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Complaint

Complaint

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Published by Taylor Kuykendall

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Published by: Taylor Kuykendall on Jul 12, 2012
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12/30/2012

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IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF WEST VIRGINIAAT BECKLEYJASON STANLEY, KENNY WOODRUM,KEVIN BROWN, TOMMY ESTEP, DUSTIN ROSS,DAVID SHEARS, DAKOTA DAVIS, TOMMY DAVIS,RYAN POWERS, PATRICK HILBERT, MORRIS HULGAN,CHARLES GRAY, ADAM FARTHING, JASON DANCY,DEREK WILLIAMS, and LARRY RICHMONDPetitioners,v. Civil Action No.
 ___________ 
Judge:
__________________ 
ALPHA NATURAL RESOURCES, INC, ALPHAAPPALACHIA HOLDINGS, INC., FORMERLYKNOWN AS MASSEY ENERGY COMPANY,
UNITED STATES ATTORNEY’S OFFICE
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA,and THE UNITED STATES DEPARTMENT OF JUSTICE,Respondents.PETITION OF VICTIMS OF THE UPPER BIG BRANCH MINE DISASTERTO AMEND OR SET ASIDE THE NON-PROSECUTION AGREEMENT ENTERED
INTO BETWEEN UNITED STATES ATTORNEY’S OFFICE FOR THE
SOUTHERN DISTRICT OF WEST VIRGINIA, THE UNITED STATES DEPARTMENTOF JUSTICE, ALPHA NATURAL RESOURCES, INC., AND ALPHA APPALACHIAHOLDINGS INC., FORMERLY KNOWN AS MASSEY ENERGY COMPANY
The Petitioners, Jason Stanley, Kenny Woodrum, Kevin Brown, Tommy Estep,Dustin Ross, David Shears, Dakota Davis, Tommy Davis, Ryan Powers, Patrick Hilbert,
5:12-2437
Case 5:12-cv-02437 Document 1 Filed 06/28/12 Page 1 of 19 PageID #: 1
 
Morris Hulgan, Charles Gray, Adam Farthing, Jason Dancy, Derek Williams and LarryRichmond
(“Petitioners”)
state and claim as follows:
VENUE
1. This Court has diversity jurisdiction pursuant to 28 U.S.C.
§
1332(a)(1), becausethe parties are from different states, and federal question jurisdiction pursuant to28 U.S.C.
§
1331, as the claims brought are founded on federal common law andimplicate a unique federal interest for they relate to a Non-Prosecution Agreement entered into by the United States of America by and through theUnited States Attorney's Office for the Southern District of West Virginia.2. Petitioners
claims are derived from a Non-Prosecution Agreement between theUnited States of America, thr 
ough the United States Attorney’s Office for the
Southern District of West Virginia,
and Alpha Natural Resources, Inc. (“Alpha”),
and Alpha Appalachia Holdings, Inc., formerly known as Massey EnergyCompany (
“Massey”)
which was executed on or about December 6, 2011, andwhich is referred to as the Non-Prosecution Agreement. (
See, Exhibit A
).3. That it is the Petitioners
contention that, as miners injured in the Upper BigBranch Mine explosion, they are entitled to the same amount of criminalrestitution that has been paid to other injured miners who were injured throughthe criminal acts of Alpha and Massey and/or their agents, servants or employees.4. That Alpha is a Virginia corporation.5. That Massey is a Delaware corporation.
Case 5:12-cv-02437 Document 1 Filed 06/28/12 Page 2 of 19 PageID #: 2
 
 6. That the United States A
ttorney’s
Office for the Southern District of West Virginiais only made a part of this Petition as a necessary party in order to have the prior Non-Prosecution Agreement set aside and/or amended.7. That, i
n naming the United States Attorney’s Office
as a party, it is thePetitioners
contention that the United States Attorney has done and is doing anexemplary job prosecuting those responsible for the injuries and deaths thatoccurred at Upper Big Branch on April 5, 2010, but that the goal of the Non-Prosecution Agreement is not being realized due to the failure of Alpha andMassey to be forthright and truthful by failing to provide full and completeinformation.8. That the Petitioners all live in the Southern District of West Virginia and are allvictims who were seriously injured in the explosion that occurred at the Upper BigBranch Mine on April 5, 2010.9. The authority to enter into Non-Prosecution Agreement is found in the
Speedy Trial Act of 1974, 18 U.S.C. § 3 161(h)(2)
, and provides that the timelimits under said Act are suspended during "any period of delay during whichprosecution is deferred by the attorney for the Government pursuant to writtenagreement with the defendant, with the approval of the court, for the purpose of allowing the defendant to demonstrate his good conduct."10. That
18 USC § 3663A
provides for mandatory restitution to victims of certaincrimes subsection,
and states in pertinent part that “
(1) Notwithstanding anyother provision of law, when sentencing a defendant convicted of an offensedescribed in subsection (c), the court shall order, in addition to, or in the case of a misdemeanor, in addition to or in lieu of, any other penalty authorized by law,
Case 5:12-cv-02437 Document 1 Filed 06/28/12 Page 3 of 19 PageID #: 3

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