Secretary of Labor v. Warrior Coal, LLC

Plain-English summary

After an inspector found hazardous roof and rib conditions at Warrior Coal's Cardinal Mine, MSHA opened a special investigation and requested the names, shifts, and contact information of all mine employees. Warrior refused to provide contact information without each employee's permission, leading to a section 103(h) citation and a section 104(b) failure-to-abate order. The Commission held that section 103(h) authorizes reasonable information demands beyond records operators are otherwise required to maintain, and that this request was relevant, specific, limited to current employees, and minimally burdensome. It also held that obtaining contact information did not compel miners to participate because each miner remained free to decline an interview. The Commission upheld the section 104(b) order even though no physical mine area was affected, affirmed the citation and order, and required Warrior to pay the assessed penalty and provide the information within 30 days. Commissioner Althen concurred separately, and Commissioner Young dissented.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 813(h), 814(b), and 820(c)
• Outcome: The citation, failure-to-abate order, assessed civil penalty, and information-production requirement were affirmed.
• Key point: MSHA may require a mine operator to provide employee contact information reasonably needed for a safety investigation, while each employee remains free to decline an interview.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

1331 PENNSYLVANIA
AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 
20004‑1710

SECRETARY OF LABOR,                            :        

MINE SAFETY AND HEALTH                
:                                

ADMINISTRATION (MSHA)                   
:         Docket Nos.    KENT 2011-1259-R

:                                 KENT 2011-1260-R

v.                                              
:                                 KENT 2012-705

:            

:                                                        

WARRIOR COAL, LLC                                
:

BEFORE:  Jordan, Chairman;
Young, Cohen, Nakamura, and Althen, Commissioners

DECISION

BY:  Jordan, Chairman; Cohen,
and Nakamura, Commissioners

These
proceedings, which arise under the Federal Mine Safety and Health Act of 1977,

30 U.S.C. § 801 et seq.
(2012) (“Mine Act” or “Act”), involve a citation and an order issued by the
Secretary of Labor’s Mine Safety and Health Administration (“MSHA”) to Warrior
Coal, LLC  (“Warrior”) following its failure to comply with a request for
information made by MSHA investigators.  The investigation was initiated after
an inspector observed miners working in close contact to multiple hazardous
roof and rib conditions.  MSHA’s request for information about the position,
shifts worked, and contact information for each mine employee was made pursuant
to section 103(h) of the Mine Act.[1] 

Warrior
contested the citation and the order before the Commission.  After considering

motions for summary decision,
a Commission Administrative Law Judge affirmed both the citation and the order,
assessed a penalty, and ordered that Warrior provide the requested information. 
35 FMSHRC 2968, 2976 (Sept. 2013) (ALJ). 

Warrior
petitioned the Commission for review of the Judge’s order.  We granted review,
and for the reasons that follow, we affirm the order of the Judge.

I.

Factual and Procedural Background

On
May 10, 2011, an MSHA inspector visited the underground Cardinal Mine in Kentucky
owned by Warrior.  During an inspection of the mine’s No. 2 unit, he observed
multiple hazardous roof and rib conditions in a place where miners were actively
working.  The inspector immediately issued an order to withdraw the miners pursuant
to section 107(a) of the Mine Act.[2] 
In addition, the inspector issued Warrior a citation and an order pursuant to
section 104(d), 30 U.S.C. § 814(d).  The citation alleged a violation of 30
C.F.R. § 75.202(a)[3]
for a failure to protect miners from the hazards related to roof and rib falls. 
The order alleged that the hazardous conditions were not listed in the
pre-shift examination book, in violation of the safety standard at 30 C.F.R. §
75.360(a)(1).[4] 

Thereafter,
MSHA began a special investigation into the hazardous roof and rib conditions
pursuant to section 110(c) of the Act, which addresses liability for corporate
directors, officers, or agents.[5] 
The investigators suspected that the hazards may have existed for multiple
shifts and sought to interview Warrior’s employees.  On June 21, 2011, the MSHA
District Manager sent Warrior a letter stating:

MSHA is
conducting a preliminary investigation of a possible willful/knowing
violation.  The Federal Mine Safety and Health Administration (MSHA) is
requesting the names, addresses, positions, shift worked and telephone numbers
of the employees at the Cardinal Mine.

S. Ex. G; W. Ex. 1.

In response,
Warrior sent the District Manager a letter which raised concerns that the
demand for information was “overly broad, unduly burdensome, an unwarranted
invasion of confidential and proprietary information of Warrior, and an unwarranted
invasion of the privacy of Warrior’s employees . . . .”  S. Ex. H; W. Ex. 2.  Warrior
also represented that it would cooperate with MSHA provided that MSHA first
obtained the permission of the employees involved.  Id. 

An
exchange of several letters followed; in each of the letters, Warrior stated that
it disagreed with the scope of the request, and, in turn, the District Manager
demanded that Warrior provide his investigators with the list.  Warrior
continuously represented that it would not provide employee contact information
without first receiving prior approval from the individual employees involved. 

On July 14, 2011,
MSHA issued Citation No. 8503376 to Warrior, alleging that Warrior failed to
provide requested information during an investigation in violation of section
103 of the Act.[6] 
After receipt of the citation, Warrior continued to refuse to supply the
contact information.  Accordingly, MSHA issued an order to Warrior pursuant to
section 104(b) of the Mine Act for its failure to abate the violation.[7]

Warrior
filed notices of contest with the Commission, and the proceedings were assigned
to an Administrative Law Judge.  The Judge scheduled the case for a hearing.  Thereafter,
the parties filed cross motions for
summary decision and responses pursuant to Commission Procedural Rule 67, 29
C.F.R § 2700.67.   

The
Judge granted the Secretary’s motion for summary decision, denied Warrior’s
motion, and ordered that Warrior provide the requested information to the
Secretary.  35 FMSHRC at 2973-76.  The Judge concluded that MSHA’s specific
request to Warrior was “reasonable and for a legitimate government purpose.”  Id.
at 2974.  Accordingly, he affirmed the citation and the order and assessed a
civil penalty of $555.  Id. at 2976.

On
review before the Commission, Warrior asserts that section 103 of the Act does
not grant the Secretary the authority to compel an operator to produce the
contact information of its employees to MSHA investigators.  Warrior also maintains
that the Judge’s ruling conflicts with an MSHA policy document that states that
miner participation in interviews is “voluntary.”  Finally, Warrior contends
that the Judge erred in affirming the section 104(b) order because the
violation of section 103(h) did not affect a physical location at the mine.  

II.

Disposition

A.   
Section 103(h) of the Mine
Act authorizes the Secretary to make reasonable requests for information from a
mine operator as part of an investigation.

As
noted above, section 103(h) of the Mine Act states that “[i]n addition to such
records as are specifically required by this Act, every operator of a coal or
other mine shall . . . provide such information, as the Secretary . . . may reasonably
require from time to time to enable him to perform his functions under this
Act.”  30 U.S.C. § 813(h) (emphasis added). 

The Commission
had occasion to consider the reasonableness of the Secretary’s request for
records under section 103(h) in Big Ridge, Inc., 34 FMSHRC 1003 (May
2012), aff’d, 715 F.3d 631 (7th Cir. 2013), a case which involved
citations issued during an audit of accident, injury, and illness reports.  In Big
Ridge we made clear that the Secretary has broad authority to request information
from mine operators.  As part of the audit, the Secretary requested access to
medical reports and payroll information, and issued citations alleging
violations of 30 C.F.R.    § 50.41 to the mine operators who refused to provide
the requested information.[8] 
On review, the Commission concluded that the Secretary’s requests were within
the broad scope of authority provided by section 103(h) of the Mine Act.  It
stated that section 103(h) provides “clear instructions that ‘information’ that
is not specifically required to be maintained by the Act shall,
nonetheless, be provided to the Secretary to enable her to perform her
functions, as long as the request is reasonable.”  Id. at 1012-13
(emphasis added and omitted). 

In
affirming the Commission’s decision, the Seventh Circuit emphasized that
section 103 “unambiguously requires mines to provide MSHA with records, reports
and information beyond what mines are otherwise required to maintain.”  715
F.3d at 641.  It further
stated that the text of section 103(h) “permits MSHA to make information
demands for a wide range of purposes – any reasonable requirement that would
help MSHA fulfill the purposes of the Mine Safety Act.”  Id. 

Warrior
incorrectly asserts that the court’s ruling in Big Ridge was premised on
its finding that the records at issue there were “relevant and necessary” for
MSHA to verify whether operators complied with Part 50 reporting requirements. 
W. Br. at 5.  Although the posture of the case in Big Ridge concerned
MSHA’s records request pursuant to Part 50, the court did not restrict its
holding to the “relevant and necessary” language of that standard.  It emphasized
that:

[The text of section 103(h)] permits MSHA to make
information demands for a wide range of purposes – any reasonable requirement
that would help MSHA fulfill the purposes of the Mine Safety Act.

715 F.3d at 641.  The court then
stated that “[s]ection 50.41 and the document demands here are well within
those bounds.”  Id. at 642.  It held that MSHA may reasonably require
operators to turn over records, even records they are not required to maintain,
when that information would enable MSHA to perform any of its functions under
the Act.  Id. at 641.  In other words, MSHA’s statutory authority is not
limited to “relevant and necessary” information. [9]

B.    
The Secretary’s request was
reasonable. 

In
determining the reasonableness of the Secretary’s document request, we will
consider, as the Big Ridge court did, whether the request is
“sufficiently limited in scope, relevant in purpose, and specific in directive
so that compliance will not be unreasonably burdensome.”  715 F.3d at 646
(quotation omitted); see also id. at 642, 646-48. 

Applying
that framework here, we conclude that the request was clearly reasonable. 
First, the request was relevant to MSHA’s purpose, which was to investigate if
any agent of the operator “knowingly authorized, ordered, or carried out” a
violation of a mandatory safety standard.  30 U.S.C. § 820(c).  The
investigation concerned serious failings with regard to roof and rib control
requirements.  MSHA suspected that the roof and rib hazards had existed for
multiple shifts.  Failures in these areas have a potential for the most serious
safety consequences, and the employees of the operator are the only potential
witnesses who may have relevant information.

While
the scope of the request was broad, we conclude that the broad scope was
justified by the circumstances of the investigation.  In connection with an
investigation into a potential systemic compliance failure, MSHA obviously must
have access to a broad number of potential employee witnesses, and must have
the ability to follow the investigation where it leads without unnecessary encumbrance. 
By having the names of all employees, MSHA can pursue the investigation without
the need to have further conversations with the operator, thereby maintaining
the important aspect of confidentiality during the progress of the
investigation.  MSHA could have attempted to frame the request more narrowly by
specifying types of job duties at the mine.  However, such an effort might have
inadvertently omitted the identities of persons not directly working on the
section who nonetheless would have relevant information. The Secretary
correctly observes that employees might have information by dint of their
duties in office administration or relationships with other employees rather
than by virtue of their particular duties at the operation. 

We
also conclude that the request was sufficiently limited in both time and
manner.  MSHA requested only the names of the employees who were employed at
the mine at the time of the request.  Furthermore, the manner is limited to
obtaining a list of employees, with their shifts and contact information.  It
does not include searching through Warrior’s offices for additional documents.

In the Big Ridge
decision, the Seventh Circuit recognized that while the Mine Act does not
empower MSHA to serve administrative subpoenas during an investigation, the
power to request information pursuant to section 103(h) “amounts to an administrative
subpoena in substance.”  715 F.3d at 646.[10]  Our determination here that the
Secretary’s request is reasonable is fully consistent with the broad authority
the federal courts have accorded agencies’ enforcement of administrative
subpoenas.

For example, the
Supreme Court has held that an administrative subpoena issued by the Secretary
of Labor pursuant to the Walsh-Healey Act should be enforced if the “evidence
sought by the subpoena was not plainly incompetent or irrelevant to any lawful
purpose of the Secretary in the discharge of her duties under the Act.”  Endicott
Johnson Corp. v. Perkins, 317 U.S. 501, 509 (1943); see also United States
v. Whispering Oaks Residential Care Facility, LLC, 673 F.3d 813, 818 (8th Cir.
2012) (“a subpoena ‘should be enforced when the evidence sought by the subpoena
is not plainly incompetent or irrelevant to any lawful purpose of the agency in
the discharge of its duties.’”) (citation omitted). 

We also find the
opinion of the Fourth Circuit in EEOC v. Randstad, 685 F.3d 433

(4th Cir. 2012) instructive.  In that case,
the EEOC filed an application to enforce an administrative subpoena against an
employment agency.  The subpoena requested employment information from 13
offices in Maryland over a five-year period.  The EEOC was investigating
allegations of disability discrimination based on an alleged literacy policy of
the employer.  The Fourth Circuit rejected the employer's claim
that the geographic and temporal scope
of the subpoena went too far.  Although the employer argued that the subpoena
should have been limited to the position assignments made only by the
complainant's office during the years he
was temporarily employed there, the court disagreed, stating

that it and the district court “must defer to the
EEOC's appraisal of what is relevant so long as it is not obviously wrong.  We conclude the
thirteen-office, five year scope of the subpoena was not an unreasonable exercise of the
EEOC's discretion in deciding how to investigate whether [the employer's] literacy policy was discriminatory.” Id.
at 451 (citation omitted).[11]

The Supreme Court has also held that the burden of
showing that the request pursuant to a subpoena is unreasonable, and therefore
should not be enforced, is on the subpoenaed party.  See Oklahoma Press Pub.
Co. v. Walling, 327 U.S. 186, 218 (1946) (holding that “[n]o sufficient
reason was set forth in the returns or the accompanying affidavits for not
enforcing the subpoenas, a burden petitioners were required to assume in order
to make ‘appropriate defense.’”); see also FTC v. Texaco, Inc., 555 F.2d
862, 882 (D.C. Cir. 1977) (“The burden of showing that the request is
unreasonable is on the subpoenaed party.”).  If an operator has an objection to
the scope of a request made by the Secretary pursuant to section 103(h), it
appropriately bears the burden of identifying the basis for its objection that
the request is not reasonable. 

Warrior did not carry
that burden.   Warrior’s submissions included a letter to the District Manager
stating that the scope of the Secretary’s request was too broad because it
included employees who were not underground miners.  W. Ex. 6.  Warrior failed,
however, to provide the Judge with specific objections stating why a certain
category of employee would lack relevant knowledge.  Instead, Warrior requested
that the Judge decide the case on the arguments it presented in its motion for
summary judgment.  See 35 FMSHRC at 2973.  In that motion, Warrior
argued that, as a general matter, section 103(h) does not provide the Secretary
the right to the disclosure of private contact information of miners, that the
Secretary’s position was in conflict with an MSHA handbook, that Big Ridge was
distinguishable, and that the Secretary was disregarding a miner’s right not to
provide his contact information to MSHA.  W. Mot. for Sum. Dec. at 6-11.  As to
MSHA’s request being overly broad, Warrior’s argument for summary decision was
limited to the following general assertion: “The
request was unreasonably broad because it clearly sought information from
people who MSHA knew would have no information to provide.”  Id. at 11. 

Therefore, Warrior did not provide to the Judge any
significant context or factual support for its cursory contention that the
Secretary’s request was “overly broad and not relevant.”  PDR at 6.  The mere
statement of the breadth of the request does nothing to explain why such
breadth makes the request unreasonable.  Warrior needed to assert with
particularity why inclusion of non-underground miners resulted in overbreadth,
created a burden, or otherwise was unreasonable.  It failed to do so.

MSHA’s information request placed virtually no
“burden” upon the operator.  Obviously the operator could easily produce a list
of its employees, and Warrior made no effort to demonstrate any burden in doing
so.  As the Judge found, “[s]imply supplying the contact information for its
employees placed almost no burden on Warrior.”  35 FMSHRC at 2974.

Further, such disclosure did not impose any obligation
upon any employee.  Each employee could choose whether to cooperate with any
MSHA investigator who might contact the employee.  The information sought by
the Secretary only enabled his representatives to contact relevant witnesses
away from the mine site, a measure that ensures that the identity of potential
witnesses remains confidential during the course of an investigation.  See
Commission Procedural Rule 61, 29 C.F.R. § 2700.61 (“A Judge shall not, except
in extraordinary circumstances, disclose or order a person to disclose to an
operator or his agent the name of an informant who is a miner.”). 

MSHA had an understandable preference to speak with
potential witnesses in true privacy rather than in a closed room at the
workplace of the entity under investigation.  MSHA must be able to conduct an
effective investigation.  Therefore, an objection that MSHA could satisfy its need
to speak with potential witnesses by interviewing employees at the mine carries
no weight whatsoever.[12]

The Commission is mindful and protective of
individuals’ right to privacy.  However, every individual working at a mine
understands the dangers faced by miners.  Therefore, in undertaking such
employment, individuals also understand that the Secretary has the important
task of assuring compliance with laws and regulations protecting the health and
safety of miners. Although employees may refuse to participate in an
investigation by MSHA, it does not overreach by obtaining their names and
addresses in the course of conducting an ongoing investigation into a serious
safety situation at a mine.

Accordingly, we hold that Warrior failed to
demonstrate that any portion of the Secretary’s information request was
unreasonable.

C.   
The Secretary’s special
investigation handbook does not authorize Warrior’s refusal to comply with the
information request, and MSHA’s request did not deprive Warrior of fair notice
of its obligations under the Mine Act.

Warrior
argues that the Secretary’s request for miner contact information impermissibly
forces it and its miners to participate in the Secretary’s investigation, which
conflicts with MSHA’s policy that states that participation in an investigation
is voluntary.  W. Br. at 6-9.  Warrior’s assertion is based on the statement
“all information is voluntary and may be refused” found in MSHA’s Special Investigations
Procedures Handbook at page 5-9.  W. Ex. 12.   

We
disagree.  As to Warrior itself, the argument would give any operator carte
blanche to refuse to participate in an MSHA special investigation, which would
eviscerate MSHA’s ability to conduct a meaningful inquiry.

As
to individual miners, there is no conflict between the MSHA Special
Investigations policy and the Secretary’s request to Warrior.  Any miner
contacted by the Secretary during the course of the investigation can
voluntarily choose whether to participate in a subsequent interview and to what
extent.  Under the Secretary’s proposed investigation method, miners retain
their individual ability to make a decision for themselves, and inform the
investigators of their decision.  The Handbook in no way sanctions
Warrior’s refusal to comply with the Secretary’s request. 

Further,
because there is no conflict between an employee’s right to choose whether to
participate in an investigation and the right of the Secretary to obtain
material reasonably related to its investigation, Warrior was not deprived of
fair notice.

Finally,
we note that it is well established that policy manuals are not officially
promulgated and do not prescribe rules of law that are binding on the
Commission or its Judges.  King Knob Coal Co., Inc., 3 FMSHRC 1417, 1420
(June 1981) (citing Old Ben Coal Co., 2 FMSHRC 2806, 2809 (Oct. 1980)).

D.   
The Secretary’s
interpretation of section 104(b) of the Mine Act is reasonable. 

The
Judge concluded that an inspector can issue an order alleging a failure to
abate a violation pursuant to section 104(b), even if the inspector determines that
no discrete physical location in the mine is affected by the violation.  35
FMSHRC at 2975. 

Warrior
argues that the Judge erred, in that the language of the standard makes the
inspector’s ability to issue a section 104(b) order conditional on his determination
that a specific area has been affected.  We disagree.

Section
104(b) of the Mine Act states:

If,
upon any follow-up inspection of a coal or other mine, an authorized
representative of the Secretary finds (1) that a violation described in a
citation issued pursuant to subsection (a) has not been totally abated within
the period of time as originally fixed therein . . . and (2) that the period of
time for abatement should not be further extended, he shall determine 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 immediately cause all
persons, except those persons referred to in subsection (c), to be withdrawn
from, and to be prohibited from entering, such area until an authorized
representative of the Secretary determines that such violation has been abated.

30
U.S.C. § 814(b) (emphases added). 

Section
104(b) provides two conditions for the issuance of an abatement order: (1) a
violation has not been totally abated within the time period fixed and (2) the
inspector determines that the period for abatement should not be further
extended.  If those two conditions are satisfied, the inspector must then “determine
the extent of the area affected by the violation” and issue the order which
requires the withdrawal of miners from that area.  It is this second set of
requirements that arguably injects ambiguity into the standard.  The Mine Act
provides no specific direction for how an inspector is to proceed if he determines
that a violation has not been abated within the time fixed, the period should
not be extended, but “the extent of the area affected” language is not
applicable. 

When the Mine Act is silent on an issue, the Secretary’s interpretation
which reasonably effectuates the health and safety goals of the Act is
controlling.  Sec’y of Labor on behalf of Wamsley v. Mutual Mining, Inc.,
80 F.3d 110, 115 (4th Cir. 1996).  Deference is accorded to “an agency’s
interpretation of the statute it is charged with administering when that
interpretation is reasonable.”  Energy West Mining Co. v. FMSHRC, 40
F.3d 457, 460 (D.C. Cir. 1994) (citing Chevron U.S.A., Inc., v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984)).  

We
conclude that the Secretary’s interpretation of the statute, permitting the
issuance of a section 104(b) order which states that the inspector determined
that no area of the mine in particular was affected by the violation, is a
reasonable interpretation.

It
is significant that nothing in the language of section 104(b) prohibits the
Secretary from issuing a “no area affected” order.  The language indicates
that, if the two conditions above are met, the MSHA inspector “shall determine
the extent of the area affected by the violation” and order the appropriate
withdrawal of miners from “such area” until it is determined that the violation
has been abated.  Thus, if no specific area of the mine is affected by the
violation, it is reasonable to read the statute as providing that the inspector
is to state that determination and issue a corresponding section 104(b) order.

The
Secretary’s interpretation is also consistent with the remedial nature of the
Act.  See Pattison Sand Co., v. FMSHRC, 688 F.3d 507, 513 (8th Cir.
2012) (“The Act is remedial in nature and its terms should therefore be
construed broadly.”).  Furthermore, it is consistent with the Mine Act’s
structure and progressive enforcement scheme of increasingly severe sanctions
being applied when an operator incurs repeated violations.  See 30
U.S.C. § 814(d) and (e).  

A
“no area affected” order provides an important deterrent to operators who fail
to abate violations in a timely fashion.  Moreover, issuing such orders has
been an ongoing and accepted practice for many years.  See Thunder Basin
Coal Co., 16 FMSHRC 671 (Apr. 1994) (acknowledging the Secretary’s practice
of issuing “no area affected” section 104(b) orders).   The issuance of an
order for a failure to abate promotes compliance by imposing a consequence on an
operator that refuses to comply with the Mine Act.  

While
the immediate result of miner withdrawal is not applicable if no physical space
in the mine is affected by the violation, the withdrawal of miners is not the
only consequence associated with the issuance of a section 104(b) order. 
Pursuant to section 105(b)(1)(A) of the Act, 30 U.S.C. § 815(b)(1)(a), the
Secretary is authorized to seek a separate civil penalty if an operator has not
corrected a violation in a timely manner, i.e., if the issuance of a section
104(b) order for failure to abate the violation was warranted.  Moreover,
section 110(b)(1) of the Act, 30 U.S.C. § 820(b)(1), authorizes the assessment
of a civil penalty on a daily basis if an operator fails to abate a violation. 
Finally, a Judge can assess an elevated civil penalty as a result of an
operator’s failure to abate a violation.  See 30 U.S.C. § 820(i) (“In
assessing civil monetary penalties, the Commission shall consider . . . [factors
that include] the demonstrated good faith of the person charged in attempting
to achieve rapid compliance after notification of a violation.”).  In these
instances, the issuance of a “no area affected” section 104(b) order documents
the operator’s failure to comply, and the prospect of a higher penalty acts as
a deterrent. 

Our dissenting
colleague suggests that the operator was not afforded due process protection
because “[r]ather than an opportunity to seek judicial review concerning the
scope and nature of the agency’s request . . . the operator was exposed to the
threat of immediate and coercive penalties simply for defending its fundamental
rights.”  Slip op. at 20.  The  Seventh  Circuit in Big Ridge
categorically rejected a similar claim (that the mine operators’ due process
rights were violated because MSHA was allowed to impose daily penalties on
mines not complying with record demands before any opportunity for judicial
review).  After analyzing the legislative history of the Mine Act, the Court
found that the procedures for imposing penalties were constitutional.  715 F.3d
at 652-53.  It also noted that the Secretary had granted the operators’ request
not to assess any failure-to-abate penalties until after the disposition of the
hearing before the Judge, and that the Commission granted the mine operators’
request to expedite its review.  Id. at 654.  The Court concluded that
“the penalties do not violate the mine operators’ right to due process because
the statutory scheme offered opportunities both for review and to mitigate the
penalties.”  Id.

Moreover, although our
colleague implies that Warrior was forced to pay penalties for its failure to
turn over the records without recourse to Commission review of MSHA’s request,
this was not the case.  Pursuant to the scheme set forth by Congress in the
Mine Act, the Secretary proposed a penalty for Warrior’s failure to turn over
the records, the operator contested the citation and the penalty, and was only
ordered to pay a $550 penalty after the opportunity for a hearing before
a judge.  In addition, there is no record of any proposed penalty for the
failure to abate order.[13]  

For
the aforementioned reasons, we conclude that the Secretary’s interpretation of
section 104(b) of the Mine Act as authorizing MSHA inspectors to issue “no area
affected” orders is reasonable and should be given deference.   

III.

Conclusion

We affirm the
Judge’s decision to grant the Secretary’s motion for summary decision. 
Accordingly, the citation and the order are both affirmed.  Warrior is ordered
to pay the assessed civil penalty and to provide the requested information to
MSHA within 30 days of the date of this decision if it has not already done
so. 

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

/s/
Patrick K. Nakamura

Patrick
K. Nakamura, Commissioner

Commissioner Althen, concurring:

I concur with the majority decision. 
Commission precedent establishes that, although MSHA does not have authority to
issue administrative subpoenas except in very limited  circumstances, sections
103(a) and (h) of the Mine Act authorize MSHA to demand documents beyond those
required by the Act.  Here, MSHA was pursuing an important investigation; the
document demand imposed virtually no burden on the operator, and implicated
minimal, if any, privacy rights.  I think the request was “reasonable.”

However, I share many of the important concerns
expressed in Commissioner Young’s dissent.  In particular, a document demand
under section 103(h) is not an administrative subpoena.  There are important
differences.  A fundamental difference is the absence of a hearing before
assessment of a proposed civil penalty arising from the failure to comply with
a document demand.1  The right to a fair hearing at a meaningful time and
in a meaningful manner is a fundamental requirement of the due process clause
of the Fifth Amendment.  Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

In Big Ridge, Inc. v. FMSHRC, 715 F.3d 631 (7th
Cir. 2013), the Seventh Circuit offered three reasons that a penalty assessment
before a hearing in a document demand case did not create constitutional
difficulties: (1) mine operators could ask MSHA to delay imposing the penalty;
(2) penalties are not automatic; and (3) mine operators can contest a penalty
assessment before it becomes final.  Id. at 653-54.  The first two
points rest upon a speculative, secular faith in the goodwill of government.[14]2  Only, the third point is substantive. 

In Thunder Basin Coal Co. v. Reich,
510 U.S. 200 (1994), the Supreme Court did not find a constitutional defect in
a pre-hearing assessment of a civil penalty.  However, the Court was careful to
state that it was the record in that case that did not support finding a
constitutional defect.  Id. at 216-18.  That case focused upon the
jurisdiction of federal district courts and upon the circumstances associated
with inspections – that is, the type of MSHA actions that formed the gravamen
of the Court’s acceptance of warrantless inspections in Donovan v. Dewey,
452 U.S. 594 (1981).  Such urgency does not attach to document demands and,
thus, does not offer the set of facts or intellectual underpinning upon which
the Court rested its Thunder Basis decision.

I do not find due process concerns sufficiently raised
and articulated in this case to warrant definitive analysis.  However, I am
uncomfortable with the notion that MSHA may impose significant daily fines upon
respondents to coerce compliance with a demand for records before a fair hearing. 
A future case in which MSHA does not meet either of the first two hypotheses of
Big Ridge would present an opportunity to review the constitutionality
of MSHA’s imposition of severe, pre-hearing fines to coerce disclosure in the
context of a specific investigation or discrimination case. 

In this regard, MSHA recently alleviated
constitutional concerns over the right to immediate review of a notice of
safeguard by instituting a procedure for a technical citation followed by a
hearing.  See Program Policy Letter (“PPL”)
No. P14-V-02 (issued Sept. 24, 2014); Contest of Mine Approval Actions,
MSHA’s Program Policy Manual, V.G-4.  Such a procedure for document
demands, if coupled with an expedited hearing, would go far toward vindicating
the Seventh Circuit’s otherwise naïve assumptions about MSHA and toward
assuring the constitutionality of enforcement procedures for document demands
under section 103(h).

/s/
William I. Althen

William I. Althen, Commissioner

Commissioner Young, dissenting: 

I joined our opinion approving the
Secretary’s information request in Big Ridge, Inc.,  34 FMSHRC 1003 (May
2012), despite some misgivings, because the Mine Safety and Health
Administration’s (MSHA) request was narrowly crafted and the information sought
was necessary to proper, specific and publicly-noticed auditing functions. 
Further, the rulemaking in Big Ridge gave notice that the Secretary
intended to seek precisely the types of information at issue.  Finally,
and most critically, the information request at issue in Big Ridge was
authorized and directed by the Secretary’s own designated Administrator, whom
Congress intended to exercise the discretionary powers under the Act.

The current information request is not
similarly graced, and the majority seeks to follow an appeals court’s
invitation[15]
– on an issue we pointedly did not address in our decision in Big Ridge
– to engage in an alarming and unconstitutional expansion of the law, and to
permit the sort of low-level policy freelancing the Supreme Court has expressly
disapproved on Fourth Amendment grounds.  I dissent. 

At the heart of the majority’s opinion
lies the mistaken assumption that MSHA has the authority to issue
administrative subpoenas in connection with routine mine inspections.[16]  The problem
with this rationale is that Congress not only failed to confer general
administrative subpoena power on MSHA, it designed the Mine Act to preclude any
inferences in favor of that power. 

As we very recently held in Pocahontas
Coal Company:

The precise list of jurisdictional triggers in section
105(d) strongly indicates a Congressional intent to exclude other types of
actions.  See Saxon v. Georgia Ass’n of Indep. Ins. Agents, Inc., 399
F.2d 1010, 1014 (5th Cir. 1968) (holding that “a power which has been withheld
or denied by Congress cannot be found to exist as an ‘incidental’ and
‘necessary’ power” when Congress has specifically delineated other powers). 

38 FMSHRC 157, 160-61 (Feb. 2012).

Despite our fresh recognition of this
fundamental principle of statutory construction, the majority finds a general
subpoena power where none was given.  Indeed, the Mine Act authorizes subpoenas
in only two circumstances: 1) to compel the attendance of witnesses when
the agency holds public hearings to assist its investigation following an
accident or other occurrence (section 103(b)); and 2) to authorize the Commission
to compel the appearance of witnesses and production of evidence for hearings
(section 113(e)).  30 U.S.C. §§ 813(b), 823(e).

Not only is the express authority for
subpoenas severely limited under the Act, the power is extended to the
Commission, and not the Secretary, except when summoning witnesses to public
hearings.  This is important.[17] 
“The Supreme Court has characterized as ‘treacherous business’ such imputations
of power from one agency to an entirely different agency.”  Peters
v. United States, 853 F.2d 692, 699 (9th Cir. 1988) (citing FTC v. Bunte Bros., Inc., 312 U.S. 349, 353
(1941)).

Peters is directly on point, and
confronts the extension of subpoena power where none was conferred by
Congress.  The Immigration and Naturalization Service (INS) assumed it had the
power to issue subpoenas because the Internal Revenue Service had been granted
similar power to issue summonses in an analogous situation.  Id. at

698.  In reversing the District Court’s “expansive” reading of the authorizing
statute, the Court of Appeals contrasted the inferred power with the “specific
legislative direction [given to the IRS] in an area heavily explored by both
Congress and the courts.”  Id. at 698-99. 

Here, the structure of that Act clearly
evinces Congressional intent to limit the Secretary’s subpoena power, by
specifying this power may be wielded by the Secretary in only one situation not
at all like or related to the circumstances presented by this case.  Further,
the legislative history and the structure and operation of the Act make clear
that Congress intended independent adjudication by the Commission, and placed
significant restraints on the Secretary’s ability to enforce the Act and to
adjudicate issues unilaterally.  Thus, except when MSHA convenes a public
hearing authorized by the Act, only the Commission has the authority to issue
subpoenas, as a necessary extension of its power to conduct hearings. 

This necessity, too, has been examined in
a Court of Appeals, which similarly found unavailing the government’s arguments
in favor of an inferred power to issue subpoenas.  See Johnson v. United
States, 628 F.2d 187, 193 (D.C. Cir. 1980) (“Subpoena power is not
an intrinsic feature of the administrative process, and courts cannot engraft
subpoena authority onto an agency’s charter from Congress.”) (citation
omitted).  In Johnson, a discharged federal employee claimed that his
due process rights were violated by the Civil Service Commission’s failure to
issue subpoenas for witnesses on his behalf.  Id.  The Court of Appeals
held that there was no authority for the subpoenas sought by the employee.  Id. 
Citing precedent, the Court reiterated that “‘(t)he Commission cannot
confer upon itself the power of subpoena in the absence of a statute requiring
it to hold hearings of the type involving subpoenas.’”  Id. (citing
Deviny v. Campbell, 194 F.2d 876, 880 (D.C. Cir.), cert. denied,
344 U.S. 826 (1952)).[18]

One cannot overlook, in this context, the
significance of Congress’ choice to establish an independent Commission.  Not
only does the Labor Department lack the authority to conduct hearings, but
Congress assigned that function to another, distinct entity: the Commission.  Indeed,
the Commission has express subpoena power as an extension of its authority to
conduct hearings under the Act.  Where Congress has clearly delineated, and
limited, the subpoena power under the Mine Act, it is improper for the
Commission – or the courts – to infer additional power clearly withheld.[19]  

Noting the Secretary’s own awareness that
it lacks subpoena authority beyond that expressed in the Act seems almost
beside the point, in light of the overwhelming authority weighing against a
more expansive view.  But the Secretary’s representatives did in fact seek
greater subpoena powers, and the sponsors of the bill acknowledged the
Secretary’s absence of authority to issue such subpoenas.  See Big Ridge,
715 F.3d at 642 (citing Committee on Education and the Workforce
Democrats, H.R. 1373: The Robert C. Byrd Mine Safety Protection Act of 2013,
113th Cong., 1st Sess. (Mar. 21, 2013) (citation omitted)).  While the Seventh
Circuit dismissed this, id., the Secretary’s clear understanding of its
administrative boundaries is nothing less than an acknowledgment of the
governing law here.

Even if one were to somehow find the
request permissible under another theory, in this context the request must be
recognized on principle as facially overbroad and unreasonable under Donovan
v. Dewey, 452 U.S. 594 (1981).  From conditions in one section of a mine,
MSHA has concocted theories justifying an unbounded inquisition into the
operator’s affairs and the authority, not only to question anyone whom it
wishes on any subject, but to compel the operator’s cooperation in what appears
to be the classic – and forbidden – “fishing expedition.” 

The agency presents no evidence of a
mine-wide problem, but appears confident that it would find one, but for the
operator’s intransigence.  See S. Br. at 20 (“At the beginning of its
section 110 investigation, MSHA could not have known how long the
[subject] violations had existed, which agents knew or had reason to know of
their existence, and whether the violations occurred because of broader
practices occurring elsewhere in the mine . . . .”) (emphasis added).  This
is essentially an acknowledgment that MSHA, despite the broad – and Donovan-approved
– authority to enter the mine as part of the regular inspection process and to
examine all documentation in the mine, must nonetheless also be given general
authority to demand documentation that a low-level field agent (contra the
Supreme Court’s proscription in Marshall v. Barlow’s, Inc., 436 U.S. 307
(1978)) believes he may need to build a case without any reason to
believe, at the outset, that the case exists.

The agency’s argument is seductive.  The logistical
difficulty and inconvenience of complying with the Secretary’s request in this
case is, indeed, trivial.  In light of the protracted litigation that has
ensued, it may in fact have been easier and less costly for the operator to
provide access to all of the contact information for everyone who works at the
mine, just as it may be more convenient to simply consent to an officer’s
request to rifle through one’s possessions on the street rather than insisting
on a warrant.  However, the Seventh Circuit’s opinion in Big Ridge rests
squarely on Donovan, which draws its force in turn from the
Fourth Amendment.

We
might do well to remember, then, that Donovan explains conformance to
constitutional protections – it does not do away with them.  Contrary to the
majority’s assumption, Donovan requires that a reasonable search be both
authorized by law and necessary.  See Donovan, 452 U.S. at
599 (“Inspections of commercial property may be unreasonable if they are not
authorized by law or are unnecessary for the furtherance of federal
interests.”).  Thus, the majority’s confidence in the breadth of the Seventh
Circuit’s opinion – which dismisses with hardly a concern the operator’s
argument against the supposed “subpoena” power – is sorely misplaced. 
Asserting that Congress “authorized” agency personnel below the Secretary to
seek any “relevant” information from operators, with the bounds of that inquiry
left solely to those subordinate agents, disregards Donovan and its
constitutional underpinnings, as well as the Act’s provision of a forum for
ensuring the agency does not have the very sort of unfettered discretion it
claims before us in this case. 

Donovan, in fact, speaks directly
to just that problem:

“Where Congress has authorized inspection
but made no rules governing the procedures that inspectors must follow, the Fourth Amendment and its various
restrictive rules apply.”  Colonnade Corp.
v. United States, supra, 397 U.S., at 77, 90 S.Ct., at 777.  In such cases, a warrant may be necessary to protect
the owner from the “unbridled discretion [of] executive and administrative
officers,” Marshall v.
Barlow’s, Inc., supra, 436 U.S. at 323, 98 S.Ct., at 1826, by assuring him that “reasonable legislative or
administrative standards for conducting an . . . inspection are satisfied with
respect to a particular [establishment].”  Camara v.
Municipal Court, 387 U.S. 523, 538, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930
(1967).

Id. 
Furthermore, the very concerns which led the same Supreme Court to disapprove
of warrantless searches under the Occupational Safety and Health Act in Marshall
v. Barlow’s, Inc. are present in this case.  As the Donovan Court
explained, in contrasting the regularity of inspection spelled out in the Mine
Act with the asserted authority to inspect the panoply of businesses regulated
under the OSHA:

In assessing this regulatory scheme [under
the Occupational Safety and Health Act], this Court found that the provision
authorizing administrative searches “devolves almost unbridled discretion upon
executive and administrative officers, particularly those in the field,
as to when to search and whom to search.”

452 U.S. at 601 (emphasis added).  This, then, represents
the proper perspective for analyzing the request at issue in this case: is
there any limit or regularity inherent in the exercise of the Secretary’s
discretion under section 103(h), when employed by an inspector? 

There is precious little.  The request in Big
Ridge involved an initiative developed by or at the direction of the
Assistant Secretary, published in advance, and subject to public review and
comment.  The nexus between the information sought and the audit function for
which it was needed was, as we held and the Seventh Circuit affirmed, tightly
focused. 

Contrast those facts with the current
request, initiated by the type of low-level field agent whose discretion the
Supreme Court found so troubling in Donovan and Barlow’s, Inc.  Not
only does the agency assert de facto subpoena power has somehow been
conferred (silently) all the way from Congress to a mine inspector, it does so
without even the modest due process protections an actual subpoena might
provide to its recipient.  Rather than an opportunity to seek judicial review
concerning the scope and nature of the agency’s request here, as it would have
with a proper subpoena, the operator was exposed to the threat of immediate
and coercive penalties simply for defending its fundamental rights.[20] 

Those rights are the elephant in a
relatively small room.  Having been granted the power to conduct unnoticed
inspections, and access without a warrant to various documents and information,
the agency nonetheless asserts it must also have the power to require
the operator to produce documents beyond those needed to investigate a known
violation, in order to determine whether there might be other violations
elsewhere in the mine, without providing any foundational facts to gird its
suspicions. 

Speaking of facts, we should also recall
that this case came to us on summary decision.  Thus, the majority today
affirms the judge’s finding that the government was entitled to the information
it sought as a matter of law and that no plausible factual scenario – a
rogue inspector, government overreach on the particulars – might give pause on
the way to affirmance.  This is a loose and dangerous game, with principles
that protect the rights of a free people arguably at stake.  In the end, the
fact that Ernest Miranda was probably guilty[21]
didn’t prevent the Supreme Court from honoring the promises made by the
Constitution, see Miranda v. Arizona, 384 U.S. 436 (1966), and the fact
that this petitioner operates a mine which failed to fulfill its duties under
the Mine Act – as almost all do, from time to time – should not preclude a
proper constitutional analysis in this case. 

The Mine Act represents a negotiated
settlement of contentious safety and health issues among labor, industry and
government interests.  It was produced through compromise, and has inured to
the benefit of both the nation’s miners and the mining industry.  As with all
federal laws, it must be read in harmony with the Constitution’s protection of
fundamental rights.  The Commission must respect the Constitution’s limits on
the exercise of federal power, and is also bound to respect the terms of the
Act as they were negotiated, including the significant procedural limits
imposed on the Labor Department and the requirement for independent
adjudication by the Commission.  Extending to the agency powers that Congress
withheld in drafting the Act represents legal error and a breach of trust. 
Accordingly, I dissent. 

/s/
Michael G. Young

Michael G. Young, Commissioner

[1] 
Section 103(h) of the Mine Act requires mine
operators to “provide such information, as the Secretary . . .  may reasonably
require from time to time to enable him to perform his functions under this
Act.”  30 U.S.C. § 813(h). 

[2] 
Section 107(a) states that “[i]f, upon any
inspection . . . an authorized representative of the Secretary finds that an
imminent danger exists, such representative shall . . . issue an order
requiring the operator of such mine to cause all persons . . . to be withdrawn
from . . . such area.” 

30
U.S.C. § 817(a). 

[3] 
Section 75.202(a) states that “[t]he roof, face
and rib’s of areas where persons work or travel shall be supported or otherwise
controlled to protect persons from hazards related to falls of the roof, face
or ribs and coal or rock bursts.”

[4] 
Section 75.360(a)(1) provides that “a certified
person designated by the operator must make a preshift examination within 3
hours preceding the beginning of any 8-hour interval during which any person is
schedule to work or travel underground.”

[5]  
Section 110(c) states that “[w]henever a
corporate operator violates a mandatory health or safety standard or knowingly
violates or fails or refuses to comply with any order issued under this Act or
any order incorporated in a final decision issued under this Act . . . any
director, officer, or agent of such corporation who knowingly authorized,
ordered, or carried out such violation, failure, or refusal shall be subject to
. . . civil penalties, fines, and imprisonment . . . .”  30 U.S.C. § 820(c). 

[6] 
Section 103(a) provides that “[a]uthorized
representatives of the Secretary . . .  shall make frequent inspections and
investigations in coal or other mines each year . . . .”  30 U.S.C.

§
813(a).  Section 103(h) states that “[i]n addition to such records as are
specifically required by this Act, every operator of a coal or other mine shall
. . . . provide such information, as the Secretary . . . may reasonably require
from time to time to enable him to perform his functions under this Act.”  30
U.S.C. § 813(h). 

[7] 
Section 104(b) authorizes an inspector to issue
an order to an operator if, upon any follow-up inspection of the mine, he
determines that a violation was not abated in the time specified.  30 U.S.C. §
814(b). 

[8] 
30 C.F.R. § 50.41 states that “[u]pon request by
MSHA, an operator shall allow MSHA to inspect and copy information related to
an accident, injury or illnesses which MSHA considers relevant and necessary to
verify a report of investigation required by § 50.11 of this part or relevant
and necessary to a determination of compliance with the reporting requirements
of this part.”

[9] 
Even if it could be said that MSHA must
establish that the information it seeks from Warrior is “necessary” for its
investigation, MSHA has met this burden in this case.  As noted, infra,
miners other than those who worked in the immediate area of the violations may
have relevant information, and MSHA must be able to follow the investigation
where it leads. 

[10]  Our dissenting colleague is deeply critical of the
Seventh Circuit’s analogizing of MSHA’s authority to request information
pursuant to section 103(h) to the issuance of administrative subpoenas, and
suggests that the court may have been unaware of MSHSA’s lack of general
subpoena power.  Slip op. at 15-16 n.1.  It is certainly true that the Mine Act
does not provide MSHA with the express power to issue subpoenas except in
connection with summoning witnesses to appear and documents to be produced for
investigatory public hearings.  30 U.S.C § 813(b).  However, as discussed supra,
the Mine Act, in section 103(h), clearly requires “every operator of a coal or
other mine [to] establish and maintain such records, make such reports, and
provide such information, as the Secretary . . . may reasonably require
from time to time . . . .”  30 U.S.C. § 813(h) (emphasis added).  Hence,
although Congress did not give MSHA the power to subpoena individuals to
testify except in connection with investigatory public hearings, it did give
MSHA the power to reasonably require the production of records and other
information from operators.  This power is properly analogized to the power to
issue administrative subpoenas for such records and information.       

[11]
 Commissioner Young’s reliance on United
States v. Johnson, 628 F.2d 187, 193 (D.C. Cir. 1980), slip op. at 17, is misplaced.  Johnson involved a
discharged employee’s request that a government agency issue subpoenas for
witnesses on his behalf.  Our opinion rests not on MSHA’s power to issue
subpoenas, but on Congress’s explicit grant of authority to MSHA pursuant to
section 103(h) of the Act. 

Commissioner Young relies on Donovan v. Dewey, 452 U.S. 594 (1981)
for the Fourth Amendment proposition that MSHA’s reasonable search must be both
authorized by law and necessary.  Slip op. at 19.  However,
as the Seventh Circuit made clear in Big Ridge, the protections
available to mine operators under the Fourth Amendment when faced with a documents
request are best analogized to the protections available to a regulated entity
which has received a request for documents in the form of an administrative
subpoena.  Accordingly, it distinguished the document request in Big Ridge
from MSHA’s ability to conduct warrantless physical searches of mine property
considered in Donovan.  Because Big Ridge, like this case, did
not involve a physical search of a mine, the Seventh Circuit concluded that
“the Fourth Amendment issues are better understood in terms of the law
applicable to administrative subpoenas.”  715 F.3d at 645.

[12] 
Warrior suggests that the investigators could
have visited the mine and asked miners to join them at an off-site location for
interviews.  We reject this argument.  The Mine Act does not require such an
ungainly process and, as stated above, MSHA is authorized to make reasonable
requests for information during an investigation.

[13]  We also note that Warrior could have requested an
expedited hearing before the Judge.  See Commission Procedural Rule 52, 29
C.F.R. § 2700.52.

1   There
are other differences.  For example, it appears that the operator never
provided the demanded information at issue in this case.  Unless MSHA has kept
a section 110(c) investigation open for more than four years awaiting the names
and addresses of all employees, it completed its investigation without the
operator’s compliance with the demand.  Assuming that is the case, if this
proceeding was analogous to an administrative subpoena proceeding, then, when
the agency closed the investigation, a motion to compel compliance with a
subpoena would be moot.  Here, apparently, the Secretary collects a monetary
penalty even though MSHA has foregone receipt of the documents in completing
its investigation.

2  This unusual case provides only a modicum of justification for the Big
Ridge court’s initial propositions.  Here, MSHA did not seek a daily fine
for the failure to abate order, and followed normal processes in assessing a
fine for the section 104(a) citation.  Indeed, the records obviously were not
of real interest to MSHA as it allowed the contest to continue for over four
years and, apparently, closed the investigation without obtaining the
information.  This provides no comfort that in other cases, when MSHA actually
wants the information, it will not propose daily fines to coerce compliance
before a hearing.

[15]  The Seventh Circuit’s reference to administrative
subpoenas provides no support for its recognition of a general subpoena power
in the Mine Act.  Like the majority (see n.2, infra), the Court
of Appeals simply assumes that the subpoena power exists, stating that it is
“not persuaded” otherwise.  Big Ridge, Inc. v. FMSHRC, 715 F.3d 631,
642 (7th Cir. 2013).  This is a bare conclusion that cites no law governing the
issuance of subpoenas under the Act or as a general matter of administrative
law.  Somewhat ironically, the court states, “we conclude that the record
demands are best understood, in constitutional terms, as administrative
subpoenas.”  Id. at 644.  Of course, “in constitutional terms,” MSHA has
no power whatsoever, except that which has been bestowed by Congress.  It may
be understandable that the Court of Appeals would assume that the Mine Act
authorizes the issuance of administrative subpoenas – a prerequisite to their
use and enforcement under the Administrative Procedure Act.  See 5
U.S.C. § 555(d) (requirement that agency subpoenas be “authorized by law”).  It
is relatively rare for an agency not to have Congressional authorization
to issue administrative subpoenas, which suggests strongly that such power must
be express, and not implied.  See Edward A. Tomlinson, Discovery in
Agency Adjudication, 1971 DUKE L.J. 89, 93 n.19 (1971) (“Those few
remaining agencies which do not possess the subpoena power must obtain it from
Congress.”)

[16]  In seeking to rationalize the Seventh Circuit’s
position on administrative subpoenas, the majority falls into the same trap as
the appeals court but lacks the legally-valid fallback position afforded by the
distinguishable facts in Big Ridge.  The appellate court could properly
have noted that Congress did, in fact, confer significant powers on the
Secretary, along with the appropriate rulemaking he had undertaken in direct
support of the records request, and affirmed our holding on that basis. 
Instead, it sought to overcome the significant impediments the Supreme Court
has imposed on agency searches and seizures by assuming, as the majority now
has in turn, that MSHA has a power Congress withheld from it.  Thus, the
majority’s fundamental error is its endorsement of the Seventh Circuit’s
assumption that the authority exists and then analogizing the case at bar to
cases where the issue was the scope of an authorized administrative subpoena.  These
cases have no relevance because MSHA does not possess subpoena power, and the
alternative justifications offered have been expressly refuted by the Supreme
Court.  See pp. 18-19, infra.

[17]  In addition to the case law cited in this opinion,
it’s worth noting that, in a Report to Congress directed by Public Law 106-544,
Section 7, the Department of Justice expressly noted the limited scope
of the Secretary’s subpoena power under the Act.  Citing section 103(b) of the
Act, the report states that this conferral is the Act’s sole administrative
subpoena authority:

For
the purpose of making any investigation of any accident or other occurrence
relating to health or safety in a coal or other mine, the Secretary may, after
notice, hold public hearings, and may sign and issue subpoenas for the
attendance and testimony of witnesses and the production or [sic] relevant
papers, books, and documents, and administer oaths.”  Federal courts have
long recognized that the subpoena power of the Secretary under this and the
predecessor Federal Coal Mine Health and Safety Act of 1969 (P. L. 91-173) is
limited to public hearing settings, United States v. Blue
Diamond Coal Co., 667 F2d 510, 519 (6th Cir. 1981); UMWA v. Martin,
785 F. Supp. 1025, 1027 [n].1 (D.D.C. 1992).  Thus, it is clear both from the
wording of the statute and the court interpretations that the subpoena power of
the Mine Act is limited to investigatory public hearings being conducted by the
Secretary.

U.S.
Department of Justice, Office of Legal Policy, Report to Congress on the Use
of Administrative Subpoena Authorities by Executive Branch Agencies and
Entities, Appendix A-1 (emphasis added).  Of course, pursuant
to Section 112 of the Mine Act, all litigation by the Solicitor before the
Commission is subject to the direction and control of the Attorney General, and
the Justice Department’s frank appraisal in a statutorily-mandated report
should thus be accepted as authoritative.

[18]  The majority attempts to distinguish Johnson
on its facts, but the fundamental legal principles upon which the decision
rests are express, forceful and controlling here and do not depend on the
peculiar circumstances of that case for their vitality. 

[19]  Where some courts have inferred a subpoena power
from a statute, the inference arose from a statutory grant that implied the
power by necessity.  See U.S. v. Florida Azalea Specialists, 19
F.3d 620, 622-23 (11th Cir. 1994) (court, citing Peters, affirmed
issuance of subpoena as within the scope of the subpoena authority conferred by
Congress, even though the specific circumstance was not expressed in the statute
authorizing investigations by the Office of Special Counsel); U.S. ex rel
Richards v. De Leon Guerrero, 4 F.3d 749, 753 (9th Cir. 1993) (subpoena
power is inferred from the grant of audit power to the Department of Interior
under Insular Areas Act, which was expressly made “in addition to the authority
conferred upon the Inspector General by the Inspector General Act of 1978.”)
(citation omitted).  Both cases followed Peters and specifically quoted
its holding that “[t]he authority of an administrative agency to issue
subpoenas for investigatory purposes is created solely by statute.”  Florida
Azalea, 19 F.3d at 623; De Leon Guerrero, 4 F.3d at 753. 

[20]  This really is a matter of fundamental rights.  As
the Court of Appeals for the Sixth Circuit has noted, and as the Secretary once
conceded, the diminished expectation of privacy the Supreme Court has applied
to businesses, even those that are “pervasively regulated,” has not abrogated
the protections of the Fourth Amendment.  McLaughlin v. Kings Island, Div.
of Taft Broadcasting Co., 849 F.2d 990, 993-94 (6th Cir. 1988), (citing
New York v. Burger, 482 U.S. 691, 699 (1987)).  Indeed, the Supreme
Court established clear standards in Burger for balancing the government’s
interests against the Fourth Amendment rights of pervasively regulated
businesses:

[B]efore any such warrantless inspection or search is
constitutionally acceptable:

First, there must be a “substantial” government interest
that informs the regulatory scheme pursuant to which the inspection is made. 

Second, the warrantless inspections must be “necessary
to further [the] regulatory scheme.”

. .
.

Finally, “the statute’s inspection program, in terms
of the certainty and regularity of its application, [must] provid[e] a
constitutionally adequate substitute for a warrant.”  In other words, the
regulatory statute must perform the two basic functions of a warrant: it must
advise the owner of the commercial premises that the search is being made
pursuant to the law and has a properly defined scope, and it must limit the
discretion of the inspecting officers.

Id. at 994 (citing Burger,
482 US at 702-03) (ellipsis in original).  The majority fails to even consider
that the Supreme Court has established benchmarks which control our evaluation
of such matters, let alone attempt to analyze the case before us against those
benchmarks.  There is no administrative subpoena or any other “constitutionally
adequate substitute for a warrant” here, and as this opinion has noted, there
are no real limits on the discretion exercised by the Secretary’s delegates at
the district level.  The request is therefore invalid even if the Secretary
could establish that the first two Burger requirements have been met. 

[21]  After his confession was suppressed, Miranda was
retried without it and convicted of the kidnapping and rape of which he had
been accused.  See Arizona v. Miranda, 450 P.2d 364 (Ariz.
1969).