Case 5:12-cv-02437 Document 1 Filed 06/28/12 Page 1 of 19 PageID #: 1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT

OF WEST VIRGINIA AT BECKLEY

JASON 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 RICHMOND

Petitioners,

v.

Civil Action No. ___________ 5:12-2437 Judge: __________________

ALPHA NATURAL RESOURCES, INC, ALPHA APPALACHIA HOLDINGS, INC., FORMERLY KNOWN 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 DISASTER TO 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 DEPARTMENT OF JUSTICE, ALPHA NATURAL RESOURCES, INC., AND ALPHA APPALACHIA HOLDINGS 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,

Case 5:12-cv-02437 Document 1 Filed 06/28/12 Page 2 of 19 PageID #: 2 Morris Hulgan, Charles Gray, Adam Farthing, Jason Dancy, Derek Williams and Larry Richmond (“Petitioners”) state and claim as follows:

VENUE 1. This Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(1), because the parties are from different states, and federal question jurisdiction pursuant to 28 U.S.C. § 1331, as the claims brought are founded on federal common law and implicate a unique federal interest for they relate to a Non-Prosecution Agreement entered into by the United States of America by and through the United States Attorney's Office for the Southern District of West Virginia. 2. Petitioners’ claims are derived from a Non-Prosecution Agreement between the United States of America, through 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 Energy Company (“Massey”) which was executed on or about December 6, 2011, and which 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 Big Branch Mine explosion, they are entitled to the same amount of criminal restitution that has been paid to other injured miners who were injured through the criminal acts of Alpha and Massey and/or their agents, servants or employees. 4. 5. That Alpha is a Virginia corporation. That Massey is a Delaware corporation.

Case 5:12-cv-02437 Document 1 Filed 06/28/12 Page 3 of 19 PageID #: 3 6. That the United States Attorney’s Office for the Southern District of West Virginia is 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, in naming the United States Attorney’s Office as a party, it is the Petitioners’ contention that the United States Attorney has done and is doing an exemplary job prosecuting those responsible for the injuries and deaths that occurred at Upper Big Branch on April 5, 2010, but that the goal of the NonProsecution Agreement is not being realized due to the failure of Alpha and Massey to be forthright and truthful by failing to provide full and complete information. 8. That the Petitioners all live in the Southern District of West Virginia and are all victims who were seriously injured in the explosion that occurred at the Upper Big Branch 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 time limits under said Act are suspended during "any period of delay during which prosecution is deferred by the attorney for the Government pursuant to written agreement 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 certain crimes subsection, and states in pertinent part that “(1) Notwithstanding any other provision of law, when sentencing a defendant convicted of an offense described 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 4 of 19 PageID #: 4 that the defendant make restitution to the victim of the offense or, if the victim is deceased, to the victim’s estate.” 11. That 18 USC § 3663 C (2) provides that “In the case of a plea agreement that does not result in a conviction for an offense described in paragraph (1), this section shall apply only if the plea specifically states that an offense listed under such paragraph gave rise to the plea agreement.” 12. That 18 USC § 3663 C (1) (B) states in pertinent part that “restitution shall be paid in which an identifiable victim or victims has suffered a physical injury or pecuniary loss”. 13. That in entering into the Non-Prosecution Agreement, Alpha and Massey agreed not to contest any MSHA Citation or Order. That said Citation or Orders listed several safety violations that caused death to the several miners and the injuries to the miners that are the petitioners herein. 14. That Alpha and Massey have specifically paid criminal restitution to miners who were in the same mantrips as these Petitioners and who suffered similar or less serious injuries than these Petitioners. 15. That these Petitioners are entitled to the same amount of criminal restitution as their fellow miners who were injured at Upper Big Branch.

BACKGROUND OF PETITIONERS 16. That the Petitioners, Jason Stanley, Kenny Woodrum, Kevin Brown, Tommy Estep, Dustin Ross, David Shears, Dakota Davis, Tommy Davis, Ryan Powers, Patrick Hilbert, Morris Hulgan, Adam Farthing, Jason Dancy, Derek Williams and Larry Richmond are all victims who were inside the Upper Big Branch Mine,

Case 5:12-cv-02437 Document 1 Filed 06/28/12 Page 5 of 19 PageID #: 5 located in Raleigh County, WV, on April 5, 2010, when, due to the acts of Alpha and Massey, the mine exploded. 17. That when the mine exploded a sonic blast carrying shock waves, debris, projectiles and poisonous gases, among other things, shot down the mine shafts and out various portals. 18. That the effects of the explosion in the immediate area and the sonic blast that carried down the shaft caused death to twenty-nine (29) miners. 19. That on April 5, 2010, many of the Petitioners were on or about mantrips in the shaft of the mine preparing to go to the longwall or other areas of the mine to begin the next shift or to move out of the mine as their respective shift was about to end. 20. That production ran continuously hot at the UBB mine and some of the Petitioners were on crews that would replace the production crews in the mine. 21. That the production crew would wait until the relief crew showed up in the mine so that production would not stop. 22. That at approximately 3:05 p.m. a massive explosion or explosions occurred in the UBB mine. 23. That the explosion or explosions were of such force and magnitude that they set off a wave of overpressure from the blast. 24. That overpressure from a blast can cause serious damage far from the initial blast as the energy spreads away from the blast area. 25. 26. That as it relates to the UBB mine the blast increased pressures to over 1000 psi. That the overpressure in the UBB mine caused by the explosion had to escape through the mine shaft and out the Ellis Entry.

Case 5:12-cv-02437 Document 1 Filed 06/28/12 Page 6 of 19 PageID #: 6 27. That because the blast was trapped within the UBB mine, the overpressure bounced off of the walls of mine causing additional dangerous forces. 28. That as the mantrips began to pull away from their charging station the miners on said mantrips where suddenly hit by an over pressurized blast (known as overpressure) from the massive explosion that occurred in the mine. 29. That the blast was so violent that it moved the heavy mantrips and dislodged many loose items such as hard hats and lunch pails. Further, the blast disconnected all lighting. 30. Along with the blast, the Petitioners were hit with debris and toxic gases and chemicals. 31. That the blast event experienced by the Petitioners has caused significant injury known as “Blast Injury.” 32. That “Blast Injury” falls into five categories: Quaternary and Collateral. 33. Injuries that result from crushing overpressure are truly unique to blast forces. These primary Blast Injuries occur because the body is not a solid, incompressible mass; it has air-containing organs that will crush under the external load. 34. Crushing allows the outer shell of the body in those regions to move rapidly inward, thus distorting the air-containing tissue and producing local, large stresses, including but not limited to injuries to the lung, gastrointestinal (GI) tract, and upper respiratory tract (URT). 35. Rapid distortion of the air-containing organs can transmit stress to neighboring solid organs as well. Primary, Secondary, Tertiary,

Case 5:12-cv-02437 Document 1 Filed 06/28/12 Page 7 of 19 PageID #: 7

36.

Contusions to the heart arise in part from the strong stress waves that develop in the lung.

37.

Large deformations of the body can also lead to stresses in solid organs that result in damage to the liver and spleen.

38.

Rapid volumetric changes outside the normal physiological range can disrupt systemic processes.

39.

Creation of air emboli by forcing gas across the air–blood barrier of the lung and creation of large pressure transients in the vascular system may be responsible for brain injury and cell death.

40.

That as a result of the Blast Injury described herein, some or all of the Petitioners have suffered permanent injuries to their brain and hearing.

41.

That as a result of the Blast Injury described herein, the Petitioners have suffered severe and intentionally inflicted emotional distress including Post Traumatic Stress Disorder.

42.

That the injuries to the Petitioners are so severe that, based upon the results of psychological and neurological exams, they are either unable to work or should not be working in a coal mining environment.

43. 44. 45.

That Alpha and Massey are aware and know that miners can suffer Blast Injuries. That approximately forty (40) miners on mantrips were injured. That Alpha and Massey have paid what they consider to be criminal restitution in an arbitrary manner to approximately nine (9) of the miners who were on the mantrips, some of which suffered less significant injuries than the Petitioners herein.

Case 5:12-cv-02437 Document 1 Filed 06/28/12 Page 8 of 19 PageID #: 8 46. That Alpha and Massey have paid what they consider to be criminal restitution to at least one miner who was outside of the mine at the time of the blast. Alpha and Massey are aware that these Petitioners, who were on the same mantrip as those who received restitution for their injuries, have not been compensated. 47. That the effects of the explosion struck what is known as the “Blake” mantrip causing death and injury to the miners on that mantrip. 48. That the same blast continued through the mine shaft striking the mantrip of Kenny Woodrum, Kevin Brown, Tommy Estep, Dustin Ross, David Shears, and Dakota Davis. The blast also struck the mantrip of Patrick Hilbert, Ryan Powers, Morris Hulgan, Jason Dancy, Adam Farthing and Derek Williams. It struck Jason Stanley and Tommy Davis who were walking out of the mine, and Larry Richmond who was walking into the mine. The blast caused severe injury to all of the miners named herein. 49. That as a direct result of the blast hitting the mantrip of Kenny Woodrum, he has suffered a Traumatic Brain Injury and multiple physiological injuries. 50. That as a direct result of the blast hitting the mantrip of Kevin Brown, he has suffered a Traumatic Brain Injury and multiple physiological injuries. 51. That as a direct result of the blast hitting the mantrip of Tommy Estep, he has suffered a Traumatic Brain Injury and multiple physiological injuries. 52. That as a direct result of the blast hitting the mantrip of Dustin Ross, it is believed that he has suffered a Traumatic Brain Injury and multiple physiological injuries. 53. That as a direct result of the blast hitting the mantrip of David Shears, it is believed that he has suffered physical injuries and multiple physiological injuries. 54. That as a direct result of the blast hitting the mantrip of Dakota Davis, he has suffered physical injury and multiple physiological injuries. As the mantrip of

Case 5:12-cv-02437 Document 1 Filed 06/28/12 Page 9 of 19 PageID #: 9 Dakota Davis was struck, he knew that his father and two cousins were still working at the longwall deeper in the mine and were likely in danger of severe injury or death. 55. That as a direct result of the blast hitting eighteen year-old Jason Stanley, coupled with the fact that he was required to unload the bodies of dead miners, he has suffered extreme Post Traumatic Stress Disorder and has received a disability rating of 30% as well as physical injury. 56. That as a direct result of the blast hitting Tommy Davis, he suffered physical injury. In addition, as Tommy Davis was being struck by the blast, he knew that his son, brother and nephew were still working at the longwall deeper in the mine and likely in danger of severe injury or death. 57. That as a direct result of the blast and flying debris including a bit bucket hitting Patrick Hilbert, he suffered a Traumatic Brain Injury. In the moments immediately following the explosion, Mr. Hilbert went back into the mine to assist with rescue efforts and to remove dead bodies. As a trained emergency medical technician, Mr. Hilbert carried out at least nine deceased miners, including his best friend. Mr. Hilbert suffers from Post-Traumatic Stress Disorder as a result. 58. That as a direct result of the blast and debris hitting Ryan Powers, he suffered a Traumatic Brain Injury. Mr. Powers suffers from Post-Traumatic Stress Disorder as a result of the explosion. 59. That as a direct result of the blast hitting Morris Hulgan, he suffered a Traumatic Brain Injury. Mr. Hulgan suffers from Post-Traumatic Stress Disorder as a result of the explosion. 60. That as a direct result of the blast and debris hitting Adam Farthing, he suffered a Traumatic Brain Injury. Mr. Farthing helped removed deceased miners from a

Case 5:12-cv-02437 Document 1 Filed 06/28/12 Page 10 of 19 PageID #: 10 mantrip and helped assist a survivor to an ambulance. As a direct result of the blast, Mr. Farthing suffers from Post-Traumatic Stress Disorder. 61. That as a direct result of the blast. Larry Richmond suffers from Post-Traumatic Stress Disorder. He assisted Mr. Hilbert in removing dead bodies from a mantrip. Mr. Richmond suffers from bronchitis from explosive dust inhalation and rheumatoid arthritis from the extreme stress of the event. 62. That as a direct result of the explosion. Derek Williams suffers from PostTraumatic Stress Disorder. Mr. Williams helped administer CPR to two miners who failed to survive and he also removed three bodies. 63. That as a direct result of the explosion, Jason Dancy suffers from Post-Traumatic Stress Disorder. Mr. Dancy was on a mantrip several hundred feet underground when the explosion occurred. Once out of the mine, Mr. Dancy returned to render aid and remove bodies from the mantrips, including the bodies of several of his close friends. 64. That as a direct result of the explosion, Charles Gray suffers from Post-Traumatic Stress Disorder. Mr. Gray was entering the mouth of the mine when the explosion occurred. When miners started running to escape the mine disaster, Mr. Gray was forced into a “waiting room” and not permitted to leave the premises. Mr. Gray was inside this room for three hours following the explosion. 65. That all or some of the live victims named herein received serious physical and mental injury, that would include without limitation, Post Traumatic Stress Disorder, Traumatic Brain Injuries, and other physical and emotional injuries.

Case 5:12-cv-02437 Document 1 Filed 06/28/12 Page 11 of 19 PageID #: 11

HISTORY OF CRIMINAL RESTITUTION IN THE UPPER BIG BRANCH EXPLOSION 66. That prior to December of 2011, the Respondents “settled” eleven wrongful death cases--all of which were listed on Appendix C of the Non-Prosecution Agreement. 67. That in settling said eleven wrongful death cases, the Administrators of the Estates were required to sign releases which resolved those claims. 68. That in settling those eleven wrongful death cases, the Administrator was required to attend a hearing where Circuit Court approval was obtained. 69. That at no time were the Estate Administrators informed that any of the monies paid to the eleven wrongful death cases was for “criminal” restitution. 70. That at no time were any of the Estate Administrators informed that some of the monies paid to the eleven wrongful death cases would be characterized as “criminal” restitution.

THE NON-PROSECUTION AGREEMENT 71. That sometime prior to December 2011, the Respondents herein began to negotiate a Non-Prosecution Agreement. 72. That Alpha and Massey misled the Department of Justice for the United States of America when they failed to disclose approximately forty (40) miners who were severely injured, so as to include them within the terms of the Non-Prosecution Agreement entered into with the United States Attorney for Southern District of West Virginia.

Case 5:12-cv-02437 Document 1 Filed 06/28/12 Page 12 of 19 PageID #: 12 73. That Alpha and Massey desired to extricate themselves from criminal acts and the financial responsibility for said acts. 74. That as a result of the explosion that occurred at the Upper Big Branch Mine, twenty-nine (29) miners were killed and approximately thirty-five to forty (35-40) miners were severely injured. 75. That, unbeknownst to these Petitioners, a Non-Prosecution Agreement was entered into between Alpha and Massey and the United States Attorney’s Office for the Southern District of West Virginia (the “Office”) and the United States Department of Justice (“DOJ”) in December 2011. 76. That as part of said Non-Prosecution Agreement, Alpha and Massey agreed to pay as restitution to each of the injured victims and the families of the fallen miners of the UBB explosion at least one million, five hundred thousand dollars ($1,500,000.00). 77. That as part of said Non-Prosecution Agreement, Alpha and Massey has agreed that they will not contest any Citation or Order entered by MSHA. 78. That Alpha and Massey falsely informed the United States Attorney’s Office that there were “only” two (2) injured victims or individuals affected by the UBB explosion. 79. That Alpha and Massey took the position that, because Sixteen Million, Five Hundred Thousand dollars ($16,500,000.00) was paid, or expected to be paid, as part of the settlements with the families of eleven of the twenty-nine (29) fallen miners in those actions included in Appendix C, said settlement payments of civil claims should be characterized as criminal restitution. 80. That nowhere in the settlements of those actions listed in Appendix C w ere the words “criminal restitution” used, nor were the families and/or Estate

Case 5:12-cv-02437 Document 1 Filed 06/28/12 Page 13 of 19 PageID #: 13 Administrators informed that said settlement payments were considered as criminal restitution. 81. Alpha and Massey appear to take the position that if they pay monies to a fallen miner that said payment includes any amount owed for criminal restitution. 82. That as it related to the two “named” injured victims, Alpha and Massey did agree to pay five hundred thousand dollars ($500,000.00) up front as criminal restitution with at least another one million dollars ($1,000,000.00) to be paid at the time of any resolution of the injured miners’ civil claims. 83. That at the time that Alpha and Massey entered into the Non-Prosecution Agreement on December 6, 2011, it had a mediation set for January 6th, 7th and 8th with all of the remaining Estate Administrators which had not yet settled their claims, and also with several of the injured miners whose identities had not been disclosed to the United States Attorney. 84. That in October of 2011 Alpha and Massey moved the state court for a stay of the state court proceedings in order to “attempt” to resolve the claims of “all” of the deceased and injured miners. 85. That at the time of the motion for a stay was filed, Alpha and Massey were aware of the fact that they would be entering into a Non-Prosecution Agreement. 86. That as a result of the representations made by Alpha and Massey they were granted a stay of all state court proceedings, which has in turn prevented any of these Petitioners from obtaining any written discovery or depositions from Alpha and Massey or their agents, servants or employees. 87. That Alpha and Massey signed the Non-Prosecution Agreement on December 6, 2011, with full knowledge that mediation was scheduled to occur in the very near future on January 6, 7 and 8, 2012, in order to attempt to resolve cases of those

Case 5:12-cv-02437 Document 1 Filed 06/28/12 Page 14 of 19 PageID #: 14 either named in the Non-Prosecution Agreement and/or those who were part of a “group” that were named in the Non-Prosecution Agreement. 88. That upon information and belief, Alpha and Massey “settled” at mediation those claims by the Estates of those named in the Non-Prosecution Agreement, in order to eliminate the need for payment of criminal restitution. 89. That, upon information and belief, Alpha and Massey agreed to pay settlements to all injured miners named in the Non-Prosecutorial Agreement. 90. That, in addition to the individuals named in the Non-Prosecution Agreement, Alpha and Massey agreed to pay monies, including any and all amounts owed for criminal restitution, to approximately five to ten (5-10) of the injured miners who were involved in the Upper Big Branch explosion. 91. That in agreeing to resolve the claims of the five to ten (5-10) injured miners, Alpha and Massey arbitrarily selected one or two injured miners from each mantrip while ignoring the claims of the remaining injured miners. 92. That, in effect, Alpha and Massey have now paid monies characterized as criminal restitution to twenty five percent (25%) of the injured miners, while refusing to make any payments of any nature, whether characterized as civil or criminal, to the remaining seventy-five percent (75%) of the injured miners. 93. That the miners who have received payments, which include amounts paid as criminal restitution, have made it known to these Petitioners (without disclosing the amounts) that they have received full and final civil and criminal restitution for their injuries. 94. That Alpha and Massey, while maintaining a stay of any proceedings in state court for over six months, have refused to enter into any good faith negotiations with these Petitioners.

Case 5:12-cv-02437 Document 1 Filed 06/28/12 Page 15 of 19 PageID #: 15 95. That Alpha and Massey now take the position that they are contesting all MSHA Citations and Orders in violation of the Non-Prosecutorial Agreement and therefore should not pay any additional criminal restitution that may be due and owning. 96. That it is the goal of Alpha and Massey to pay criminal restitution to only one of every four injured miners and to maintain a stay in the state court proceedings, to cause the uncompensated injured miners additional emotional distress and anxiety and to “starve them out” so that they will eventually agree to take less in criminal restitution than that paid to fellow miners. 97. That Alpha and Massey have taken this tactic and mislead the United States Attorney’s Office while escaping criminal prosecution and full criminal responsibility. 98. That upon information and belief, Petitioners were not made a part of the NonProsecution Agreement despite their injuries. The United States Attorney’s Office for the Southern District of West Virginia (the “Office”) and the United States Department of Justice (“DOJ”) were misled and/or defrauded by Alpha and Massey in that Petitioners’ names and the nature of their injuries were not provided to the Office, nor the DOJ as part of said Non-Prosecution Agreement. 99. That Alpha and Massey committed this misrepresentation and/or fraud in order to avoid paying criminal restitution to all of the injured miners. 100. That it is clear from the Non-Prosecution Agreement, Alpha and Massey intended to use, and have in fact used, monies from settlements with the individuals named in the Non-Prosecution Agreement as “restitution” money. 101. That restitution is the law of gains-based recovery.

Case 5:12-cv-02437 Document 1 Filed 06/28/12 Page 16 of 19 PageID #: 16 102. That court-ordered restitution requires the defendant to give up its gains to the claimant and/or victims. 103. 104. That the law of compensation is the law of loss-based recovery. That court ordered compensation requires the defendant to compensate the claimant for his loss. 105. That Alpha and Massey are not required to resolve the suits of the victims listed herein. 106. That as a result of the injuries and damages suffered by the Petitioners herein, they are entitled to criminal restitution if Alpha and Massey are granted the benefit of a Non-Prosecution Agreement. 107. That Alpha and Massey know that some or all of the victims listed herein are totally disabled and without financial support and/or have been forced to return to the mines to support their families, which has caused each of these victims additional and severe emotional distress. The failure of Alpha and Massey to attend to their specific needs has, at a minimum, created a danger for these victims and their co-workers. 108. That although Alpha and Massey are fully aware that some or all of the victims listed herein are totally disabled and without financial support, and/or have been forced to return to the mines to support their families which has caused each of these victims additional emotional distress, and at a minimum has created a danger for these victims and their co-workers. These victims have been advised that their respective claims have no value and/or will be made no offer to resolve their claims as Alpha and Massey are not legally responsible. 109. That Alpha and Massey have agreed to pay damages for criminal restitution for some miners that were injured in the explosion at Upper Big Branch while

Case 5:12-cv-02437 Document 1 Filed 06/28/12 Page 17 of 19 PageID #: 17 refusing to pay criminal restitution for miners who were on the same mantrip as those who have been provided criminal restitution. 110. That as part of the Non-Prosecution Agreement, it was agreed that if, in the twoyear period commencing on the date of the execution of the Non-Prosecution Agreement, the Government determines that Alpha or Massey has: (a) given false or misleading testimony or information in connection with this Agreement, the disclosures that led to this Agreement, or the performance of this Agreement; or (b) otherwise materially violated any provision of this Agreement, Massey shall thereafter be subject to prosecution for any violation of which the Government has knowledge, including perjury and obstruction of justice. Any such prosecution that is not time-barred by the applicable statute of limitations on the date of the execution of this Agreement may be commenced against Massey. In addition, Massey agrees to toll, and to exclude from any calculation of time, the running of the statute of limitations for any conduct that is the subject of this Agreement for a two-year period commencing on the date of the execution of this Agreement. By this Agreement, Alpha and Massey expressly intend to and hereby do waive any right to make a claim with respect to any such prosecution premised upon the statute of limitations, as well as any other claim with respect to such prosecution premised on pre-indictment delay. 111. That pursuant to the terms of the Non-Prosecution Agreement, Alpha and Massey are required to make known to the United States Attorney the names of all the victims of the Upper Big Branch Explosion so that full criminal restitution can be paid.

Case 5:12-cv-02437 Document 1 Filed 06/28/12 Page 18 of 19 PageID #: 18 112. Further, as a company under criminal investigation, Alpha and Massey should not be permitted to use the Non-Prosecution Agreement as leverage against the remaining victims of the Upper Big Branch Mine explosion.

WHEREFORE, the Petitioners, as injured victims of the Upper Big Branch Mine explosion, seek the following relief: a. That they be made a part of the Non-Prosecution Agreement and receive the same criminal restitution paid, under the terms of said Agreement, to other injured victims of the Upper Big Branch Mine explosion or in the alternative that the Agreement be set aside by the Court. That this Court require the respondents to reveal any and all payments made to injured miners at Upper Big Branch, along with the damages submitted by said injured miners, so that appropriate criminal restitution can be determined. That Alpha and Massey be required to comply with their agreement not to contest any Order or Citation of MSHA. Any other relief that the Court believes is just and equitable.

b.

c.

d.

Case 5:12-cv-02437 Document 1 Filed 06/28/12 Page 19 of 19 PageID #: 19 JASON 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 RICHMOND By Counsel

/s/ J. Michael Ranson

_______________________________________ J. Michael Ranson, Esquire (WVSB #3017) Cynthia M. Ranson, Esquire (WVSB #4983) George B. Morrone III, Esquire (WVSB #4980) RANSON LAW OFFICES, PLLC Post Office Box 3589 Charleston, West Virginia 25336-3589 JMR@Ransonlaw.com CMR@Ransonlaw.com GBM@Ransonlaw.com G. Patrick Jacobs (WVSB #1867) JACOBS LAW OFFICE 7020 MacCorkle Avenue, SE Charleston, WV 25304 pjacobs@bjblaw.com Mark F. Underwood (WVSB #7023) J. Patrick L. Stephens (WVSB #10262) UNDERWOOD LAW OFFICES, INC. 923 Third Avenue Huntington, WV 25701 markunderwood@underwoodlawoffice.com patrickstephens@underwoodlawoffice.com andMichelle A. Parfitt Joseph A. Musso Peter Anderson ASHCRAFT & GEREL, LLP 4900 Seminary Rd., Suite 650 Alexandria, VA 22311 mparfitt@ashcraftlaw.com jmusso@ashcraftlaw.com panderson@ashcraftlaw.com Counsel for Petitioners

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