United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 24, 2019              Decided January 7, 2020

                         No. 18-1296

 WESTERN OILFIELDS SUPPLY COMPANY, DOING BUSINESS AS
                    RAIN FOR RENT,
                     PETITIONER

                              v.

   SECRETARY OF LABOR AND FEDERAL MINE SAFETY AND
             HEALTH REVIEW COMMISSION,
                    RESPONDENTS


        On Petition for Review of a Decision of the
    Federal Mine Safety and Health Review Commission


       Byron J. Walker argued the cause for petitioner. With
him on the briefs was Tim Boe.

       Daniel Colbert, Attorney, U.S. Department of Labor,
argued the cause for respondents. With him on the brief was Ali
A. Beydoun, Counsel, Appellate Litigation. John T. Sullivan,
Attorney, Mine Safety and Health Review Commission, and
Andrew R. Tardiff, Attorney, U.S. Department of Labor, entered
appearances.

       Before: GARLAND, Chief Judge, SRINIVASAN, Circuit
Judge, and EDWARDS, Senior Circuit Judge.
                              -2-

    Opinion for the Court filed by Chief Judge GARLAND.

     GARLAND, Chief Judge: Petitioner Western Oilfields
Supply Co., doing business as Rain for Rent, mounts ambitious
statutory and constitutional challenges to a $116 fine under the
Federal Mine Safety and Health Act of 1977. We deny the
petition for review, taking the opportunity to clear up some
confusion about the rights the Act grants mine operators.

                                I

     Under the Mine Act, the Secretary of Labor is responsible
for setting health and safety standards to govern the nation’s
mines and mine operators. 30 U.S.C. §§ 803, 811. An
“operator” is defined to include “any owner . . . or other person
who operates . . . a . . . mine or any independent contractor
performing services . . . at such mine.” 30 U.S.C. § 802(d). The
Act requires the Secretary to make frequent inspections each
year, without advance notice, id. § 813(a), and authorizes the
Secretary to do so without a warrant, see Donovan v. Dewey,
452 U.S. 594, 596 (1981). On the ground, the Secretary’s
responsibilities are carried out by the Mine Safety and Health
Administration (MSHA). 29 U.S.C. § 557a. If an owner or
operator violates a health or safety standard, a MSHA inspector
may issue a citation. 30 U.S.C. § 814(a). The cited party may
then challenge that citation before an administrative law judge
(ALJ), see id. § 815(d); before the Federal Mine Safety and
Health Review Commission, in the Commission’s discretion, id.
§ 823(d)(2); and ultimately before this court (or the court of
appeals for the circuit in which the violation is alleged to have
occurred), id. § 816(a)(1).

    Our cited party, Rain for Rent, rents pumps for use in
mines. Those pumps require maintenance, which it also
provides. On February 8, 2017, Rain for Rent employee Jaime
                                  -3-

Tejeda drove a company truck to a quarry operated by Lhoist
North America of Arizona, Inc., to perform maintenance on a
pump that he had previously installed. After parking the truck,
Tejeda went into the mine office to sign in for the day’s work.

     At that same moment, a MSHA inspector was waiting in the
parking lot to meet mine representatives for the second day of an
11-day routine inspection. Seeing the truck rock back and forth,
the inspector suspected that Tejeda had neglected to set the
parking brake, a violation of a safety standard governing
unattended vehicles. See 30 C.F.R. § 56.14207. The inspector
walked over to the truck and tried to spot the state of the parking
brake through the window. When that failed, he opened the
door. As he suspected, the parking brake was not set. When
Tejeda returned to his truck, he found the inspector
photographing the brake and, after a brief exchange, was
presented with a citation.

    Rain for Rent unsuccessfully raised a storm of objections to
the citation in a hearing before an ALJ. The Commission
declined to exercise discretionary review, and the ALJ’s
decision therefore became the final decision of the Commission.
See 30 U.S.C. § 823(d)(1); Commission Notice (J.A. 123).
Thereafter, Rain for Rent petitioned for our review.

                                   II

     In this court, Rain for Rent has raised only three objections
to the Commission’s decision.1 We consider them below,


     1
       In particular, Rain for Rent no longer argues that the parking lot
was not part of the “mine” within the meaning of the Mine Act, see
Sec’y of Labor v. Rain for Rent, 40 FMSHRC 1267, 1270-72 (2018)
(ALJ), that the truck was not “unattended” while Tejeda was signing
in, id. at 1280, or that the violation was neither as negligent nor as
                                 -4-

“review[ing] the Commission’s legal conclusions de novo, and
its findings of fact for substantial evidence.” Sec’y of Labor v.
Keystone Coal Mining Corp., 151 F.3d 1096, 1099 (D.C. Cir.
1998) (citation omitted).

                                  A

     First, Rain for Rent maintains that its employee was not
within the jurisdiction of the Mine Act at the moment the
citation was issued.2 The Act provides that “each operator of [a]
mine . . . shall be subject to the provisions of” the Act, 30 U.S.C.
§ 803, and defines an “operator” to include “any independent
contractor performing services or construction at such mine,” id.
§ 802(d). Rain for Rent “does not contest that it was an
independent contractor for purposes of this proceeding,” Pet’r
Br. 41, and stipulated before the ALJ that it had “provided
services” to Lhoist, see Rain for Rent, 40 FMSHRC at 1268.
But it insists that it was not “performing services” because
Tejeda had not yet signed in with the mine office for the day.

    We have not had occasion to address what the words
“performing services” mean in isolation,3 and the Secretary’s


grave as the inspector determined, id. at 1280-81.
     2
       Or the moment the violation came into being, or the moment the
inspection took place -- Rain for Rent is not consistent on this point.
Compare Pet’r Br. 41 (measuring jurisdiction “at the time the MSHA
inspector cited the alleged violation”), with id. at 42 (measuring
jurisdiction “at the time an alleged violation occurs”), and id. at 12
(measuring jurisdiction “[a]t the time the MSHA inspector observed
the subject of the Citation”). Those distinctions do not matter here.
     3
      We disagree with the Secretary’s suggestion that our precedent
resolves this case. The Secretary relies in part on a snippet from DQ
Fire & Explosion Consultants, Inc. v. Secretary of Labor, in which we
                                   -5-

regulations only define the term “independent contractor,” not
the phrase “independent contractor performing services.” See
30 C.F.R. § 45.2(c). Rain for Rent maintains that, “[b]y its
tense, ‘performing services’ . . . denotes present, ongoing work.”
Pet’r Br. 42. Assuming without deciding that Rain for Rent is
correct about this, the undisputed record nonetheless shows that
Rain for Rent was performing ongoing services for the mine
operator, Lhoist. Under the Mine Act, the requirement is that
the contractor -- not the particular employee on whom the
citation is served -- be engaged in work at the mine. And Rain
for Rent was.

     The ALJ found as follows:

          Prior to the inspection at issue, Lhoist contracted with
          Rain for Rent . . . to pump an accumulation of
          rainwater out of the quarry pit. Rain for Rent
          employee Jaime Tejeda . . . visited the mine site
          several times to install the pump, perform maintenance



affirmed a citation despite the petitioner’s contention “that it is not an
operator under the Mine Act because, on the days in question, it was
not performing the type of ‘services’ covered by the statute.” 632 F.
App’x 622, 624 (D.C. Cir. 2015). But that petitioner had not made --
and we were not purporting to respond to -- a temporal argument.
Instead, the question was whether the services at issue were
sufficiently related to mining. The Secretary also relies on Otis
Elevator Co. v. Secretary of Labor, in which we rejected an argument
that some independent contractors who perform services nevertheless
are not operators because they do not perform the right kind of
services. 921 F.2d 1285, 1289-91 (D.C. Cir. 1990). Again, we did not
purport to address the independent meaning (if any) of “performing
services,” or else we would have had no reason to wonder whether we
could grant deference to regulations that did not define the term. Id.
at 1288 (citing 30 C.F.R. § 45.2(c)).
                                -6-

         and repairs, and replace the original pump with a larger
         model.

Rain for Rent, 40 FMSHRC at 1268 (citation omitted). Indeed,
Tejeda had previously “[driven] the cited truck onto mine
property on multiple occasions” to perform the “same services”
he was there to perform on the day of the citation. Id. at 1273.
And Rain for Rent’s rented pump (although still in need of
repair) was on-site providing the contractor’s continuing service
when the events at issue here unfolded. There is therefore no
question that, as the ALJ found, “Rain for Rent was performing
pumping services for Lhoist” at the time of the inspection. Id.
at 1274.

     Even if we were to narrow our focus to the individual
employee, we would come to the same conclusion. Rain for
Rent hangs everything on the fact that Tejeda had not yet signed
in: It no longer denies, as it did before the ALJ, that Tejeda was
already within the boundaries of a “mine” when he parked the
truck. See id. at 1270-72. Nor does it go so far as to argue that
Mine Act jurisdiction did not attach until Tejeda actually
touched the pump. See Recording of Oral Arg. at 19:40-19:45.
Yet, it offers nothing that would distinguish between the walk
from truck to office and the walk from office to pump. During
each trip, Tejeda was on-site to execute his responsibilities
under a contract for services. As the ALJ put it, “Tejeda’s work
on behalf of Rain for Rent entailed entering the Plant office to
sign in and make his presence known on the site.” 40 FMSHRC
at 1274 (emphasis added).

                                 B

    We turn next to Rain for Rent’s argument that the
inspection violated section 103(f) of the Mine Act. That section
provides that “a representative of the operator . . . shall be given
                                -7-

an opportunity to accompany the Secretary or his authorized
representative during the physical inspection of any coal or other
mine . . . for the purpose of aiding such inspection and to
participate in pre- or post-inspection conferences held at the
mine.” 30 U.S.C. § 813(f). Because Tejeda missed the first few
minutes of the inspection of his truck, Rain for Rent argues, this
“walkaround” right was violated. And while Rain for Rent
maintains that the violation, standing alone, merits automatic
vacatur of the citation, it also argues that the violation
prejudiced its defense to the citation and warrants vacatur (or at
least suppression of the evidence) on that ground as well. In
particular, Petitioner says, it missed out on its right to refuse the
inspection and mount its jurisdictional defense -- its claim about
the meaning of “performing services” -- before the search began.

     1. Like the ALJ, we do not see a violation. As section
103(f) states, the walkaround right is extended “for the purpose
of aiding [the] inspection.” Id. In other words, the provision
gives an operator a chance to provide information that might be
mitigating or material -- to argue, for instance, that the brake
was in fact set, or that the inspector had misunderstood how it
worked. See Big Ridge, Inc. v. Sec’y of Labor, 36 FMSHRC
1677, 1735 (2014) (ALJ) (explaining that the representative’s
role is to “point out hazards, offer justifications, proffer
mitigating circumstances, and collect evidence that may support
a perspective contrary to the inspector’s view at hearing”). But
Rain for Rent was not denied that chance because Tejeda
returned while the condition of the brake was still plain to see
and had an opportunity to say whatever he wanted to the
inspector. Rain for Rent points to nothing that it would have
done differently if its employee had been present before the door
was opened -- other than refuse the inspection entirely.

     The problem for Rain for Rent is that the statute does not
create such a “right to refuse.” Certainly no such right appears
                                -8-

on the face of the Act. To the contrary, section 103(a) of the Act
grants the Secretary a “right of entry to, upon, or through any
coal or other mine.” 30 U.S.C. § 813(a). Accordingly, as we
said in Donovan v. Carolina Stalite Co., “[r]efusal to admit an
authorized representative into a facility for purposes of
conducting an inspection pursuant to § 103(a) is a violation of
the Act.” 734 F.2d 1547, 1549 n.2 (D.C. Cir. 1984). Moreover,
the Act provides that “no advance notice of an inspection shall
be provided to any person” (with exceptions not relevant here).
30 U.S.C. § 813(a). It is hard to understand what good that
provision would do if any operator could delay a surprise
inspection by blocking it without penalty.

       In maintaining that a right to refuse nonetheless exists, Rain
for Rent points to section 108 of the Act, which provides: “The
Secretary may institute a civil action for relief . . . whenever [a
mine] operator or his agent . . . refuses to admit [the Secretary’s]
representatives to the . . . mine.” Id. § 818(a)(1). Rain for Rent
also highlights language from our decision in Carolina Stalite.
There, we noted that section 108 proceedings provide a mine
operator with “an adequate forum . . . to show that a specific
search [was] outside the federal regulatory authority or to seek
. . . an order accommodating any unusual privacy interests that
[it] might have.” Carolina Stalite, 734 F.2d at 1556-57 (quoting
Dewey, 452 U.S. at 604-05). We described this as a “right to
force MSHA to go to court to gain entry to [a] plant.” Id. at
1557. But in pressing these quotations, Rain for Rent
misunderstands both Carolina Stalite and the Act.

     What we said in Carolina Stalite was what the Supreme
Court had earlier explained in Donovan v. Dewey: section 108
limits the Secretary’s remedies when a mine operator refuses
entry in contravention of the Act. “The Act prohibits forcible
entries, and instead requires the Secretary, when refused entry
onto a mining facility, to file a civil action in federal court to
                                -9-

obtain an injunction against future refusals.” Dewey, 452 U.S.
at 604 (emphasis added). In other words, if an operator refuses
to permit an inspection, the operator has a “right” to require
MSHA to go to court to gain entry because Congress did not
empower the agency to force its way into the property. See Rain
for Rent, 40 FMSHRC at 1276 (rejecting the argument that the
Act’s “prohibition of forcible entry is . . . necessarily the same
as [a] granted right to deny inspection”). But section 108 has no
application in a case like this one, where there never was such
a refusal.

     2. Even if there had been a violation of Rain for Rent’s
walkaround rights, we would reject the petitioner’s contention
that the violation warrants vacatur or suppression. The statute
does not expressly state the consequences of violating section
103(f)’s walkaround right, except to say, somewhat cryptically,
that “[c]ompliance with this subsection shall not be a
jurisdictional prerequisite to the enforcement of any provision
of this chapter.” 30 U.S.C. § 813(f). Neither party has offered
a persuasive account of what this language means.4

     Even in the absence of such a proviso, however, we have
interpreted a substantially identical walkaround right in the
Occupational Safety and Health Act to require that an employer
show “prejudice it suffered as a result of not being represented
during the inspection, a requirement imposed by every circuit
that has considered the issue.” Frank Lill & Son, Inc. v. Sec’y
of Labor, 362 F.3d 840, 846 (D.C. Cir. 2004) (internal quotation
marks omitted). Whatever the “not a jurisdictional prerequisite
to enforcement” language means, it must at least mean that a
harmless violation does not preclude enforcement. Otherwise,


    4
      The Commission’s last encounter with the question did not
produce a majority opinion. See Sec’y of Labor v. SCP Invs., LLC, 31
FMSHRC 821, 821-22 (2009).
                                 -10-

compliance with section 103(f) would effectively be an absolute
prerequisite, whether denominated as “jurisdictional” or
something else.

     And as we have noted, Rain for Rent suggests nothing that
it would have done differently if its employee had been present
the moment the inspector opened the truck’s door -- nothing,
that is, other than refuse entry based on a claim that the
inspector exceeded his jurisdiction under the Mine Act. See
Pet’r Br. 39. Not only is that defense without merit, see supra
Part II.A, but witnessing the full inspection would not have
improved it. Nor was Rain for Rent’s ability to present it to the
ALJ or this court impeded in any way.

                                   C

     Finally, Rain for Rent maintains that the warrantless
inspection of its truck violated the Fourth Amendment because
the petitioner was not afforded an opportunity for precompliance
review. In support, it cites the Supreme Court’s opinion in
Dewey, which upheld the Mine Act against a Fourth
Amendment challenge. But the Court did not hold there, nor has
it ever held, that precompliance review is necessary for the
constitutionality of warrantless administrative searches in a
closely regulated industry like mining.5


     5
      A “closely regulated” industry is one with “such a history of
government oversight that no reasonable expectation of privacy . . .
could exist for a proprietor over the stock of such an enterprise.” City
of Los Angeles v. Patel, 135 S. Ct. 2443, 2455 (2015) (quoting
Marshall v. Barlow’s, Inc., 436 U.S. 307, 313 (1978)). The Court has
“identified” mining as one of the few such industries. Id. (citing
Dewey, 452 U.S. 594); see also Dewey, 452 U.S. at 603 (finding that
“the regulation of mines [that the Act] imposes is sufficiently
pervasive and defined that the owner of such a facility cannot help but
                                -11-

     Dewey states the test for the constitutionality of a
warrantless inspection program in such an industry: there must
be a “substantial federal interest” that informs the regulatory
scheme; Congress must have reasonably determined “that a
system of warrantless inspections was necessary if the law is to
be properly enforced and inspection made effective”; and the
inspection program, “in terms of the certainty and regularity of
its application,” must “provide[] a constitutionally adequate
substitute for a warrant.” Dewey, 452 U.S. at 602-03; accord
City of Los Angeles v. Patel, 135 S. Ct. 2443, 2456 (2015); New
York v. Burger, 482 U.S. 691, 702-03 (1987). Dewey held that
the Mine Act satisfied all of the elements of that test. There is
no requirement of precompliance review in this framework,6 nor
is there one in the Mine Act itself.

     Rain for Rent nevertheless maintains that Dewey’s
requirement of “certainty and regularity” implies a requirement
of precompliance review. But Dewey explained that the Mine
Act meets the “certainty and regularity” requirement because:
(1) it “requires inspection of all mines and specifically defines
the frequency of inspection,” and (2) “the [health and safety]
standards with which a mine operator is required to comply are
all specifically set forth in the Act or in Title 30 of the Code of
Federal Regulations.” 452 U.S. at 603-04 (emphasis omitted).
Again, the Court did not mention a precompliance review
requirement.




be aware that he will be subject to effective inspection”) (internal
quotation marks omitted).
    6
      Accord Zadeh v. Robinson, 928 F.3d 457, 464 (5th Cir. 2019)
(“No opportunity for precompliance review is needed for
administrative searches of [closely regulated] industries.”); Liberty
Coins, LLC v. Goodman, 880 F.3d 274, 280-81 (6th Cir. 2018) (same).
                                 -12-

    Rain for Rent’s argument to the contrary focuses on the
paragraph that follows Dewey’s discussion of the “certainty and
regularity” requirement. There, the Court noted:

          [T]he [Mine] Act provides a specific mechanism for
          accommodating any special privacy concerns that a
          specific operator might have. The Act prohibits
          forcible entries, and instead requires the Secretary,
          when refused entry onto a mining facility, to file a civil
          action . . . to obtain an injunction against future
          refusals.

Dewey, 452 U.S. at 604 (citing 30 U.S.C. § 818(a)). Dewey is,
frankly, ambiguous as to whether this discussion of section 108
is part of its Fourth Amendment analysis, or simply a
description of an additional -- but not constitutionally required --
protection afforded by the Mine Act. Subsequent Supreme
Court cases do not include anything like it in their descriptions
of what is necessary to provide a constitutionally adequate
substitute for a warrant in a closely regulated industry.7


     7
        In Patel, the Court indicated that “an opportunity for
precompliance review” is required for the constitutionality of searches
under “general administrative search doctrine,” but not for searches
under the “more relaxed” test applicable to “closely regulated
industries” like mining. 135 S. Ct. at 2454. In Burger, the Court
explained that the “certainty and regularity” requirement means that
a statutory scheme “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.” 482 U.S. at 703. Burger held that a warrantless search of
an automobile junkyard under a New York regulatory scheme satisfied
those requirements. Id. at 711-12. It did so without mentioning either
a precompliance review requirement or a provision like section 108 of
the Mine Act. Indeed, the New York statute did not contain any such
requirement or provision. See Burger, 482 U.S. at 708-11 (describing
                                   -13-

     But the relevance of section 108 to Dewey’s constitutional
analysis is not something we need divine in order to resolve the
challenge presently before us. As we explained in Part II.B,
section 108 does not create a freestanding right of refusal; it
creates only a prohibition against forcible entry when entry is
refused. Section 108 has no application here because the
Secretary’s inspector was not refused entry. And because no
feature of the statute that Dewey upheld against constitutional
attack was violated, Rain for Rent’s challenge must fail.8

                                    III

     For the foregoing reasons, we conclude that Rain for Rent’s
statutory and constitutional challenges lack merit. Accordingly,
its petition for review is

                                                           Denied.




the statute’s relevant features in detail).
     8
      Rain for Rent also suggests that Dewey’s approval of the Mine
Act’s warrantless inspections was predicated, in part, on the
protections provided by the Act’s walkaround provision, 30 U.S.C.
§ 813(f), which we discussed in Part II.B. But that provision is not
mentioned anywhere in Dewey or any of the subsequent Supreme
Court opinions discussed above.
