ist Cir.),

cert. denied, 352 U. S. 827 (1956) (withholding occupancy

permits ); Smith v. United States, 101 F. Supp. 87, 88-89

(D. Colo. 1951), appeal dismissed, 196 F. 2d 222 (10th

Cir. 1952) (reduction of plaintiff's grazing privileges).

Another line of authority with some similarity to this

case is that holding the decision to prosecute or not to

prosecute falls within the discretionary function. Smith v.

United States, 375 F. 2d 243, 247 (5th Cir.), cert. denied,

389 U. S. 841 (1967); Brooks v. United States, 152 F. Supp.

535, 537 (S. D. N. Y. 1957). The same is true of a decision

when to institute and prosecute condemnation proceedings.

Goddard wv. District of Columbia Redevelopment Land

Agency, 287 F. 2d 343, 345 (D. C. Cir.), cert. denied, 366

U. S. 910 (1961). The decision to abruptly close garbage

Al2 Appendix B

dumps at Yellowstone National Park in connection with

the management of grizzly bears within the park was held

to entail the type of judgment exempted by the discre-

tionary function provision, notwithstanding the claim that

the decision resulted in the death of a camper. Martin v.

United States, 546 F. 2d 1355, 1360 (9th Cir. 1976), cert.

denied, 432 U. S. 906 (1977). Issuance of a cease and

desist order by the F. D. I. C. if it believes the bank is

engaging in unsound practices is a determination left to

the discretion of the agency. Davis v. Federal Deposit

Insurance Corporation, 369 F. Supp. 277, 280 (D. Colo.

1974). In a case with facts somewhat parallel to the one

under consideration, the court held a coal mine owner

could not bring a Federal Tort Claims Act case claiming

damages as a result of an administrative decision not to

operate a coal

[9]

mine seized by the Government under executive authority

in furtherance of the war effort. Old King Coal Co. v.

United States, 88 F. Supp. 124, 125 (S. D. Iowa 1949).

Bernitsky seeks to distinguish the discretionary func-

tion situation by bringing itself within the line of authority

which appears to authorize a Federal Tort Claims Act

claim for negligent inspection by government agents who

fail to uncover dangerous conditions ultimately causing

harm to third persons. Blessing v. United States, 447 F.

Supp. 1160 (E. D. Pa. 1978); Toppi v. United States, 327

F. Supp. 1277 (E. D. Pa. 1971). It also relies on cases

under Pennsylvania law permitting a similar cause of

action against private parties for negligent inspection.

Knight v. Otis Elevator Co., 596 F. 2d 84 (3d Cir. 1979);

Evans v. Otis Elevator Co., 403 Pa. 13, 168 A. 2d 573

(1961).

Appendix B Al3

Those cases are inapplicable in this situation. Even

though Bernitsky has sought to cast its claim in terms of

negligence, a review of the material filed in connection

with the Motion to Dismiss, or in the Alternative for Sum-

mary Judgment, establishes that plaintiff claims neither

that there was any negligent inspection nor that there was

negligence premised upon the failure to inspect.* On the

contrary, the inspection accurately disclosed that there was

a nonconforming facility. Once that was evident, the

inspector issued the notice of violation, within his statutory

authority, 30 U. S. C. §814(b) (1976), and, when the

violation remained uncorrected

[10]

after seven months and three extensions of time, the order

was issued closing the mine. In essence, Bernitsky com-

plains not of any negligent action but of regulatory en-

forcement action, i.e. that the mine was closed, which

Bernitsky argues was not reasonable under the circum-

stances. It is precisely that kind of judgment which the

discretionary function exception encompasses.

In Griffin v. United States, 500 F. 2d 1059 (3d Cir.

1974), this court had occasion to consider the purpose of

the discretionary function exception. There we empha-

3. The only factual issues which Bernitsky raises in its un-

verified Answer to the Motion to Dismiss or Motion for Summary

Judgment are the failure of the MESA inspector to inform it of the

proper method of obtaining approval of the toilet facility, the

failure to inform it as to which facilities were approved, and the

fact that the February 13, 1974 Withdrawal Order was later abated.

Even were these facts properly presented in opposing affidavits,

they fail to alter the nature of the administrative decision which

allegedly caused the damage, i.e. the Withdrawal Order.

Al4 Appendix B

sized it was aimed at protecting decisions involving “policy

judgments as to the public interest.” Id. at 1064. We

stated that “[t]o determine the applicability of the discre-

tionary function exception . . . we must analyze not merely

whether judgment was exercised but also whether the

nature of the judgment called for policy considerations.”

Id. In an earlier case, the panel had succinctly expressed

the distinction by noting that “ordering an army maneuver

is a discretionary function, but the negligent operation of

an army vehicle during such a maneuver is not.” Ward v.

United States, 471 F. 2d 667, 670 (3d Cir. 1973).

Therefore, our inquiry must be directed to the nature

of the judgment which must be made in the decision

whether to issue a Withdrawal Order closing a noncom-

plying coal mine. The Coal Mine Health and Safety Act

of 1969, 30 U. S. C. § 801, et seq. (1976), was enacted as

part of the continuing federal regulation of mine health

and safety in coal. The Secretary of the Interior is re-

quired to designate mandatory health and safety standards

following consultation and public hearing. 30 U. S. C.

§ 811. Among the standards which have been promul-

gated is that requiring each operator of a coal mine to

maintain an approved sanitary toilet. The relevant regu-

lation provides:

(a) Except as provided in § 75.1712-7, each oper-

ator of an underground coal mine shall, on and

[11]

after December 30, 1970, provide and maintain one

approved sanitary toilet, together with an adequate

supply of toilet tissue, in a dry location under pro-

tected roof, within 500 feet of each working place in

Appendix B A15

the mine where miners are regularly employed dur-

ing the mining cycle. A single approved sanitary

toilet may serve two or more working places in the

same mine, if it is located within 500 feet of each

such working place.

(b) Only sanitary toilets approved by the Health

Division, Coal Mine Health and Safety, Bureau of

Mines shall meet the requirements of this section.

(c) Applications for approval of sanitary toilets

shall be submitted to:

Health Division, Coal Mine Health and Safety,

Bureau of Mines, U. S. Department of the Interior,

Washington, D. C. 20240.

30 C. F. R. § 75.1712-6 (1973).

The statute authorizes the Secretary to investigate

and inspect mines subject to his jurisdiction for the pur-

pose of determining whether the mine operator is com-

plying with the mandatory health and safety standards

which have been promulgated. 30 U.S. C. § 813(a)(4)

(1976). These investigations are conducted by MESA

inspectors. The MESA inspector who conducts the in-

vestigations and determines that a mine operator has failed

to comply with the standards can issue either a withdrawal

and debarment order closing the mine, or, if deemed ap-

propriate, a notice of violation for lesser violations.

If an inspector determines, on inspection of a coal

mine, that an “imminent danger exists”, an order shall

be issued withdrawing all but certain specified persons

from the area until the inspector “determines that such im-

minent danger no longer exists.” Id. §814(a). On the

other hand, when the inspector determines that the vio-

Al6 Appendix B

[12]

lation has not created an “imminent danger”, “he shall

issue a notice to the operator or his agent fixing a reason-

able time for the abatement of the violation,” which can

be extended by the inspector, until s/he makes a deter-

mination “that the period of time should not be further

extended.” Id. § 814(b).* The judgmental nature of the

4. The statute provides:

(a) If, upon any inspection of a coal mine, an authorized

representative of the Secretary finds that an imminent danger

exists, such representative shall determine the area throughout

which such danger exists, and thereupon shall issue forthwith

an order requiring the operator of the mine or his agent to

cause immediately all persons, except those referred to in

subsection (d) of this section, to be withdrawn from, and to

be prohibited from entering, such area until an authorized

representative of the Secretary determines that such imminent

danger no longer exists.

(b) Except as provided in subsection (i) of this section,

if, upon any inspection of a coal mine, an authorized repre-

sentative of the Secretary finds that there has been a violation

of any mandatory health or safety standard but the violation

has not created an imminent danger, he shall issue a notice to

the operator or his agent fixing a reasonable time for the abate-

ment of the violation. If, upon the expiration of the period of

time as originally fixed or subsequently extended, an author-

ized representative of the Secretary finds that the violation has

not been totally abated, and if he also finds that the period of

time should not be further extended, he shall find the extent

of the area affected by the violation and shall promptly issue

an order requiring the operator of such mine or his agent to

cause immediately all persons, except those referred to in sub-

section (d) of this section, to be withdrawn from, and to be

prohibited from entering, such area until an authorized repre-

sentative of the Secretary determines that the violation has

been abated.

30 U.S. C. § 814(a) and (b) (1976).

Appendix B Al7

inspector's determination whether to extend further the

period of time for abatement of the violation is evidenced

by two decisions of the Interior Board of Mine Operations

Appeals. In Old Ben Coal Company, 6 IBMA 294, 306

(1976), the Board enunciated its test concerning the

[13]

validity of a section 104(b) [30, U. S. C. § 814(b)] order

when it held that the inspector's determination to issue a

section 104(b) order must be based on “the facts con-

fronting the inspector at the time he issued the subject

withdrawal order regarding whether an additional abate-

ment period should be allowed.” (emphasis in original ).

The Board framed the issue as “whether the inspector

abused his enforcement discretion by issuing a withdrawal

order instead of further extending the time for abate-

ment’, id., and held that he did. Subsequently, in United

States Steel Corporation, 7 IBMA 109, 114 (1976), the

Board affirmed the Administrative Law Judge’s conclusion

“as a matter of law, that the inspector's authority under

section 104(b) of the Act in determining whether the

time allowed for abatement should be extended or an

order of withdrawal issued carries the implication that it

will be exercised reasonably, not arbitrarily or capri-

ciously.” (emphasis added).

The record in this case discloses that the Mining

Enforcement and Safety Administration sent representa-

tives to meetings of inspectors at various district offices

to call the inspectors’ attention to the factors they should

consider in exercising their discretion whether to issue

notices and grant extensions. A speech, prepared by the

Chief of Safety of MESA, and delivered on his behalf

by Frank Henderson, a Coal Mine Specialist, at a district

A18 Appendix B

meeting attended by Inspector Updegrave, the inspector

who issued the Withdrawal Order in this case, stressed

the need for determination of what is a “reasonable time”

for the abatement period, and whether “due diligence has

been exercised in an attempt to gain compliance” before

extensions are granted. It is apparent from the foregoing

that the decisions regarding issuance of a notice of vio-

lation, extensions of time, and orders of withdrawal must

be made by the individual inspectors on the basis of their

experience and judgment, and therefore fall within the

scope of the discretionary function exception. They are

“matters involving balancing of

[14]

policy considerations in advancing the public interest.”

Griffin v. United States, 500 F. 2d 1059, 1064 (3d Cir.

1974). Decision making as to investigation and enforce-

ment, particularly when there are different types of en-

forcement action available, are discretionary judgments.

In re Air Crash Disaster Near Silver Plume,Qolorado, 445

F. Supp. 384, 401-04 (D. Kan. 1977); see First National

Bank in Albuquerque v. United States, 552 F. 2d 370, 375-

76 (10th Cir.), cert. denied, 434 U. S. 835 (1977). Thus,

in making the determination of the course to follow, the

MESA inspector must use his or her judgment as to the

manner in which the statutory authority can best be effec-

tuated, an act which cannot subject the government to

tort liability.

In Weinstein v. United States, 244 F. 2d 68 (3d Cir. ),

cert. denied, 355 U. S. 868 (1957), plaintiff's suit against

the government charged that the enforcement by revenue

agents of regulations regarding prohibited hours of opera-

tion of an alcohol denaturing plant and bonded warehouse

Appendix B Al9

led to an explosion and fire causing death and injury. This

court held that a charge based on the locking of the build-

ing which was in accordance with regulations promulgat-

ing under statutory authority must be dismissed because

it fell within the discretionary function exception of the

Tort Claims Act. The recent decision in Griffin v. United

States, supra, on which appellant relies is not applicable to

the type of decision making involved here. In Griffin, the

government had undertaken to test and thereafter approved

for release live virus polio vaccine that failed to meet the

scientific standards set forth in the regulations. 500 F. 2d

at 1063-69. There is no analogy between the negligent

failure to comply with regulations at issue there and the

regulatory enforcement activity at issue here.

Additionally, we believe that it is significant that the

Coal Mine Health and Safety Act itself provides the

mechanism whereby notices of violation and withdrawal

[15]

orders may be reviewed and that Bernitsky never availed

itself of the opportunity to challenge the various notices

of violation or the withdrawal order through the adminis-

trative route available. Under section 105(a)(1) of the

statute, 30 U. S.C. § 815(a)(1) (1976), as it existed before

amendment in 1977," Bernitsky had the right to apply to

5. Administrative changes were effected by the Amendment to

the statute contained in the Federal Mine Safety and Health

Amendments Act of 1977, Pub. L. 95-164, Nov. 9, 1977, 91 Stat.

1290, 30 U. S. C. §§ 801 et seq. (Supp. I 1977). The Act modified

the FCMHSA to make it the single mine safety and health act,

created an independent agency, the Federal Mine Safety and

Health Review Commission, 30 U. S. C. §823 (Supp. I 1977),

which took over the functions of the Interior Board of Mine

Operations Appeals, and transferred most of the other duties of

A20 Appendix B

the Secretary of the Interior or his delegate for review of

the notice of violation and the order entered against it

within thirty days of receipt of the order. Under regula-

tions in effect in 1974, the Secretary’s authority pertaining

to application for review of the notices of violation and

withdrawal orders was delegated to the Board of Mine

Operations Appeals. 43 C. F. R. §4.500(a)(1) (1973).

Thereafter, the Secretary or his delegate would have been

required to conduct an investigation, including a public

hearing if requested, and issue a written decision, incor-

porating therein an order vacating, affirming or terminating

the order. 30 U.S.C. § 815(b) (1976). The order would

then have been subject to review in the Court of Appeals.

30 U. S. C. §816(a) (1976). The Withdrawal Order in

this case could have been issued only after a prior Notice

of Violation. Had Bernitsky availed itself of the oppor-

tunity of challenging the Notice of Vio-

[16]

lation, which it had ample time to do, it might have been

able to avoid the sequence of events which followed.

The administrative review procedure is the safeguard

provided by Congress against arbitrary action or abuse of

discretion by administrators in carrying out their respon-

sibilities under federal statutes. The appropriate action by

Bernitsky would have been an appeal using the applicable

administrative procedure. It is instructive to compare, in

5. (Cont'’d.)

the Secretary of the Interior to the Secretary of Labor. The mine

operators continue to have the right to seek review of notices and

orders within thirty days of receipt of notification, 30 U. S. C.

§ 815(a) (Supp. I 1977) and they have the right to a hearing be-

fore the Commission, 30 U. S. C. § 815(d) (Supp. I 1977).

Appendix B A21

this regard, the procedure used in Golden Holiday Tours

v. CAB, 531 F. 2d 624 (D. C. Cir. 1976), where an inclu-

sive tour operator petitioned for review of the rejection by

the CAB of an amendment to its prospectus which would

have made available additional seats on certain transat-

lantic flights. In its review, the court noted that there was

no request for damages, stating “It seems clear that dam-

ages would be barred under the discretionary activities

exception to the Federal Torts Claims Act.” Id. at 626,

n. 6.

We need not decide whether in every case the fact

that the decision which is the basis of the claim could have

been reviewed administratively indicates the decision is

the type that is encompassed within the discretionary func-

tion exception nor whether the availability of administra-

tive review is incompatible with tort liability under the

Federal Tort Claims Act. Nor do we hold that the excep-

tion precludes review in every situation involving regu-

latory agencies or decisions. We merely hold that the

specific enforcement activities in this case fall within the

ambit of 28 U.S. C. § 2680(a).

The procedural posture of this case merits some com-

ment. The district court granted the Government's motion

to dismiss treating the issue raised as one of law. In this

case the affidavits and accompanying material submitted

in connection with the Government’s Alternative Motion

for Summary Judgment shed light on the propriety of a

dismissal because of the discretionary function exception.

Our review of the record shows that

[17]

we have the factual basis upon which to make the deter-

mination relating to the application of the discretionary

A22 Appendix B

function provision. Since Bernitsky had a reasonable op-

portunity to present opposing affidavits and other evi-

dence, and failed to show that there was any disp ated

issue of fact as to a material issue, a grant of summary

judgment would have been appropriate. See note 3

supra. Therefore, we see no reason to remand the case

to the district court for disposition, and for the sake of

judicial economy we will affirm the dismissal on the basis

of the discretionary function exception. See Sprague v.

Fitzpatrick, 546 F. 2d 560, 563 n. 4 (3d Cir. 1976), cert.

denied, 431 U. S. 937 (1977).

Accordingly, we will affirm the judgment of the dis-

trict court.

Appendix C A23

APPENDIX C.

OPINION OF THE U. S. DISTRICT COURT FOR THE

EASTERN DISTRICT OF PENNSYLVANIA.

Joseph BERNITSKY, Albert Bernitsky,

Vincent Bernitsky and George Stenulis

V.

UNITED STATES of America.

Civ. A. No. 76-841.

United States District Court,

E. D. Pennsylvania.

Jan. 11, 1979.

Thomas Rutter, Mitchell S. Pinsly, Philadelphia, Pa.,

for plaintiffs.

Bruce A. Menk and James P. Klapps, U. S. Dept. of

Justice, Civil Division, Washington, D. C., for defendant.

MEMORANDUM AND ORDER

TrouTMAN, District Judge.

Plaintiffs are the owners and operators of a small

independent coal mine located in Schuylkill County, Penn-

sylvania. They seek damages under the Federal Tort

Claims Act (FTCA), alleging that defendant, through its

duly authorized agents, representatives, servants and em-

ployees, did close plaintiffs’ mine on February 13, 1974,

and that in or about April of that year, as a proximate

cause of said closure, plaintiffs’ mine collapsed, destroying

mining tools and equipment and rendering impossible the

extraction of 112,000 tons of coal.

The Government moves to dismiss and/or for sum-

mary judgment, alleging, inter alia, that this action cannot

A24 Appendix C

be maintained because there exists no actionable tort duty

upon which the liability of the United States can be

predicated.

Regarding this contention, it is well settled that the

FTCA does not itself give rise to a cause of action. It is

merely a limited waiver of immunity with reference to

ascertainable tort claims.

The statute, 28 U. S. C. § 1346(b), reads, in pertinent

part:

“e ® * (T)he District Courts * * ° shall have

exclusive jurisdiction of civil actions on claims against

the United States, for money damages ° * * for injury

or loss of property, or personal injury or death caused

by the negligent or wrongful act or omission of any

employee of the Government while acting within the

scope of his office or employment, under circum-

stances 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.”

See also Dalehite v. United States, 346 U. S. 15, 73 S. Ct.

956, 97 L. Ed. 1427 (1952). The FTCA is a limited

waiver of sovereign immtnity, making the Federal Gov-

ernment liable to the same extent as a private party for

certain torts of federal employees acting within the scope

of their employment. United States v. Orleans, 425 U. S.

807, 96 S. Ct. 1971, 48 L. Ed. 2d 390 (1976). The act

only confers a procedural remedy, and does not create a

substantive cause of action. Dalehite v. United States,

supra, Certain Underwriters at Lloyd’s v. United States,

511 F. 2d 159 (5th Cir. 1975).

Therefore, the Government can only be liable to

plaintiffs in this case if a private individual would be liable

Appendix C A25

in Pennsylvania under these circumstances. Thus, there

must have been a breach of a duty, which duty must have

been prescribed either by statute or by the common law.

Although the Government employees in question

were acting pursuant to the Coal Mine Health and Safety

Act of 1969, 30 U. S. C. § 801 et seq., there is no indica-

tion that said Act was intended to create a private cause

of action against the United States. The purpose of the

Act is to protect the health and safety of miners, and to

that end the Act provides for standards for safety and

health, and enforcement procedures to ensure that such

standards are met. Mine operators have remedies, includ-

ing both administrative and judicial review, if they feel

certain conduct by enforcement officials was improper at

any point, but there is simply nothing in the Act indicating

that a cause of action has been created on behalf of mine

operators against the United States as a result of alleged

misconduct by officials in conducting inspections or other-

wise enforcing the provisions of the Act. Accordingly, we

hold that the Coal Mine and Safety Act of 1969 does not

create an independent cause of action in this case.

Additionally, there is nothing in the law of Pennsy]l-

vania indicating that a cause of action exists on behalf of

coal mine operators for improper closure of coal mines

under the provisions of the Coal Mine Health and Safety

Act of 1969. See Devlin Lumber and Supply Corp. v.

United States, 488 F. 2d 88 (4th Cir. 1973), Davis v.

United States, 395 F. Supp. 793 (D. Neb. 1975), affirmed

per curiam, 536 F. 2d 758 (8th Cir. 1976). In Blessing

v. United States, 447 F. Supp. 1160 (E. D. Pa. 1978),

Judge Becker held that under certain circumstances the

United States could be liable to injured employees for an

alleged improper inspection by Occupational Safety and

Health Act inspectors, but grounded such considerations

A26 Appendix C

upon a finding that Pennsylvania recognizes the “good

Samaritan” rule in which one who undertakes to render

service for another is liable for negligent rendering of said

services if the negligence causes injury. There is no

equivalent Pennsylvania rule on which liability of the

United States to coal mine operators can be grounded for

damages allegedly resulting from improper closure or other

enforcement activity under the Coal Mine Health and

Safety Act of 1969.

Similarly, the common law does not recognize a cause

of action under these circumstances. Federal case law

has repeatedly held that federal inspection does not create

a tort duty. See Kirk v. United States, 161 F. Supp. 722

(D. Idaho 1958), affirmed, 270 F. 2d 110 (9th Cir. 1959);

Fisher v. United States, 441 F. 2d 1288, 1292 (3d Cir.

1971), and cases cited therein; Chaneyfield v. City of New

York, et al., 525 F. 2d 1333 (2d Cir. 1975); Zabala

Clemente v. United States, 567 F. 2d 1140 (1st Cir. 1977);

Social Security Administration Baltimore Federal Credit

Union v. United States, 138 F. Supp. 639 (D. Md. 1956);

Davis v. FDIC, 369 F. Supp. 277 (D. Colo. 1974); In re

Franklin National Bank Securities Litigation, 445 F. Supp.

723 (E. D. N. Y. 1978).

Futhermore, there is no Pennsylvania case law sug-

gesting liability under these circumstances, and one case

actually held that a governmental authority (a munici-

pality) acting in its general capacity for the protection of

the general public cannot be held liable for a mere failure

to furnish adequate police protection to a particular indi-

vidual to whom no special duty was owed. See Romisher

v. SEPTA, 65 Pa. D. & C. 2d 483 (1974).

In conclusion, this Cout can find no basis for tort

liability to be imposed against the United States for al-

Appendix C A27

leged improper closure pursuant to the Coal Mine Health

and Safety Act of 1969. Accordingly, defendant’s motion

to dismiss will be granted. Therefore, we need not reach

other contentions advanced by the Government in support

of its motion for summary judgment.