                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 17a0416n.06

                                         No. 16-3848

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                  FILED
  HOPKINS COUNTY COAL, LLC                 )                                  Jul 18, 2017
                                           )                             DEBORAH S. HUNT, Clerk
      Petitioner,                          ) 
                                           ) 
  v.                                       ) 
                                           )               ON APPEAL FROM THE
  THOMAS E. PEREZ, Secretary of Labor, )                   FEDERAL MINE SAFETY
  United States Department of Labor, Mine )                AND HEALTH REVIEW
  Safety and Health Administration (MSHA);                 COMMISSION
                                           ) 
  FEDERAL MINE SAFETY AND HEALTH
                                           ) 
  REVIEW COMMISSION,
                                           ) 
         Respondents.                      ) 
                                           ) 

BEFORE:       KEITH, ROGERS, and KETHLEDGE, Circuit Judges.

       DAMON J. KEITH, Circuit Judge. This appeal involves the scope of the Secretary of

Labor’s (“Secretary”) power to access company documents during investigations of

discrimination complaints under the Federal Mine Safety and Health Act of 1977 (“Mine Act”).

An employee of Hopkins County Coal (“HCC”), Robert Gatlin (“Gatlin”), filed a discrimination

complaint with the Department of Labor’s Mine Safety and Health Administration (“MSHA”).

After forwarding the discrimination complaint to HCC and making an initial request to interview

HCC managerial employees, the MSHA sent a letter to HCC requesting to review five sets of

documents that it claimed were necessary to properly evaluate Gatlin’s discrimination claim.

Following a series of letters and a site visit to the mine, HCC refused to produce (1) Gatlin’s

personnel file and (2) the personnel files of all other employees at the mine where Gatlin was

employed who faced discipline, reprimand, or termination during the previous five years for
No. 16-3848, Hopkins Cty. Coal v. Sec’y of Labor, et al.


engaging in the conduct which led to Gatlin’s termination. During the site visit, an MSHA

investigator issued two citations and an order to HCC under § 104(a) and (b)1 of the Mine Act,

and HCC contested those citations with the Federal Mine Safety and Health Review Commission

(“Commission”).        Following a hearing, an ALJ upheld the citations and order, and the

Commission affirmed the decision. On appeal, HCC claims that (1) the MSHA exceeded its

authority under the Mine Act by demanding company personnel documents without first

identifying any basis for a discrimination claim and (2) the MSHA’s demands to inspect the

records violated HCC’s Fourth Amendment rights. For the following reasons, we AFFIRM.

                                                      I.

        HCC owned and operated the Elk Creek Mine (hereinafter “the Mine”) in Madisonville,

Kentucky. Gatlin was terminated from his job as a non-union belt examiner at the Mine on

January 8, 2009, after refusing to perform a pre-shift examination that he believed entitled him to

an extra hour of pay.        HCC’s stated reason for terminating Gatlin was “insubordination.”

On January 20, 2009, Gatlin filed a discrimination complaint against HCC with the MSHA, and

an MSHA complaint processor forwarded a copy of the discrimination complaint to HCC. A

cover letter attached to the complaint informed HCC that there was an investigator assigned to

the case who would contact the company during the fact-finding stage of the investigation.

Gatlin’s complaint against HCC stated as follows:

        I feel that I was unfairly terminated due to being directed to do more than my
        regular job duties on a daily basis, which I would do on weekends for extra pay.
        I also feel that the comment about the union played a part in my being discharged.
        I would like my job back, any negative comments deleted from my personnel file
        and backpay for the time I’ve been off. I feel that my name has been black balled
        in the mining industry around here and they will not hire me.


        1
           The current citation for this section of the Mine Act is 30 U.S.C. § 814. This opinion refers to each
relevant section of the Mine Act by its originally published section number to avoid confusion and maintain
continuity with the practical usage of the MSHA.


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No. 16-3848, Hopkins Cty. Coal v. Sec’y of Labor, et al.


The Commission would later determine that this complaint, standing alone, did not set forth a

protected activity for a discrimination claim pursuant to § 105(c) of the Mine Act.2 Secretary of

Labor v. Hopkins Cty. Coal, LLC, 38 FMSHRC 1317, 1318 (June 2016).

        However, the day after the complaint was sent to HCC, MSHA Special Investigator

Kirby Smith (“Smith”) conducted a post-complaint interview of Gatlin and determined that

Gatlin may have engaged in a protected activity under the Mine Act. Specifically, Smith

testified that his interview with Gatlin revealed that HCC may have instructed Gatlin to fix,

repair, or correct an unsafe condition in the Mine in lieu of recording each potential safety

violation. Gatlin also reported to Smith that his job had become so burdensome that he didn’t

have sufficient time to correct the unsafe conditions he discovered. Additionally, Smith believed

based on the post-complaint interview that Gatlin may have been reporting an increased number

of hazardous conditions to management in his pre-shift and on-shift book.3

        Following the post-complaint interview, Smith prepared a letter requesting permission

from MSHA District Manager Carl Boone (“Boone”) to initiate an investigation into Gatlin’s

case. Boone approved and signed the letter, which was addressed to HCC General Manager

William Adelman (“Adelman”) and requested interviews with five of HCC’s management-level

employees regarding Gatlin’s discrimination complaint. The letter, dated January 26, 2009, was

sent to HCC. In response, counsel for HCC “refused to arrange the requested interviews unless

MSHA identified the protected activity alleged in Gatlin’s] discrimination claim.” Hopkins Cty.

Coal, 38 FMSHRC at 1319. MSHA never responded directly to this letter.

        On February 23, 2009, Boone sent another letter stating that MSHA was conducting an

investigation into Gatlin’s discrimination complaint and requested six sets of documents that
        2
            The current statutory citation for the anti-discrimination provision of the Mine Act is 30 U.S.C. § 815(c).
        3
          The Commission credited Smith’s testimony, stating that Smith “determined that Gatlin may have
engaged in protected activity and may have suffered an adverse action.”


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No. 16-3848, Hopkins Cty. Coal v. Sec’y of Labor, et al.


MSHA determined to be “necessary to properly evaluate the claim.” The request for documents

included: (1) a copy of Gatlin’s personnel file; (2) any documents showing disciplinary action

that was taken against Gatlin by HCC; (3) documents showing any hazards or potentially

hazardous conditions at the Mine that were recorded between July 1, 2008 and January 31, 2009;

(4) any HCC employee handbook or manual; (5) the personnel files of all employees at the Elk

Creek Mine who were disciplined, reprimanded, or terminated during the period of January 1,

2004 – January 20, 2009 for engaging in the conduct which led to Gatlin’s termination

(“comparators”); and (6) all documents relied on by HCC in its decision to terminate Gatlin. The

letter stated that all documents requested therein should be provided by close of business on

March 2, 2009 and noted that a failure to comply with the request would result in the matter

being considered for legal action under § 1084 of the Mine Act. After the exchange of several

letters between Boone and HCC counsel, HCC agreed to produce all the documents requested

except for the personnel files of Gatlin and the comparators.

        On March 20, 2009, Boone notified HCC that MSHA investigators would arrive at the

Mine to conduct a site visit on March 23, 2009. Boone stated his expectation that the personnel

files would be provided to the investigators at that time. Once again, HCC counsel responded

with a letter challenging the MSHA’s right to review the personnel files and contended that the

company is entitled to know the protected activity underlying Gatlin’s discrimination claim as a

prerequisite to its duty to produce the requested documents. MSHA never responded.

        On March 23, 2009, Smith and MSHA Investigator Adamson arrived at the Mine and

were met by Adelman, the Mine’s general manager.            At approximately 8:15 a.m., Smith

requested to review the personnel files, and Adelman refused to make them available. Then,

Smith issued a citation to HCC for failing to produce files as required of mine operators
        4
            30 U.S.C. § 818


                                                    4
No. 16-3848, Hopkins Cty. Coal v. Sec’y of Labor, et al.


(“operators”) under § 103(a) and (h) of the Mine Act.5 Smith gave Adelman forty-five minutes,

until 9:00 a.m., to abate the violation. After Adelman spoke with HCC counsel, he informed

Smith that he did not intend to turn over the personnel files. Consequently, at 9:00 a.m., Smith

issued a withdrawal order under § 104(b) of the Mine Act. Five minutes later, at 9:05 a.m.,

Smith issued a final citation for continuing to operate in the face of a withdrawal order. Because

the violation was not abated, HCC became subject to daily civil penalties of up to $5,000 per day

pursuant to § 110 of the Mine Act.6

        On the same day that HCC received two citations and a withdrawal order arising from

their refusal to produce the requested personnel files, HCC filed a notice of contest with the

Commission. On March 26, 2009 following a conference between the parties, HCC voluntarily

produced Gatlin’s personnel file and the redacted personnel files of the comparators, thereby

relieving HCC of continuing liability for daily civil fines.

                                                          II.

        On June 7, 2011, a hearing was held before an ALJ from the Federal Mine Safety and

Health Review Commission. During those proceedings, HCC contested the validity of the two

citations and the withdrawal order issued by MSHA Inspector Smith during his site visit to the

Mine. HCC argued, inter alia, that: (1) § 103 of the Mine Act does not authorize the Secretary to

request personnel files which are not required to be kept under the Mine Act during the course of

discrimination investigations; and (2) the demand for personnel files violated HCC’s Fourth




        5
            The current citation for this section of the Mine Act is 30 U.S.C. § 813.
        6
            The current citation for this section of the Mine Act is 30 U.S.C. § 820(b)(1).


                                                            5
No. 16-3848, Hopkins Cty. Coal v. Sec’y of Labor, et al.


Amendment Rights.”7 The Commission provided the following summary of the ALJ’s decision,

which upheld the citations and order:

         [The ALJ] rejected HCC’s argument that section 103 of the Act does not
         authorize the Secretary to request personnel files during a discrimination
         investigation. He determined that because investigating discrimination claims is a
         function of the Secretary, information relevant to assessing the merits of those
         claims is “reasonably required.” The [ALJ] found the Secretary’s interpretation
         of sections 103(a) and (h) reasonable and entitled to deference. He determined
         that the requirement in section 103(h) that the information sought be “reasonably
         required” obligates the Secretary to have a reasonable understanding of the
         complainant’s claim prior to making a document request. He found that Smith
         had credibly testified that he had a reasonable understanding of Gatlin’s claim
         before making the request, and rejected HCC’s claim that the request was a
         fishing expedition.8

         The [ALJ] rejected HCC’s Fourth Amendment challenge on the grounds that
         under Donovan v. Dewey, 452 U.S. 594, 604 (1981), warrantless inspections
         under the Mine Act are permissible because the mining industry is pervasively
         regulated, and the certainty and regularity of the Act’s inspection scheme provide
         an adequate substitute for a warrant. He further stated that the Secretary’s interest
         in promoting miner safety outweighs HCC’s general interest in its personnel
         records.”

Hopkins Cty. Coal, 38 FMSHRC at 1320.

         In a June 24, 2016 opinion, the Commission affirmed the ALJ’s decision to uphold the

citations and withdrawal order issued by the MSHA. The Commission held as follows: (1) the

Secretary had authority to investigate Gatlin’s discrimination claim even though the miner’s

initiating complaint did not articulate a protected activity; (2) § 103(h) authorizes the Secretary

to request certain files that an operator is not legally required to maintain so long as the requested


         7
           HCC does not raise several arguments that it presented to the ALJ on appeal, and these arguments are thus
waived. See Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 544 n.8 (6th Cir. 2002) (“It is
well established that an issue not raised in a party's briefs on appeal may be deemed waived”).
         8
           “Investigator Smith testified that by February 6, he had not yet established a protected activity, but based
on allegations made by Gatlin in the interview, Smith began looking into the possibility of a protected activity
related to determining and reporting safety hazards. Specifically, Gatlin alleged that as a belt examiner he had been
required to perform work beyond his regular job duties, which made his job so burdensome that he did not have
enough time to correct the safety hazards he found. He alleged that as a result, he began citing more hazardous
conditions in the pre-shift and on-shift exam books. Gatlin stated that he had been told that he did not necessarily
have to record a hazard if it was corrected” (footnote in original).


                                                          6
No. 16-3848, Hopkins Cty. Coal v. Sec’y of Labor, et al.


records are “reasonably required” to enable him to perform his functions under the Mine Act;

(3) the personnel files requested by the Secretary were reasonably required in order to investigate

Gatlin’s discrimination claim because they tended to prove or disprove a prima facie element of

the claim; (4) HCC was not entitled to notice of the protected activity alleged as a prerequisite to

the Secretary’s right to conduct an investigation or to an operator’s duty to comply with the

Secretary’s investigation; and (5) the Secretary’s demand to review the personnel records did not

violate HCC’s Fourth Amendment Rights because the inspection was reasonable under Donovan

v. Dewey, 452 U.S. 594 (1981), and the request satisfied the requirements for an administrative

subpoena. The Commission therefore affirmed the ALJ, and HCC appealed.

                                                III.

        When presiding over an appeal from a final order of the Commission, “[t]his Court

reviews the Commission’s decision and not the underlying decision of the ALJ as such.”

Pendley v. Fed. Mine Safety & Health Review Comm’n, 601 F.3d 417, 422 (6th Cir. 2010). We

apply “a deferential standard to the Commission’s factual determinations.” Id. “The findings of

the Commission with respect to questions of fact, if supported by substantial evidence on the

record considered as a whole, shall be conclusive.”        30 U.S.C. § 816(a)(1).      “Substantial

evidence is determined by evaluating whether there is such relevant evidence as a reasonable

mind might accept as adequate to support the Commission's conclusion.” Pendley, 601 F.3d at

422–423 (quoting Nat’l Cement Co. v. Fed. Mine Safety & Health Review Comm’n, 27 F.3d 526,

530 (11th Cir. 1994)). “Questions of law are reviewed de novo.” N. Fork Coal Corp. v. Fed.

Mine Safety & Health Review Comm’n, 691 F.3d 735, 739 (6th Cir. 2012) (citing Pendley, 601

F.3d at 423).




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No. 16-3848, Hopkins Cty. Coal v. Sec’y of Labor, et al.


        a. The Secretary’s request for personnel files during its investigation of Gatlin’s
           discrimination complaint was authorized under the Mine Act

        HCC claims that the Secretary exceeded his authority under the Mine Act by demanding

production of employee personnel files without first providing the operator with any factual basis

for a prima facie discrimination claim. Three statutory provisions define the disputed scope of

the Secretary’s power under the Act.          First, the Secretary’s general authority to conduct

investigations under the Mine Act is provided by § 103(a). Second, the Secretary’s authority to

request records and other information from operators derives from § 103(h).              Third, the

Secretary’s specific authority to investigate employee discrimination complaints flows from

§ 105(c)(2). No provision of the Mine Act requires an operator to maintain personnel files.

        The “first step in interpreting a statute is to determine whether the language at issue has a

plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v.

Shell Oil Co., 519 U.S. 337, 340 (1997). The “inquiry must cease if the statutory language is

unambiguous and ‘the statutory scheme is coherent and consistent.’” Id. (quoting United States

v. Ron Pair Enters., Inc., 489 U.S. 235, 240 (1989)).

            1. The Secretary did not exceed his authority to investigate a discrimination
               claim under the Mine Act by requesting the production of company
               personnel files that were not required to be kept under the Act

        HCC first contends that the Secretary may not demand production of private company

personnel files because operators are not required to keep those records under the Mine Act. The

Commission rejected this argument, holding that “section 103(h) broadly authorizes the

Secretary to request access to personnel records not specifically required to be kept by operators,

as long as the records are ‘reasonably required’ to allow the Secretary to perform his function of

investigating complaints of discrimination made pursuant to section 105(c) of the Mine Act.”

Hopkins Cty. Coal, 38 FMSHRC at 1327. HCC does not point to any portion of the statute that



                                                    8
No. 16-3848, Hopkins Cty. Coal v. Sec’y of Labor, et al.


limits the scope of the Secretary’s right to seek such non-compulsory company records. Further,

HCC fails to cite any case law suggesting an alternative reading to the position taken by the

Secretary and the Commission.

        Rather, § 103(h) states that:

        [i]n addition to such records as are specifically required by this chapter, every
        operator of a coal or other mine shall establish and maintain such records, make
        such reports, and provide such information, as the Secretary . . . may reasonably
        require from time to time to enable him to perform his functions under this
        chapter.

30 U.S.C. § 813(h) (emphasis added). This provision expressly places a duty on operators to

provide records, reports, and information to the Secretary during the performance of his

“functions” under the Mine Act. Further, the “in addition to” clause in § 103(h) plainly means

that operators are under a duty to provide information to the Secretary beyond such records that

are expressly required to be kept under the Mine Act. See Sec’y of Labor v. BHP Copper, Inc.,

21 FMSHRC 758, 765 (July 1999) (“[n]othing in section 103(a) or any other provision of the

Mine Act limits the Secretary's investigative powers to such [required] information”). Therefore,

§ 103(h) unambiguously grants the Secretary the right to company records “in addition to” those

required under the Mine Act so long as the records are “reasonably required” by the Secretary

“to perform his functions.”9

        Because it is undisputed that one of the “functions” of the Secretary under the Mine Act

is to evaluate and investigate discrimination complaints in accordance with § 105(c)(2), the




        9
           This reading of § 103(h) is consistent with those of our sister circuits. The Seventh Circuit rejected a
similar argument to the one raised here by HCC, finding that “section [103](h) unambiguously requires mines to
provide MSHA with records, reports, and information beyond what mines are otherwise required to maintain.” Big
Ridge, Inc. v. Fed. Mine Safety & Health Review Comm'n, 715 F.3d 631, 641 (7th Cir. 2013). Similarly, the D.C.
Circuit recognized that § 103(h) “contains little limitation on the type of information to be provided.” Energy W.
Min. Co. v. Fed. Mine Safety & Health Review Comm'n, 40 F.3d 457, 461 (D.C. Cir. 1994) (internal citation and
quotation omitted).


                                                        9
No. 16-3848, Hopkins Cty. Coal v. Sec’y of Labor, et al.


Secretary did not exceed his authority by demanding personnel files from HCC even though

those records were not required to be kept under the statute. See 30 U.S.C. 815(c)(2).

            2. The Secretary did not exceed his authority under the Mine Act by requesting
               company personnel files merely because he failed to articulate a factual basis
               for a prima facie claim of discrimination to the mine operator

        The Mine Act requires that, “[n]o person shall discharge or in any manner discriminate

against . . . any miner . . . because of the exercise by such miner . . . of any statutory right

afforded by [the Act].” 30 U.S.C. § 815(c)(1). A prima facie claim of discrimination under the

Mine Act requires (1) a protected activity, and (2) an adverse action that was motivated in any

part by the protected activity. Pendley, 601 F.3d at 423; Sec’y of Labor on behalf of Pasula v.

Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980). Since the beginning of this

dispute, HCC has been unwavering in its insistence that “without a protected activity . . . there

can be no possibility of any viable discrimination claim.” Thus, HCC argues that the Secretary

exceeded his authority by demanding personnel files in this case because “at the time th[e]

demand was sent, MSHA could not identify whether any protected activity had been alleged.”

However, even assuming arguendo that the MSHA was required to develop a reasonable factual

basis for a discrimination claim prior to making a request for documents as part of a

discrimination investigation, the MSHA had reason to believe that Gatlin engaged in a protected

activity during this particular investigation. The Commission found as a matter of fact that

MSHA Inspector Smith had “determined that Gatlin may have engaged in protected activity and

may have suffered an adverse action” prior to making the request for personnel files. Hopkins

Cty. Coal, 38 FMSHRC at 1318; see also id. at 1325.

        Because we review factual findings of the Commission under the substantial evidence

standard, we must defer to the Commission’s finding that Smith believed that Gatlin may have



                                                   10
No. 16-3848, Hopkins Cty. Coal v. Sec’y of Labor, et al.


engaged in a protected activity so long as “there is such relevant evidence as a reasonable mind

might accept as adequate to support the Commission’s conclusion.” Pendley, 601 F.3d at 422–

423 (quoting Nat'l Cement Co. v. Fed. Mine Safety & Health Review Comm'n, 27 F.3d 526, 530

(11th Cir. 1994)). Here, the record contains evidence that Gatlin may have engaged in the

following protected activities prior to his termination: (1) HCC instructed Gatlin to fix, repair, or

correct an unsafe condition in the mine in lieu of recording each potential safety violation;

(2) Gatlin was so overburdened with job duties in the mine that he didn’t have sufficient time to

correct the unsafe conditions he discovered; and (3) Gatlin may have been reporting an increased

number of hazardous conditions to management in his pre-shift and on-shift book.10 Smith’s

testimony about Gatlin’s case is relevant evidence that would allow a reasonable mind to accept

the Commission’s factual determination. Thus, we must defer to the Commission’s finding that

Smith recommended the requests for the personnel files only after he had a reasonable basis for

believing that Gatlin engaged in a protected activity under the Mine Act prior to his

termination.11      Therefore, HCC’s argument that there was “no possibility of any viable

discrimination claim” is not supported by the record, and the Secretary did not exceed his

authority by requesting the personnel files at issue in this case.

        Despite the factual findings of the Commission, HCC argues that the Secretary

nonetheless exceeded his authority because “the Government has a burden to articulate a

reasonable basis” for a record demand under § 103(h) “in the absence of a cognizable

discrimination claim under the Mine Act.”                  However, as stated, there was a cognizable


        10
            Furthermore, Gatlin’s job as a belt examiner was intimately related to the health and safety of the Mine.
See, e.g., Requirements for Belt Examiner, 805 Ky. Admin. Regs. 7:100 (Kentucky mine regulation requiring safety
training and a written examination in order to become a belt examiner).
        11
          We make no holding in regard to whether, or to what extent, the Secretary is required by the Mine Act to
develop a reasonable factual basis for believing that a protected activity may have occurred prior to requesting
documents from an operator under § 103(h) of the Mine Act.


                                                        11
No. 16-3848, Hopkins Cty. Coal v. Sec’y of Labor, et al.


discrimination claim in this case, and the facts presented here could not be applied to support

HCC’s own legal theory. HCC essentially asks this Court to apply a pleading standard to a

miner’s initiating complaint with the Commission. However, there is no language in the Mine

Act or case law that would support placing a pleading burden on the Secretary to justify record

requests under § 103(h) to mine operators as a prerequisite to his statutory right to request and

obtain certain documents pursuant to a discrimination investigation.          Rather, even a post-

investigation discrimination complaint formally filed with the Commission is held to a

“minimal” pleading standard and need not substantiate a prima facie case. See 29 C.F.R.

§ 2700.42 (“[a] discrimination complaint shall include a short and plain statement of the facts,

setting forth the alleged discharge, discrimination or interference, and a statement of the relief

requested”); see also Perry v. Phelps Dodge Morenci, Inc., 18 FMSHRC 1918, 1921 (Nov.

1996) (complainant under Mine Act is not obligated “to begin proving his prima facie case” but

is “simply obligated to meet the Commission's minimal pleading requirements”). In light of the

“minimal” pleading requirements of formal, post-investigation complaints filed with the

Commission, it would be inconsistent with the statutory scheme to adopt HCC’s interpretation

and require the Secretary to articulate a factual basis for a prima facie claim to a mine operator at

the pre-investigation stage as a prerequisite to making record requests under § 103(h). See 29

C.F.R. § 2700.40(a).

        Despite refusing to divulge a specific protected activity to the operator at the pre-

investigation stage, the Secretary complied with his duty under the Mine Act to notify HCC

about Gatlin’s discrimination complaint when the MSHA forwarded a copy of Gatlin’s

complaint to HCC with a cover letter that notified HCC that an investigator had been assigned to

the case. See 30 U.S.C. 815(c)(2). HCC’s argument is therefore without merit under these facts.




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No. 16-3848, Hopkins Cty. Coal v. Sec’y of Labor, et al.


            3. The requested personnel files were “reasonably required” by the Secretary in
               order to investigate Gatlin’s discrimination complaint

        The proper question when analyzing whether the Secretary exceeded his authority to

request documents under § 103(h) of the Mine Act is whether the record request was “reasonably

required” by the Secretary in order to perform his functions. The Mine Act provides that “every

operator of a coal or other mine shall . . . make such reports, and provide such information, as the

Secretary . . . may reasonably require from time to time to enable him to perform his functions

under [the Mine Act].” 30 U.S.C. § 813(h) (emphasis added). Here, the Commission held that

the requested personnel files were reasonably required by the Secretary because “records that

tend to establish or disprove an element of a prima facie case of discrimination generally are . . .

reasonably required to enable the Secretary to perform his investigative function under section

105(c) of the Mine Act.” Hopkins Cty. Coal, 38 FMSHRC at 1329. HCC challenges the

Secretary’s authority to request the personnel files on the basis that they were not “reasonably

required” because they were not relevant and that the requests were part of an overbroad and

sweeping records demand.

        HCC states that the personnel files “would not have shed any light on MSHA’s quest to

uncover some unalleged protected activity upon which to manufacture a new claim for Gatlin.”

Regarding Gatlin’s personnel file, the Commission found that it was relevant, citing Smith’s

testimony that Gatlin’s work history, prior workplace discipline, and other information contained

in the personnel files would be relevant to corroborate or disprove Gatlin’s discrimination claim.

Id. This conclusion is sound because a claimant’s own personnel file can tend to prove or

disprove the credibility of a discrimination claim. See, e.g., Ross v. William Beaumont Hosp.,

678 F. Supp. 655, 661, n.12 (E.D. Mich. 1988) (plaintiff’s own personnel file used to prove that

her misconduct, not discrimination by the employer, was the reason for her termination).


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No. 16-3848, Hopkins Cty. Coal v. Sec’y of Labor, et al.


        With respect to the files of the comparators, the Commission found that these documents

were “critical aids” in determining disparate treatment. Hopkins Cty. Coal, 38 FMSHRC at

1329. Indeed, disparate treatment is one of the commonly-used methods for proving a causal

connection between a protected activity and an adverse action under the Mine Act.               See

Cumberland River Coal Co. v. Fed. Mine Safety & Health Review Comm’n, 712 F.3d 311, 318

(6th Cir. 2013). If the comparator files revealed that HCC had disciplined other employees who

engaged in the same conduct as Gatlin, but were not terminated, or were otherwise treated more

leniently, the Secretary would have indirect evidence of causation to support a discrimination

claim. See Hollins v. Atl. Co., 188 F.3d 652, 660 (6th Cir. 1999).

        Further, obtaining personnel files to prove certain elements of discrimination is both

common and relevant under a variety of legal theories. E.g., Parrish v. Ford Motor Co.,

953 F.2d 1384 (6th Cir. 1992) (table) (“access to the personnel files of the eight individuals

promoted . . . in order to discover at a minimum their ages and qualifications, is clearly necessary

for [claimant] to establish a prima facie case of discrimination”); Savage v. City of Lewisburg,

Tenn., No. 1:10-0120, 2014 WL 4979308, at *7 (M.D. Tenn. Oct. 6, 2014) (personnel file of co-

worker who also reported sex discrimination at least reasonably likely to yield relevant

evidence); E.E.O.C. v. Avco New Idea Div., 26 Fed. R. Serv. 2d 736, *4 (N.D. Ohio 1978)

(supervisors’ personnel files “might reasonably be expected to yield probative evidence of

plaintiff's claims”). Therefore, the personnel files requested by the MSHA were relevant to the

Secretary’s investigation of Gatlin’s discrimination complaint.

        From the beginning of this litigation, HCC has argued that the MSHA was engaged in a

“fishing expedition” and that the requests were “sweeping records demands” that give MSHA

field investigators “unfettered discretion” to obtain access to a virtually unlimited array of




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No. 16-3848, Hopkins Cty. Coal v. Sec’y of Labor, et al.


internal company documents. However, this assertion is not supported by the record. The six

record requests were limited in time frame and scope, based on information learned by the

MSHA from Gatlin’s initial complaint or its post-complaint interview of Gatlin, and were all

related to either the prima facie elements of a discrimination claim under the Mine Act or the

credibility of Gatlin’s allegations. Additionally, the request to obtain personnel files was only

made after the MSHA was denied the right to interview five of HCC’s managerial employees

who may have had knowledge of the circumstances surrounding Gatlin’s termination. The

Commission also found that it only took HCC “a few hours” to produce the requested personnel

files. Hopkins Cty. Coal, 38 FMSHRC at 1329. Furthermore, the requests were not made on site

at the whim of a field investigator, and the record indicates that Smith was required to get

approval from district manager Boone prior to making the record demands in question. Thus, the

record does not support HCC’s claim that the MSHA’s request for personnel files was overly

broad or left unfettered discretion to investigators.

        Given that the Secretary ultimately declined to file a formal complaint against HCC

following its investigation, HCC may very well be correct in its assertion that Gatlin did not

engage in a protected activity or have a valid discrimination claim. However, the question in this

case was never whether Gatlin’s discrimination claim had sufficient merit to warrant the

Secretary’s filing of a complaint with the Commission. Rather, the question is whether or not the

requested personnel files were reasonably required by the Secretary in order to investigate

whether Gatlin’s claim could have sufficient merit to file a complaint on his behalf with the

Commission. See Sec’y of Labor v. Pontiki Coal Corp., 19 FMSHRC 1009, 1017, (June 1997)

(“it is the scope of the Secretary's investigation, rather than the initiating complaint, that governs

the permissible ambit of the complaint filed with the Commission”). Here, the Secretary’s




                                                   15
No. 16-3848, Hopkins Cty. Coal v. Sec’y of Labor, et al.


requests for certain HCC personnel files were reasonably required in order to investigate the

merits and credibility of Gatlin’s discrimination complaint under the Mine Act.

        b. The Secretary’s request for personnel files under § 103(h) of the Mine Act did
           not violate HCC’s Fourth Amendment rights

        Under the Fourth Amendment, “[t]he businessman, like the occupant of a residence, has a

constitutional right to go about his business free from unreasonable official entries upon his

private commercial property.” Marshall v. Barlow's, Inc., 436 U.S. 307, 312 (1978). “However,

unlike searches of private homes, which generally must be conducted pursuant to a warrant in

order to be reasonable under the Fourth Amendment, legislative schemes authorizing warrantless

administrative searches of commercial property do not necessarily violate the Fourth

Amendment.” Donovan, 452 U.S. at 598. Fourth Amendment jurisprudence recognizes an

exception that dispenses the warrant requirement “in cases involving ‘closely regulated’

industries, where . . . the commercial operator’s privacy interest is adequately protected by

detailed regulatory schemes authorizing warrantless inspections.” N.Y. v. Burger, 482 U.S. 691,

719 (1987); see, e.g., Donovan v. Dewey, 452 U.S. 594 (1981) (coal mining); United States v.

Biswell, 406 U.S. 311 (1972) (firearms); Colonnade Catering Corp. v. United States, 397 U.S. 72

(1970) (liquor); United States v. Acklen, 690 F.2d 70 (6th Cir. 1982) (pharmacies). It is well-

established that coal mining is a pervasively regulated industry, and that the “owner of such a

facility cannot help but be aware that he ‘will be subject to effective inspection.’” Donovan,

452 U.S. at 603 (quoting Biswell, 406 U.S. at 316); see Burger, 482 U.S. at 719; see also United

States v. Blue Diamond Coal Co., 667 F.2d 510, 520 (6th Cir. 1981).

        The Commission rejected HCC’s argument that the MSHA requests to inspect company

personnel files violated its Fourth Amendment rights, holding inter alia that the inspection by the

MSHA was reasonable under Donovan. Hopkins Cty. Coal, 38 FMSHRC at 1332. In Donovan,



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No. 16-3848, Hopkins Cty. Coal v. Sec’y of Labor, et al.


the Supreme Court upheld regular safety inspections under § 103(a) of the Mine Act despite the

fact that the search at issue was conducted without a warrant. Donovan, 452 U.S. at 605.

        The issue presented here is whether the Secretary’s warrantless request to inspect certain

HCC company personnel files as part of a discrimination investigation pursuant to § 105(c)(2)

was reasonable under the Fourth Amendment. In order for the warrantless inspection of a

pervasively regulated industry to be reasonable, three criteria must be met: (1) there must be a

substantial government interest that informs the regulatory scheme pursuant to which the

inspection is made; (2) the warrantless inspections must be necessary to further the regulatory

scheme; (3) the statute's inspection program, in terms of the certainty and regularity of its

application, must provide a constitutionally adequate substitute for a warrant. Burger, 482 U.S.

at 702–703 (internal citations and marks omitted).

        Just as in Donovan, the substantial government interest underlying the Mine Act is

“improving the health and safety conditions in the Nation’s . . . mines. In enacting the statute,

Congress was plainly aware that the mining industry is among the most hazardous in the country

and that the poor health and safety record of this industry has significant deleterious effects on

interstate commerce.” Donovan, 452 U.S. at 602. HCC argues that MSHA investigations into

discrimination complaints are “not related to health and safety,” and suggests that “the reason for

the mining industry’s pervasive regulation is not because of a long history of inherent problems

with discrimination.”      This argument ignores the critical fact that the Mine Act’s anti-

discrimination provision is instrumental in ensuring safe and healthy conditions in our nation’s

mines. This Court has previously stated that an important feature of the Mine Act is to prevent

“reprisal for making safety-related complaints,” and recognized that Congress included the anti-

discrimination provision “to encourage miners to play an ‘active part in the enforcement of the




                                                   17
No. 16-3848, Hopkins Cty. Coal v. Sec’y of Labor, et al.


Act’ and protect them ‘against any possible discrimination which they might suffer as a result of

their participation.’” N. Fork, 691 F.3d at 738 (quoting S.Rep. No. 95–181, at 35 (1977),

reprinted in 1977 U.S.C.C.A.N. 3401, 3435). Discrimination against any miner who reports

safety-related issues is a threat to the safety of all miners, and HCC incorrectly dissociates

discrimination with health and safety. Accordingly, we find that the same government interest

supporting the warrantless safety inspections at issue in Donovan guides the MSHA’s efforts to

investigate instances of discrimination under § 105(c)(2).

        Next, we ask whether warrantless inspections of company documents during the course

of discrimination investigations are necessary to further the regulatory scheme. The Secretary’s

general authority to conduct investigations arises under § 103(a).        This section explicitly

provides that, “[f]or the purpose of making any inspection or investigation under this [Act], the

Secretary . . . with respect to fulfilling his responsibilities under this [Act], or any authorized

representative of the Secretary . . . shall have a right of entry to, upon, or through any coal or

other mine.” 30 U.S.C. 813(a) (emphasis added). Further, the Senate Report is persuasive to

support the position that warrantless entry under § 103(a) was intended to apply equally to both

inspections and investigations under the Act by stating that, “[t]he Committee intends to grant a

broad right-of-entry to the Secretaries or their authorized representatives to make inspections and

investigations of all mines under this Act without first obtaining a warrant.” S.Rep. No. 95–181,

at 27 (1977), reprinted in 1977 U.S.C.C.A.N. 3401, 3427 (emphasis added). The Senate Report

further states that, “a warrant requirement would seriously undercut this Act’s objectives”

because “many safety or health hazards may be concealed if advance warning of inspection is

obtained.”    Id.; see also Donovan, 452 U.S. at 603.        Thus, § 103(a) intended to permit

warrantless right-of-entry to the Secretary for the purpose of both inspection and investigation,




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No. 16-3848, Hopkins Cty. Coal v. Sec’y of Labor, et al.


including the discrimination investigation undertaken by the Secretary in this case pursuant to

§ 105(c)(2). Warrantless discrimination investigations, just like the regular inspections at issue

in Donovan, are therefore necessary to the enforcement of the regulatory scheme. See Donovan,

452 U.S. at 603–604.

        Finally, we ask whether “the statute's inspection program, in terms of the certainty and

regularity of its application,” provides a constitutionally adequate substitute for a warrant.

Burger, 482 U.S. at 703. In order to comply with this standard, the statute “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.; see also

Biswell, 406 U.S. at 315 (“[i]n the context of a regulatory inspection system of business premises

that is carefully limited in time, place, and scope, the legality of the search depends not on

consent but on the authority of a valid statute”). Donovan already confirmed that § 103(a)

comports with the Fourth Amendment, and that “the Act establishes a predictable and guided

federal regulatory presence.” Donovan, 452 U.S. at 604. The anti-discrimination provision of

the Mine Act additionally defines the scope of the investigation and limits the discretion of

inspecting officers because it requires that a copy of the complaint be forwarded to the owner of

the commercial premises. 30 U.S.C. 815(c)(2).

        In this case, the MSHA forwarded a copy of Gatlin’s discrimination complaint to HCC.

Further, the MSHA disclosed in a cover letter the provision of the Mine Act under which the

investigation was authorized, § 105(c), and the MSHA provided two advanced notifications of

the date investigators would conduct a site visit. On the date of the site visit, the initial citation

for failure to provide the records stated that the request was being made pursuant to the law and

specifically noted the authority of the MSHA under § 103(a) and (h) to investigate and the obtain




                                                   19
No. 16-3848, Hopkins Cty. Coal v. Sec’y of Labor, et al.


information from HCC. Altogether, these sufficiently placed HCC on notice that the search was

requested pursuant to law and limited the scope of the search to investigating a specific

discrimination complaint.

        Additionally, HCC’s argument that the MSHA field investigators had “unbridled

discretion” to request and obtain documents is not supported by the record. Prior to making any

requests under § 103(h), MSHA Investigator Smith sought the approval and signature of MSHA

District Manager Boone. This shows that the search at issue in this case was not made at the

“unbridled discretion” of an agent in the field, as HCC claims. Rather, the document request

came after a deliberative internal process within the agency, and the request notified HCC of the

individual whose complaint was being investigated and the specific information and

documentation that was being sought as part of that specific discrimination investigation.

        Furthermore, as Donovan determined, “the Act provides a specific mechanism for

accommodating any special privacy concerns that a specific mine operator might have” and the

discretion of government officials is “directly curtailed by the regulatory scheme.” Donovan,

452 U.S. at 604–605. For example, in the context of the citations issued by the MSHA for

HCC’s failure to comply with the document requests in this case, “the Secretary’s penalty

assessments bec[a]me final and payable only after full review by both the Commission and the

appropriate court of appeals.” Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 218 (1994)

(citing 30 U.S.C. §§ 820(i) and 816). Thus, HCC’s initial refusal to comply with the document

requests did not require it to pay the fines until after HCC was afforded multiple opportunities to

review the legality of the document requests made by the MSHA. Therefore, the warrantless

document requests made in this case pursuant to § 103(h) sufficiently limited the discretion of




                                                   20
No. 16-3848, Hopkins Cty. Coal v. Sec’y of Labor, et al.


the field officer seeking to conduct the inspection of the records and provided a constitutionally

adequate substitute for a warrant. The search was thus reasonable under the Fourth Amendment.

        To be clear, we do not hold that mine operators must blindly comply with every

administrative request to inspect private company records, no matter how hobbled the operator is

in determining the legal validity of the request. Nor do we hold that every request for private

company documents by the MSHA comports with the Fourth Amendment merely because a

vague discrimination complaint was filed by a miner. However, in the circumstances presented

here, HCC had sufficient information to assess the legality of the document requests at issue.

HCC had ample advance notice of precisely which records the MSHA would inspect, it knew the

date, time, and location of the requested inspection, it knew the specific identity of the

complaining miner, and it knew that the discrimination investigation would seek to determine

whether that miner engaged in a safety-related protected activity because the complaint was filed

pursuant to the Mine Act—even though HCC did not know what the specific safety-related

protected activity was. This is roughly equivalent to what HCC could have learned through

notice of the contents of Gatlin’s post-complaint interview with the MSHA. While there is no

apparent reason for MSHA to refuse to give HCC some indication of the interview’s gloss on the

miner=s written complaint, in this case that failure was not a sufficient justification for refusing to

comply with the request.

        HCC’s Fourth Amendment argument relies primarily on this Court’s decision in Kings

Island. There, we held that “[a]n employer may not be threatened with a penalty for asserting his

Fourth Amendment rights.” McLaughlin v. Kings Island, Div. of Taft Broad. Co., 849 F.2d 990,

997 (6th Cir. 1988). Kings Island invalidated an OSHA regulation that presumptively allowed

OSHA field investigators to demand and inspect records without a warrant or an administrative




                                                   21
No. 16-3848, Hopkins Cty. Coal v. Sec’y of Labor, et al.


subpoena. Id. However, the holding in Kings Island was premised on the fact that no Fourth

Amendment exception to the warrant requirement existed in that case, and the court specifically

recognized that coal mining was such a pervasively regulated industry that does fit into an

exception. Id. at 995 (citing United States v. Blue Diamond Coal Co., 667 F.2d 510 (6th Cir.

1981)). Additionally, the reviewing commission in Kings Island held that coal mining cases

were inapplicable to its Fourth Amendment analysis. The OSHA Review Commission stated

that, “the Supreme Court has clearly indicated that cases under this separate and distinct branch

of the Fourth Amendment case law, [pervasively regulated industries], have little relevance to

OSHA Act inspection issues.” Sec’y of Labor v. Kings Island, Div. of Taft Broad. Co., No. 82-

1016, 1987 WL 89084, at *6 (O.S.H.R.C.) (citing Marshall v. Barlow's, Inc., 436 U.S. 307, 313–

314 (1978) and Donovan, 452 U.S. at 599–605)). Because the inspection at issue in Kings Island

did not involve a pervasively regulated industry, the holding in Kings Island is inapplicable.

        To the extent that HCC is arguing that the rationale in our Kings Island decision might be

extended to cases involving the coal industry under certain, limited circumstances, this case is

factually distinguishable from Kings Island. There, an OSHA investigator entered a theme park

without prior warning to investigate an employee health complaint alleging that the use of fog

during theatrical performances caused irritation to the employees’ eyes and upper respiratory

systems. Kings Island, 849 F.2d at 991–992. During the inspection, the OSHA investigator,

without any other purpose than to investigate the complaint about the fog, demanded to inspect

three years of records relating to all reportable occupational injuries and illnesses at the facility.

Id. at 992. The stated purpose for inspecting these records was to conduct a general search into

any hygienic and environmental problems at the theme park. Id. This Court summarized the

incident as “an unannounced inspection accompanied by an arbitrary and discretionary demand




                                                   22
No. 16-3848, Hopkins Cty. Coal v. Sec’y of Labor, et al.


to inspect company records not only as they relate to a specific complaint, but for hygienic and

environmental problems in general.” Id. at 995.

        This case contains none of the aggravating factors present in Kings Island. First, the

MSHA inspection on March 23, 2009 was anything but unannounced. Three months prior to the

site visit, on January 20, 2009, the MSHA sent HCC a notification that a discrimination

complaint had been filed by Gatlin. Thereafter, MSHA district manager Boone and HCC

exchanged eight letters, two of which provided specific notification to HCC that MSHA

investigators would be arriving at the Mine on March 23, 2009 to investigate Gatlin’s complaint.

Second, the demands to inspect company records were not arbitrary or discretionary. Prior to

making the record demands, Smith forwarded his investigatory findings to Boone. Boone then

signed and sent the requests to HCC, and no additional requests for records were made. Third,

each of the requests related to specific facts and allegations brought to Smith’s attention in his

complaint and during his interview with Gatlin, and therefore did not expand from the complaint

at issue into an entirely new field of investigation without any institutional check on the authority

of the field investigator, as was the case in Kings Island. Therefore, even if Kings Island were

applicable to the analysis here, this case is distinguishable because the record requests by the

MSHA were (1) announced well in advance, (2) not arbitrary, (3) not left to the complete

discretion of the field investigator, and (4) not extended beyond the scope of investigating

Gatlin’s claims.

        Accordingly, we hold that the § 103(h) requests in this case were sufficiently limited in

time, place, and scope as part of the Mine Act’s regulatory inspection system for conducting

discrimination investigations and did not violate HCC’s Fourth Amendment rights. See Biswell,

406 U.S. at 315.




                                                   23
No. 16-3848, Hopkins Cty. Coal v. Sec’y of Labor, et al.


                                                 IV.

        For the foregoing reasons, we AFFIRM the decision of the Commission and hold that

the Secretary’s request for personnel files as part of his discrimination investigation was

authorized by the Mine Act and did not violate HCC’s Fourth Amendment rights.




                                                   24
No. 16-3848, Hopkins Cty. Coal v. Sec’y of Labor, et al.


        KETHLEDGE, Circuit Judge, dissenting. The question here is whether MSHA has

authority to investigate a miner’s complaint when the complaint fails to allege discrimination in

violation of the Mine Act.        The Act provides that a miner who thinks his employer has

discriminated against him in violation of the Act may file a complaint “alleging such

discrimination.” 30 U.S.C. § 815(c)(2). “Upon receipt of such complaint,” MSHA “shall” then

“cause such investigation to be made as [it] deems appropriate.” Id. Here, an MSHA complaint-

processor took down Gatlin’s story and then reduced it to a written complaint. Yet, as the

Commission itself found, Gatlin’s complaint still did not allege any discrimination in violation of

the Act. See Sec’y of Labor v. Hopkins Cty. Coal, LLC, 38 FMSHRC 1317, 1318 (June 2016).

MSHA therefore lacked any basis to require Hopkins to produce its personnel records.

        Moreover, when MSHA does receive a complaint alleging discrimination in violation of

the Act, the Act requires MSHA to forward a copy of that complaint to the respondent.

30 U.S.C. § 815(c)(2). This requirement’s manifest purpose is to provide the operator with

notice of its alleged violation of the Act before MSHA begins engaging in conduct that

resembles a Fourth Amendment search. Absent such notice, an operator is hard-pressed to

determine whether a request for documents by MSHA is lawful under the Act.

        Hopkins had no such notice here, which left it to guess whether MSHA’s request for

volumes of its records was lawful. And a wrong guess would expose Hopkins to fines of up to

$5,000 per day. See 30 U.S.C. §§ 814, 820. I therefore agree with the dissenting commissioners

that, “[w]hen there is not even a claim of protected activity or adverse action based on protected

activity by the miner or MSHA, a request for five years of personnel records is a fishing

expedition not authorized by the statute as a reasonable request.” Hopkins Cty. Coal, LLC,

38 FMSHRC at 1347.




                                                   25
No. 16-3848, Hopkins Cty. Coal v. Sec’y of Labor, et al.


        I respectfully dissent.




                                                   26
