thank you good morning i see that the counter reflexive but i did when i was there five minutes for  it please the court and counsel what we have in this case is a miner who went to the mine safety and health administration and said i was fired but i didn't engage in any protected activity and i wasn't fired on account of any protected activity under the mine act in response m she launched a full scale investigation demanding among other things five years of personnel files for employees who also were fired for not engaging and protected activity kind of skip a step and there i mean was there an interview to see what the complaint was all about there was an investigator who testified that he did interview mr gatlin before making the record request but that consist of is that in the record what that consisted of he did testify two years after the fact and after the request for the records to mail but agency is allowed to believe stuff that's testified to after the fact yes that is correct what happened during that mr smith testified that mr gatlin the complain did raise a few issues that he thought you know gave the investigator a suspicion of protected activity but when how can any cole notice that and in the complaint there was no allegation protected activity under the miner act and i asked him what their authority for demanding the personnel records was since there was no protective activity alleged i'm sure remained mute on the subject so so your complaint is essentially that you weren't informed or is it that there wasn't enough basis to proceed which would be two different things well i think that there was both i mean there was not enough basis to well complaint in the complaint thank the complaint and section section one hundred five c two the act says that the minor must have a belief that there was a violation under the miner act and he must file a complaint alleging such discrimination in other words alleging discrimination under the miner act and this complaint i think without dispute did not allege discrimination under the mynah and so when hopkins county  he says that i believe that i was wrongly fired for not coming back you know for demanding extra pay i mean i don't think he did i just want to see if we hold in your favor or will we be saying that all complaints have to meet certain pleading standards before anyone has received a complaint and so what's this all about i think your complaint has to allege discrimination you're saying yes that's the rule we have to come up with the investigation so that your view i mean i'm not trying to put words in your mouth but i'm just trying to understand your argument it seems like you're saying that the scope of the agency's investigation is basically limited  to the scope of what's alleged in the complaint i think that as a threshold matter the complaint needs to allege discrimination under the miner act there may be facts that it's undisputed in this case that it didn't is that fair they all when the government seeks to launch an investigation that includes a demand for records production private business records kept in a mine office and when the recipient of the request says you know can you please tell me a reasonable basis for your demand the government has a burden to articulate a reasonable basis  i get that because the act itself says that the records must be reasonably required so it's just not reasonable to us whether it's reasonably required seems like it might be different incumbent upon the government to articulate a reasonable basis for their requests and in the absence of a cognizable claim under the mine for and from they have to have a reasonable basis to they have to give a reasonable basis yes yes that is my contention because it used to support well because the government has the burden of justifying its demands its records demands and also if if the government doesn't have to articulate a reasonable basis then there's no way for the recipient of the demand to evaluate whether it should mount a constitutional or a statutory challenge i don't think that the act contemplates an investigator sampling coming in and saying i'm investigating a discrimination complaint you have no right to know what it is but i'm going to demand any records that at my sole discretion i deem are relevant to this an articulated claim let me ask the question maybe in a different way in your view what limits are there on the authority of the agency to show up at your place of business and demand any file they want to demand what limits are there well that is the problem here i think i mean but but under your conception of the statute what limits are there what what should the limits be or what are i mean i'm asking you what you think they are under the statute well i think that the statute in the discrimination context does not really provide any specific directives or guidelines to these subordinate government agents to come in and demand records and i think that there in lies the constitutional problem well my question i know you have a fourth amendment argument and the i'm trying to rather than complain about the scope of what they did here i'm trying to get an affirmative statement from you about what you think what limits does the statute place circumscribe their authority to show up at your doorstep and ask her any file they want i think that section one of three h says that the secretary can request documents that are reasonably required to perform his functions under the act i don't think that that authority can be delegated to low level administrators to determine their reasonableness and again so i don't think that the act authorizes what are the national of the two dissenting commissioners just remind me what was the rationale was it that these wide ranging requests were not reasonably required i mean i don't want to leave the question what what was their rationale for saying that this request was lawful i think that they believed that when a complaint on its face does not allege discrimination under the mine act and hopkins county call raise that issue that the government had a burden to tell them what the reasonable basis was for the requests what would've happened if the complaint itself in this case had laid out some of the allegations that seemed only to surface two years later namely that well they told me not to let's say you know they told me not to report certain safety violations and they fired me for that  reason if the complaint it said that when they come to you with the same requests what happens i still don't think that it passes muster constitutionally because in fact it happens under a little  ok what happens under the statute is that ok i think the analysis has to be is the request reasonable given the allegations in the complaint and then i think you also have to look at the issue which is that says the secretary may reasonably require documents it doesn't say that an investigator i think delegation it's probably not going to get you real far i mean statutes say the secretary all the time the secretary of labor of self is not run to in the us well but the secretary can act by promulgating regulations which then in turn will give operators knowledge that they may reasonably expect certain records to be subject to a government agent coming in and asking to see them and so that that is my understanding of the meaning the secretary may reason i'm tired but yes i mean i think that's part one and the reason one this is part two but then you still even if it's authorized you still have to go on and do the you please the court philip mair appearing on behalf of the secretary your honor as the secretary did nothing remarkable here she made a document request for the most basic type of documents an agency would need to investigate an alleged claim of discrimination the personal file of the complaining minor and the personnel file of the of similarly situated minors critically as the commission and the both found and judge rogers as you observed the secretary did so only after  special investigator interviewed the complaining minor and determined that if true his allegations establish that he had engaged in protected activity for which he may well have but why isn't there any conveyance of that to the lawyer i mean if you're an employer and they come with of the employer to be intrusive demands to fire with the employer i'd want to know what this was about and say well we know what it's about but we're not going to tell you just give us the stuff and you can  file and complain later when you when you challenge the penalty we're going to impose well the secretary did say in the initial letter to hopkins that it was investigating the discrimination complaint and i know that the complaint over what you know i mean that the premise that the thing for which he's being discriminated against is never revealed to them so as as as some of your questions to my friend i think helped eliminate that there is no statutory requirement that the secretary spell out the precise nature of the allegations that that he's investigating i don't know i didn't really hear that being spelled out let me ask you a question is it common ground in this case that the complaint itself did not state a claim under the act i would agree that it's coming around that the complaint itself does not on its face  your i mean and as you know i think it's five c two requires the secretary promptly to forward the complaint to the operator let's call them what in your view is the point of that requirement i think the point of that requirement is to put the operator on notice that the secretary has received this particular complaint and is investigating a discrimination complaint by that particular minor you know certainly a minor who a what if what if the complaint then doesn't even state a claim for discrimination so if it just you know said i've been discovered like this complaint again either the the requirement says to forward the  mean i guess i'm trying to see the implications of that you know i mean and so i guess to put it a different way why isn't that one statutory clue here that the investigation that follows hasta that the complaint itself has to provide some notice of the scope of the investigation that follows or converse of the or whatever that word would be that the agency's authority is some way in some way circumscribed already to investigate by what the complaint says two points first is that because the statute says precisely what the secretary is supposed to do in response to a complaint which is to investigate as he deems reasonable and as i started to say about the nature of this complaint i think the complaint does at least raise some questions it may not affirmatively state on its face an act of discrimination but it does raise alarm bells that would concern a special investigator because you have a i'm not claiming that it's no i know i know the alarm bell is that he is a person who is responsible for his job is doing safety examinations of the belts inside the mine and says in the first sentence of the complaint that that he's reading reasonably between the lines of it that he's not having time to complete his is assigned tasks is it your position that upon the filing of any complaint even one that's legally frivolous under the act the agency or the secretary or frankly as a practical matter the local officials have unlimited discretion to demand from the operator any file they want to demand can i get clarification  of the agency's sort of action here as compared to the complaint and some of the arguments and i just want to understand i mean is it your view that upon the filing of any complaint even one that does not state a claim under the act the agency has unlimited authority to show up at their doorstep and say i want all of these files and whatever files they say you kind of had a lock unless you want to run the risk of five thousand dollars a day and then after the fact challenge of the issue and i think that the and if that and that is the nub of the issue and the question is at what time is it reasonably necessary and again as i started in my opening remarks the secretary did not simply receive the complain and go out and start making document demands the secretary went and interviewed the complaining miner and theirs and special investigator smith explained why we go out and interview complaining minors even if the complaint itself isn't very secretary developed a policy of in but at least have a follow up conversation for every complaint and of course that followed conversation there were disturbing allegations made and they didn't pan out but if they had if i follow all that all that makes sense why why not let the employer in on their employer knows what the reason is for them for the search not search but request invests that that's the key here at least when you boil it down to what the other side is are you they say yeah you can say later that you had more on your mind but you never told us you had more on your mind right and we don't have any basis for knowing whether we should resist this and risk thousands of dollars in fines or whether we should go along because we don't even know what we're charged with and you do employer at three points if i can get through them on the first is a as i think you observed during my friend miss kilpatrick's time at the podium there is no statutory requirement that we do so but i know i know that doesn't resign but we're looking at reasonable so second is  that what hopkins didn't know is that we were investigating discrimination by a particular against a particular mine or it did not know the basis upon which but that the document demand here was was really a pretty humble one in terms of what an agency needs to assess whether or not an act of discrimination has happened his own personnel file that is minimally burdensome and frankly the citations would be sustainable just on that grounds and the implications of what you're arguing that are i mean let's say they asked for you know a lot more stuff i'm not seeing any limiting principle acknowledged by the secretary here that would limit  discretion and all the limiting principle is whether or not it's reasonably required and then i think to try just this goes to the last point i wanted to make in response to you which is i understand that part of what worries you is the specter of the penalties at the back end because if an operator  wants to challenge and sort of put us to the test of showing whether or not it's reasonably required they have to go through those proceedings and i understand that concern and that goes and the response to that is is the discretion that is baked into those proceedings if the secretary issues a citation and if hopkins or any operator contests and if it's found by a judge that you know is very reasonable for them to have wandered in and to contest the citation  then there's really discretion all the way down the secretary proposes penalties but those penalties are reviewed that's easy for the for this agency to say but it's a lot less easy for a private citizen or entity potentially to take advantage of in practice i mean when you have the feds show up on your doorstep and potentially now you're being fined thousands of dollars a day because you're not complying with what some local official you know is telling you to do that's a big risk i mean there is a tremendous pressure simply to capitulate and the idea that well you know and some judge is going to make it all better at the end i mean that's that's that's not nearly the same as a fourth amendment warrant application or the ministry of subpoena where if you show up in it's ridiculous go to the judge right and  the subpoena doesn't doesn't have any compulsory effect right and last a judge signs off so i think i hear it's just the district manager i understand where distributors are actually pretty high level of yeah ok i mean but here it's some district know itself act actually a important clarification there the commission and its j's are completely independent of the secretary this is not an agency that is how i write and the act does that precisely for this type of reason and that's what the court the supreme court said in thunder basin that the mine commission is a completely independent agency it's the commissioners are appointed by the president there is no responsiveness to the secretary it's really meant to help action as a court that's that's how and that's what the supreme court based its holding in thunder basin that there wasn't and i don't know if it becomes a problem but it's it's helpful and background why my question comes down a little bit to what i asked before and part of your answer is well my question i'm asked before is why not tell them when you find out what the basis you don't really know you interview you find out you know telling ploy or till two years later even though it was in your mind will accept i guess the fact that it was in the mind of the interviewer when and if you figured out that there was some upon interview appears to allege safety concerns alleged that he would report safety concerns when they didn't exist or what whatever it was that they surmised after the  interview trying to us that was my first question when you know why not tell i understand i can tell you what special investigator smith said about why he didn't tell them and that's at page one sixty one of the joint appendix which is that he said that you know sort of the more information you give an operator it can tend to skew the investigation people can tailor their responses to the nature of what you're investigating that said i'm i mean i'm not insensitive to your comment it may have been helpful if if if the agency had said something just as as as you suggest you know something upon interview that there may be protected activity here that that would have been helpful i guess another answer i don't know whether it makes sense is that this was it they didn't know that whatever it was it had to do with his being fired and that's exact way if they know that they know that this is the kind of information you're going to have if there's a question about being fired that's that's what i that's what i meant to convey in the original response here let me let me ask another technical question i was a little surprised in your brief that you have a size that there were two and a bit independent bases for these requests as one of three am one of three age and that they are independently supporting right so that is that right i  and and instruction for the secretary to investigate and and inspect mines health and safety conditions pretty much all the way through right and always to complains and one o five c two complaints about discrimination are as as congress said in the in the legislative history of fight all component of safety in mines and it's not just about protecting complaining miners it's about understanding the health and safety risks that may be being ignored because of the nature of the miners complaint the facts here actually here's my question your argument start the first three words are two separate provisions yes i've taken that to be no bottom line upfront you're talking about two separate provisions  agency really rely on two separate provisions so does the agency rely discriminate i read the agency's decision as an interpretation of h not relying in the alternative on h and on so that if by the agenc decision do you mean the commission decision yes the commission decision i believe relies entirely on age of the secretary throughout these procedures that's a decision we're reviewing right that's the decision here and we're reviewing that that's correct but because of what decision we're reviewing and if  conversation i was having with judge kessler generally or about the independent nature of the commission all of the deference cases in the mine act and act context talk about deference going to the secretary's interpretation it's precisely because the secretary is not the adjudicator the commission is the adjudicator but the miner act sets up the secretary is the policy making entity and so that's why the sekret the secretary throughout these proceedings has claimed a and  as basis upon which these either i'm wonder if that applies though when you're talking about what kind of claims they affirmed and what kinds of claims they didn't address whether there's an interpretation i'm asking whether there was an application by the commission of the commission didn't rely on this provision saying that they may have interpreted it different from the agency they just don't rely on it they were lying on agency  seems to undermine your are your defense of age to come in and start arguing about something that they didn't even lie on well certainly literally undermine it but it sure made it looks suspicious to me when you say well we have this lower decision that you're reviewing and it's all focused on this provision let me start out explaining why this other provision which they didn't rely on supports me i think we started with h because certainly h is our is our lead argument i think it's the it's the most straightforward argument because it's a plain text of  section one of three h the reason the secretary made both arguments because the secretary has made both arguments throughout these proceedings and we wouldn't want to be seen to have waved at one of the three argument simply because it's not the one that the commission chose to rely on here i would point out that we cite the b h p copper case in support of our one of three a argument that is a prior commission case that did hold that the secretary is authorized to request information pursuant to section one of three as well so the fact that the commission didn't rely on that provision here the secretary failed to raise that could be accused of where we rely on that we're relying on something that the commission hasn't applied its its review and expertise to so it is that a  say that is again this goes to the unique nature of the relationship between the secretary and the commission because the secretary is the policy making and indeed the logic of generally is that a court can't rely on a basis that the  the agency did not rely on because that would be intruding into the policy decisions of the agency but all of the deference cases about the mine act to the you know what you call the mind board for the mind commission mission i believe that a court can affirm a decision by the commission on alternate grounds urged by the secretary don't think you need to hear he doesn't really apply that's interest and i and i do believe that's consistent with the logic of martin versus strict the deference case we cited as well as all of this court's discussion of a case we're going to have a blue book exam at our start and at the end of the day provide through regular inspections by the secretary of the mine right i mean the secretary has a duty wires them but those inspections those regular inspections the scope of those would not include the sorts of files that are at issue in this case is that fair i think that's right so i mean i guess why now it's i just want to talk about the fourth amendment issue  that sort of diminishes the fourth amendment protection i guess they know i mean they know there are periodic inspections for specific purposes and here here we have inspections that are outside the scope of that so if i may why isn't their fourth amendment concern a significant one given that there doesn't seem to be any basis in the complaint on the face of the complaint for the request and it's outside of what they normally have to make available to the secretary i may try to answer the question it's hard for the kind of rambling question but let me  answer it at each of three levels that the first is at the level of what the donovan versus doing analysis looks like and the secretary contends that that's basically a decision saying that the structure of the mine act is such that mine operators are on notice that they are subject to pervasive and regular i mean not just regular meeting the four times a year but more regular than that in the act doesn't just call for those for it cold not so pervasive that it would reach these files not so pervasive that it would reach the secretary searching these files which is to say actually intruding into the mine office and rummaging through the files which of course i don't know how far that distinction is going to get you i mean you know i mean you could ask for all the files i mean i  that argument in your brain i think that distinction should should get us i mean i guess that's a constructive searchers one and the supreme court cases on constructive searches are very permissive and i don't want to short circuit your answers so that's one answer that the highest level at the next level of generality section one hundred five c two itself establishes a regular presence by the secretary it says that in response to section one hundred five c two claims we're supposed to investigate them and investigate them it makes stream lee rapid basis and as as  the secretary deems reasonable and the secretary and explained it j two eighteen as i said previously you know why we interview every minor when we get a complaint and then at the third level this isn't a fish nothing i think in brief can be interpreted as some sort of facial challenge to to the secretary's procedures and so look at what the secretary actually did here what the secretary did here is really no way different from what an administrative subpoena would look like we sent a letter that articulated the specific documents  d there's a huge difference and it really is part of the core of this case which is you know and administrators like the house of representatives to us you know who cares until a judge says it somebody has to comply with  long as the contest we have to go to a judge is what we have to go to administrative law judge and in terms of the fines starting to run as we point out in our not quite what you know the same as an administrative right and admin subpoena isn't i mean please because you know this stuff better not do an admin last subpoena and ministry of subpoena you have to go to in order to article three judge that's that's usually how they're structured but there's there's nothing that i'm aware of that says that that must be how they're structured and indeed the most recent supreme court is i believe is the is the penalties and as to the penalties we made the point in our brief that there is actually countless schemes that have been repeatedly affirmed by courts in which agencies make information demands th analyzed for their fourth amendment sufficiency under administrative subpoena standards so the girly case is that is this circuit's decision and those penalties are available from the day that the recipient of the information request doesn't comply if it is subsequently determined after a court hearing that they have failed to comply on reasonably and indeed the morton salt case which is sort of the birth birthplace along with the oklahoma press case of the administrative subpoena doctrine was itself a case like that if you go to the actually the last page of i don't want to go down that particular rabbit hole since the red light time just real quick it's it seems to me based on your brief that it's the secretary's he knew that the fourth amendment just simply doesn't apply to anything at the mine is that i'm not trying to be sort of sensationalist but that seems to be the implication it just doesn't apply here i know that in our earlier exchange you suggested you you don't find this overly compelling but the secretary does acknowledge her so there are some privacy expectations in these documents in particular we acknowledged in our brief that especially under the circuits precedent that we wouldn't have the right to rummage through files ourselves in an operator's office and i think that difference matters a lot certainly it's much more interesting i guess you know i took enough depths  practice i like to hone in on an answer so is it does the secretary believe that the fourth amendment does apply to the mines yeah it does apply and but it it  it applies in the sense that the secretary can't physically go through the files but the secretary could ask for all of it and well and it applies because the fourth amendment standards that apply to administrative s requests are that it be reasonable and relevant and non duplicative of something secretary has if we just blasted somebody with a give us every file in your mind office i think that pretty clearly would not survive that we don't have any idea on there and this goes back to  drudgeries are saying i mean you have your own sort of rationale in mind but they can't distinguish between and they have to make a decision that potentially exposes them to great civil liability for fines they they don't know that rationale in this case because they weren't told that and they can't distinguish between a demand that is targeted to some safety legitimate safety concern that the agencies investigating in what you just described this blast out think they have no idea they can't tell the difference oh i get it here they knew that we were investigating potential act of discrimination against one particular miner and therefore able to assess whether or not saying that but you know you know it's like discrimination based on what they don't know they have no idea i understand that they they don't know i mean the guy you know he could just i don't know i mean this thing doesn't state a claim so anything that doesn't state a claim when you start going beyond that and asking for a lot of files that don't seem to be tied to any safety issue raised in the complaint if they can't tell the difference between a blast out you know and i think was the term used and something that's that's legitimate but the just to be clear when i said last night i was afraid if we had just requested every single file and but it's hard for them i mean what we have to do here is not just decide this case but potentially as you know  lay down a rule that's going to govern other cases and and that is going to either let the agency ask for as much as it wants with with out explaining anything or that which is going to require some correlation between what the operator is told and what the agency can ask but again i would contend that the same concerns you have which i think they're all tight eventually to the daily penalties  i would like to just follow up on a few points that were discussed in the secretary's argument the secretary contends that the only limiting principle is reasonable reasonableness but that they don't have to articulate any basis for their request other than that this is a discrimination investigation following that contention any time anybody alleges discrimination then they have carte blanche as you alluded to  potentially all personnel files or for that matter all private documents in the mine office because we can't tell you why but it's reasonable in our investigation of this an articulated discrimination  case i don't understand why you assume that if it's enough to get five or ten personnel files for people who are fired for the same reason that means that it would be reasonable to get all the personal files for the  just i'm just talking about the one point you just made which i don't understand a lot of the rest of the i don't see why just saying that a request for ten files means that is reasonable is the same as a request for a million files is reasonable i mean any reasonable person could see some difference well i think you have to look where this leaves and if if all authority leads if the court sanctions no any so any time you say something's reasonable then you get it's not reasonable do is not only related to whether you have a basis for what you're doing it's also relates to the scope of what you're doing i agree that the scope is one factor but if you say this is this is reasonable where it's a very small scope and it's unclear what the purposes might be unreasonable if either of those neither of those was the case would be perfectly reasonable with i think that i think that the government has to articulate when you think about it but on the other hand they say this person is complaining about his discharge because listen lee but not explicitly it might relate to some violation of the act we want to know more about his discharge  you discharge people for this and how you discharged other people for this doesn't say we want all the records in the world that just says we want to know who else was was discharged for this kind of thing so that we can look at you know they're not respond asking why do you need to know you're saying they need to know why do they need to know because on its face this complaint did not allege any acts of despair saying they didn't know but i'm saying why do they need to know in order to make a response to this fairly limited request what good would it do for them to know the how would that enable them to decide whether to comply with the employer could then judge is this investigator carrying out functions under the miner act or will you have a chance to challenge it how to respond to the employer needs to know that another in order to evaluate do i respond and provide these documents or is this a constitutionally and statutorily suspect search for records that i'm going to refuse to provide and challenge and stand i also looked in something that you asked me earlier druggers didn't get one alleged discrimination and if you look back at his complaint he doesn't even alleged discrimination he says i feel that i was unfairly terminated and i think the comment about the union played a part in my being discharged but the secretary says he can simply follow a complaint saying i was discriminated against under the moniker he didn't even do that i would also say that the secretary says that there is regularity in the discrimination investigation process but there's not there's nothing in the mine act that says that all operators are subject to a regular program of discrimination investigations as judge kaplan allege alluded to this is a separate cost structure from the hundreds of pages of regulations that relate to mining activity and mining conditions the reason that the mining industry is pervasively regulated this is a separate a separate scheme that is not controlled by specific guidelines and regulations and that i think again brings in the fourth amendment analysis that this demand is not an adequate substitute for a warrant or other legal