RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0256p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

H OPKINS C OUNTY C OAL , LLC, Petitioner ,

v

.

A LEX A COSTA , Secretary of Labor, M INE S AFETY AND H EALTH A DMINISTRATION ; F EDERAL M INE S AFETY AND H EALTH R EVIEW C OMMISSION , Respondents

. ┐ │ │ │ │ │ │ │ │ │ ┘ No. 16-3848

On Petition for Review from the Federal Mine Safety and Health Administration. Nos. 2009-820; 2009-821; 2009-822; 2009-1441. Argued: March 15, 2017
Decided and Filed: July 18, 2017 *
Before: KEITH, ROGERS, and KETHLEDGE, Circuit Judges.

_________________ COUNSEL

ARGUED: Melanie J. Kilpatric k, RAJKOVICH WILLIAMS KI LPATRICK & TRUE, PLLC, Lexington, Kentucky, for Petitioner. Philip Mayor, UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia, for Re spondent Secretary of Labor. ON BRIEF: Melanie J. Kilpatrick, Marco M. Rajkovich, Jr., RA JKOVICH WILLIAMS KILPATRICK & TRUE, PLLC, Lexington, Kentucky, Gary D. Mc Collum, HOPKINS COUNTY COAL, LLC, Lexington, Kentucky, for Petitioner. Philip Ma yor, W. Christian Schumann, UNITED STATES DEPARTMENT OF LABOR, Ar lington, Virginia, for Respondent Secretary of Labor. KEITH, J., delivered the opinion of th e court in which ROGERS, J., joined. KETHLEDGE, J. (pg. 21), delivere d a separate dissenting opinion.

* This decision was originally filed as an unpublished opinion on July 18, 2017. The court has now designated the opinion for full-text publication. 

### >No. 16-3848 Hopkins Cty. Coal v. Sec’y of Labor, et al. Page 2

_________________ OPINION

_________________ DAMON J. KEITH, Circuit Judge. This appeal involves the scope of the Secretary of Labor’s (“Secretary”) power to access comp any 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”), R obert 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 re view five sets of documents that it claimed were necessary to pr operly 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 te rmination during the previous five years for 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 unde r § 104(a) and (b) 1 of the Mine Act,
and HCC contested those citations with the Federa l Mine Safety and Health Review Commission (“Commission”). Following a hearing, an AL J upheld the citations and order, and the
Commission affirmed the decisi on. On appeal, HCC claims th at (1) the MSHA exceeded its authority under the Mine Act by demanding company personnel docu ments without first identifying any basis for a di scrimination 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 (h ereinafter “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-shif t examination that he believed entitled him to

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 p ublished section number to avoid confusion and maintain continuity with the practical usage of the MSHA.No. 16-3848 Hopkins Cty. Coal v. Sec’y of Labor, et al. Page 3

an extra hour of pay. HCC’s stated reason for terminating Gatlin was “insubordination.” On January 20, 2009, Gatlin filed a discriminati on 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.

The Commission would later determine that this complaint, standing alone, did not set forth a protected activity for a discrimination clai m 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-complain t interview of Gatlin and determined that Gatlin may have engaged in a protected activ ity 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 Mi ne in lieu of recording each potential safety violation. Gatlin also reported to Smith that hi s job had become so burdensome that he didn’t
have sufficient time to correct the unsafe conditi ons he discovered. Additionally, Smith believed based on the post-complaint interview that Gatli n 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 aninvestigation into Gatlin’s case. Boone approved and signed the letter, which was addressed to HCC General Manager

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 ha ve suffered an adverse action.”No. 16-3848 Hopkins Cty. Coal v. Sec’y of Labor, et al. Page 4

William Adelman (“Adelman”) and requested interv iews with five of HCC’s management-level employees regarding Gatlin’s discrimination comp laint. The letter, da ted January 26, 2009, was sent to HCC. In response, counsel for HCC “ref used to arrange the requ ested interviews unless MSHA identified the protected activity allege d in [Gatlin’s] discrimination claim.” Hopkins Cty.
Coal , 38 FMSHRC at 1319. MSHA never responde d directly to this letter.
On February 23, 2009, Boone se nt another letter stating that MSHA was conducting an investigation into Gatlin’s discrimination compla int and requested six se ts of documents that MSHA determined to be “necessary to properly ev aluate 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) doc uments showing any hazards or potentially
hazardous conditions at the Mine that were r ecorded between July 1, 2008 and January 31, 2009; (4) any HCC employee handbook or manual; (5) the pe rsonnel 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 docume nts requested therein should be provided by close of business on March 2, 2009 and noted that a failure to complywith the request would result in the matter being considered for legal action under § 108 4 of the Mine Act. Afte r 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. B oone 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 MS HA’s right to review the personne l files and contended that the company is entitled to know th e protected activity underlying Gatlin’s discrimination claim as a prerequisite to its duty to produce the requested documents. MSHA never responded.

4 30 U.S.C. § 818.No. 16-3848 Hopkins Cty. Coal v. Sec’y of Labor, et al. Page 5

On March 23, 2009, Smith and MSHA Investig ator 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 (“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. C onsequently, 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 oper ate 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 cita tions and a withdrawal order arising from their refusal to produce the requested personnel f iles, HCC filed a notice of contest with the Commission. On March 26, 2009 following a confer ence between the parties, HCC voluntarily produced Gatlin’s personnel file and the redacted personnel file s of the comparators, thereby relieving HCC of continuing liabi lity 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 proceed ings, HCC contested the validity of the two
citations and the withdrawal or der issued by MSHA Inspector Smithduring his site visit to the Mine. HCC argued, inter alia , that: (1) § 103 of the Mine Act doe s 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 th e Mine Act is 30 U.S.C. § 820(b)(1).No. 16-3848 Hopkins Cty. Coal v. Sec’y of Labor, et al. Page 6

Amendment Rights. 7 The Commission provided the followi ng 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 rele vant to assessing the merits of those claims is “reasonably required.” The [A LJ] found the Secretar y’s interpretation of sections 103(a) and (h) reasonable and en titled to deference. He determined that the requirement in section 103(h) th at the information sought be “reasonably required” obligates the Secretary to have a reasonable understanding of the complainant’s claim prior to making a doc ument request. He found that Smith had credibly testified that he had a r easonable 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 Amen dment 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 regularityof 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 H CC’s general interest in its personnel records.
Hopkins Cty. Coal , 38 FMSHRC at 1320.
In a June 24, 2016 opinion, the Commission a ffirmed the ALJ’s decision to uphold the
citations and withdrawal order issued by the MSHA. The Co mmission held as follows: (1) the Secretary had authority to inve stigate Gatlin’s discriminati on claim even though the miner’s initiating complaint did not articulate a protecte d activity; (2) § 103(h) au thorizes the Secretary to request certain files that an operator is not lega lly required to maintain so long as the requested

7 HCC does not raise several arguments that it presente d 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 pa rty’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 safe ty 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 pr e-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).No. 16-3848 Hopkins Cty. Coal v. Sec’y of Labor, et al. Page 7

records are “reasonably required” to enable h im to perform his functions under the Mine Act; (3) the personnel files re quested by the Secretary were reasonably required in orde r 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 th e protected activity alleged as a prerequisite to the Secretary’s right to conduct an investigation or to an operato r’s duty to comply with the Secretary’s investigation; and (5 ) the Secretary’s demand to revi ew the personnel records did not violate HCC’s Fourth Amendment Rights be cause the inspection was reasonable under Donovan v. Dewey , 452 U.S. 594 (1981), and the request satisfi ed the requirements for an administrative subpoena. The Commission th erefore affirmed the AL J, and HCC appealed.

III.
When presiding over an appeal from a fi nal order of the Comm ission, “[t]his Court
reviews the Commission’s deci sion and not the underlying decision of the ALJ . . . .” Pendley v. Fed. Mine Safety & Health Review Comm’n , 601 F.3d 417, 422 (6th Cir. 2010). We apply “a
deferential standard to the Commis sion’s factual determinations.” Id. “The findings of the Commission with respect to questio ns of fact, if supported by subs tantial evidence on the record considered as a whole, shall be conclusive.” 30 U.S.C. § 816(a)(1). “S ubstantial evidence is determined by evaluating whether there is such relevant evidence as a reasonable mind might accept as adequate to support th e 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).

a. The Secretary’s request for personnel file s during its investigation of Gatlin’s discrimination complaint was au thorized under the Mine Act HCC claims that the Secretary exceeded hi s authority under the Mine Act by demanding production of employee personnel file s without first providing the ope rator 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 S ecretary’s authority toNo. 16-3848 Hopkins Cty. Coal v. Sec’y of Labor, et al. Page 8

request records and other information from operators derives from § 103(h). Third, the Secretary’s specific authority to investigate employee discrimi nation complaints flows from § 105(c)(2). No provision of the Mine Act requir es 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 mustcease if the stat utory 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 request ing 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 acce ss to personnel records not specificallyrequired 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 1331. HCC does not point to any portion of the statute that 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” cl ause in § 103(h) plainly meansNo. 16-3848 Hopkins Cty. Coal v. Sec’y of Labor, et al. Page 9

that operators are under a duty to pr ovide 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 sect ion 103(a) or any ot her 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 th e Mine Act so long as the reco rds are “reasonably required” by the Secretary “to perform his functions.” 9

Because it is undisputed that one of the “f unctions” of the Secretary under the Mine Act is to evaluate and investigate discrimination complaints in accordance with § 105(c)(2), the Secretary did not exceed his authority by de manding 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 discri mination to the mine operator
The Mine Act requires that, “[n]o person sha ll discharge or in any manner discriminate against . . . any miner . . . because of the exer cise 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 insisten ce that “without a protected activity . . . there can be no possibility of any viable discriminati on claim.” Thus, HCC ar gues that the Secretary exceeded his authority by demanding personnel file s 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

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 beyo nd 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 Sa fety & Health Review Comm’n , 40 F.3d 457, 461 (D.C. Cir. 1994).No. 16-3848 Hopkins Cty. Coal v. Sec’y of Labor, et al. Page 10

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 part icular investigation. The Commissi on found as a matter of fact that MSHA Inspector Smith had “determined that Gatlin may have engaged in protected activity and may have suffered 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 factua l findings of the Commission unde r the substantial evidence standard, we must defer to th e Commission’s finding that Smith believed that Gatlin may have 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 ma y have engaged in the following protected activities prior to his terminati on: (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 withjob duties in the mine that he didn’t have sufficient time to correct the unsafe conditions he discovered; and (3) Gatlin may have beenreporting an increased number of hazardous conditions to manage ment in his pre-shift and on-shift book. 10 Smith’s testimony about Gatlin’s case is relevant evid ence 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 f iles 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 ther e was “no possibility of any viable discrimination claim” is not supported by th e record, and the Secretary did not exceed his authority by requesting the personnel f iles at issue in this case.

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 pr otected activity may have occurred prior to requesting documents from an operator under § 103(h) of the Mine Act.No. 16-3848 Hopkins Cty. Coal v. Sec’y of Labor, et al. Page 11

Despite the factual findings of the Co mmission, HCC argues that the Secretary nonetheless exceeded his authority because “the Government has a bur den to articulate a
reasonable basis” for a record demand under § 103(h) “in the absence of a cognizable
discrimination claim under the Mi ne Act.” However, as st ated, there was a cognizable discrimination claim in this case, and the facts presented here could not be applied to support HCC’s own legal theory. HCC e ssentially 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 plead ing burden on the Secretary to justify record requests under § 103(h) to mine ope rators as a prerequisite to hi s statutory right to request and obtain certain documents pursuan t to a discrimination inves tigation. Rather, even a postinvestigation 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 discharg e, 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 obligat ed “to begin proving his prima facie case” but is “simply obligated to meet the Commission’s mini mal pleading requirements ”). In light of the “minimal” pleading requirements of formal, post-investigation complaints filed with the Commission, it would be inconsiste nt with the statutory scheme to adopt HCC’s interpretation and require the Secretary to articulate a factual ba sis for a prima facie clai m to a mine operator at
the pre-investigation stage as a prerequisite to maki ng record requests under § 103(h). See 29 C.F.R. § 2700.40(a).
Despite refusing to divulge a specific pr otected activity to the operator at the preinvestigation stage, the Secretary complied wi th his duty under the Mine Act to notify HCC about Gatlin’s discrimination complaint wh en 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.No. 16-3848 Hopkins Cty. Coal v. Sec’y of Labor, et al. Page 12

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 or der to perform his functions. Th e 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 re quired by the Secretary because “records that tend to establish or disprove an element of a pr ima facie case of discrimi nation generally are . . . reasonably required to enable the Secretary to perform his investigativ e 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 th at they were not “reasonably required” because they were not relevant and that the requests were part of anoverbroad and sweeping records demand.
HCC states that the personne l files “would not have shed any light on MSHA’s quest to uncover some unalleged protected activity upon whic h 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 work place discipline, and other information contained in the personnel files would be relevant to corr oborate or disprove Gatlin’ s discrimination claim.
Id. This conclusion is sound b ecause a claimant’s own personne l 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. Mic h. 1988) (plaintiff’s own personnel file used to prove that her misconduct, not discrimination by the employe r, was the reason for her termination).
With respect to the files of the comparat ors, the Commission found that these documents
were “critical aids” in dete rmining 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 protecte d activity and an adverse action under the Mine Act. See
Cumberland River Coal Co. v. Fed. Mi ne Safety & Health Review Comm’n , 712 F.3d 311, 318No. 16-3848 Hopkins Cty. Coal v. Sec’y of Labor, et al. Page 13

(6th Cir. 2013). If the comparator files reveal ed 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 ha ve indirect evidence of causa tion 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 elemen ts of discrimination is both
common and relevant under a va riety of legal theories. E.g. , Parrish v. Ford Motor Co. , 953 F.2d 1384 (6th Cir. 1992) (table) (“access to th e personnel files of the eight individuals promoted . . . in order to discover at a minimum their ages and qualificati ons, 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 coworker who also reported sex discrimination at least reasonably likelyto 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 fi les 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 internal company documents. Ho wever, 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 faci e elements of a discrimination claim under the Mine Act or the credibility of Gatlin’s allegati ons. Additionally, the request to obtain personnel files was only made after the MSHA was denied the right to in terview five of HCC’s managerial employees who may have had knowledge of the circumst ances 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, th e requests were not made on site at the whim of a field investigator, and the r ecord indicates that Smith was required to get approval from district manager B oone prior to making the record demands in question. Thus, theNo. 16-3848 Hopkins Cty. Coal v. Sec’y of Labor, et al. Page 14

record does not support HCC’s claim that th e MSHA’s request for pe rsonnel files was overly
broad or left unfettered disc retion to inve stigators.
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 co mplaint 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 co mplaint 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 requests for certain HCC personnel files were r easonably 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 file s 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 o fficial entries upon his private commercial property.” Marshall v. Barlow’s, Inc. , 436 U.S. 307, 312 (1978). “However, unlike searches of private homes, which generall y must be conducted pursuant to a warrant in
order to be reasonable under the Fourth Amendmen t, legislative schemes authorizing warrantless administrative searches of commercial prop erty do not necessarily violate the Fourth
Amendment.” Donovan , 452 U.S. at 598. Fourth Amendment jurisprudence recognizes an exception that dispenses the warrant requireme nt “in cases involvi ng ‘closely regulated’ industries, where . . . the comm ercial operator’s priv acy interest is ade quately 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-No. 16-3848 Hopkins Cty. Coal v. Sec’y of Labor, et al. Page 15

established that coal mining is a pervasively regul ated 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 H CC’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 , the Supreme Court upheld regular safety inspecti ons 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 Secr etary’s warrantless request to inspect certain HCC company personnel files as part of a disc rimination 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; and (3) the statute’s insp ection program, in terms of the ce rtainty and regularity of its application, must provide a constitutionall y adequate substitute for a warrant. Burger , 482 U.S.
at 702–03.

Just as in Donovan , the substantial government intere st underlying the Mine Act is “improving the health and safety conditions in the Nation’s . . . mi nes. In enacting the statute, Congress was plainly aware that the mining industr y is among the most hazardous in the country and that the poor health and safety record of th is industry has significan t deleterious effects on
interstate commerce.” Donovan , 452 U.S. at 602. HCC argues that MSHA investigations into discrimination complaints are “not related to hea lth 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 thatthe Mine Act’s antidiscrimination provision is instru mental in ensuring safe and h ealthy conditions in our nation’s mines. This Court has previouslystated that an important featur e of the Mine Act is to prevent “reprisal for making safety-related complaints,” and recognized that Congress included the anti-No. 16-3848 Hopkins Cty. Coal v. Sec’y of Labor, et al. Page 16

discrimination provision “to encourage miners to pl ay an ‘active part in the enforcement of the Act’ and protect them ‘against any possible discrimination which th ey 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 from health and safety. Accordi ngly, 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 disc rimination 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 sc heme. The Secretary’s general authority to conduct inve stigations 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 resp onsibilities under this [Act ], or any authorized representative of the S ecretary . . . 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 st ating that, “[t]he Committee intends to grant a broad right-of-entry to the Secr etaries or their authorized repr esentatives to make inspections and investigations of all mines under this Act without firs t obtaining a warrant.” S.Rep. No. 95–181, at 27 (1977), reprinted in 1977 U.S.C.C.A.N. 3401, 3427 (emphasi s added). The Senate Report further states that, “a warrant requirement w ould seriously undercut this Act’s objectives” because “many safety or health hazards may be concealed if advance wa rning of inspection is
obtained.” Id. ; see also Donovan , 452 U.S. at 603. Thus, § 10 3(a) intended to permit warrantless right-of-entry to the Secretary for th e purpose of both inspection and investigation, including the discrimination inve stigation undertaken by the Secret ary in this case pursuant to § 105(c)(2). Warrantless discrimina tion investigations, just like th e regular inspections at issue
in Donovan , are therefore necessary to the enfo rcement of the regulatory scheme. See Donovan , 452 U.S. at 603–604.No. 16-3848 Hopkins Cty. Coal v. Sec’y of Labor, et al. Page 17

Finally, we ask whether “the statute’s inspection program, in terms of the certainty and regularity of its application,” provides a cons titutionally 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 sear ch 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 inspectio n system of business premises that is carefully limited in time, place, and scope, the legali ty 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-d iscrimination 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 tw o advanced notifications of the date investigators woul d conduct a site visit. Onthe date of the site vi sit, the ini tial citation for failure to provide the records stated that th e request was being made pursuant to the law and specifically noted the authority of the MSHA under § 103(a) and (h ) to investigate and to obtain information from HCC. Altogether, these suffici ently 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 sear ch at issue in this case was not made at the “unbridled discretion” of an agen t 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 theNo. 16-3848 Hopkins Cty. Coal v. Sec’y of Labor, et al. Page 18

individual whose complaint was being investigated and the specific information and documentation that was being sought as part of that specific discrimi nation 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 offici als is “directly curtailed by the regulatory scheme.” Donovan , 452 U.S. at 604–605. For example, in the contex t of the citations issued by the MSHA for HCC’s failure to comply with the document reque sts in this case, “the Secretary’s penalty assessments bec[a]me final and payable only af ter 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 co mply with the document requests did not require it to pay the fines un til 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 the field officer seeking to conduct the inspection of the records and provided a constitutionally adequate substitute for a warrant. The search wa s thus reasonable under the Fourth Amendment.
To be clear, we do not hold that mine ope rators 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 ev ery request for private company documents by the MSHA comports w ith the Fourth Amendment merely because a vague discrimination complaint was filed by a mine r. However, in the circumstances presented here, HCC had sufficient information to assess th e legality of the document requests at issue. HCC had ample advance notice of precisely whic h records the MSHA woul d inspect, it knew the date, time, and location of the requested in spection, it knew the specific identity of the complaining miner, and it knew that the discri mination 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 di d not know what the specific safety-related protected activity was. This is roughly equiva lent 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 theNo. 16-3848 Hopkins Cty. Coal v. Sec’y of Labor, et al. Page 19

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 C ourt’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 regulati on that presumptively allowed OSHA field investigators to demand and inspect records without a warrant or an administrative subpoena. Id. However, the holding in Kings Island was premised on the fact that no Fourth Amendment exception to the warrant requirement ex isted in that case, and the court specifically recognized that coal mining is such a pervasiv ely regulated industry that it 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 an alysis. The OSHA Review Commission stated that, “the Supreme Court has clearl y indicated that cases under this separate and distinct branch of the Fourth Amendment case law (pervasively re gulated 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 Barlow’s, Inc. , 436 U.S. at 313–14 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 co al 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 comp laint alleging thatthe use of fog during theatrical performances caused irritation to the employees’ eyes and upper respiratory systems. Kings Island , 849 F.2d at 991–92. During the insp ection, 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 o ccupational injuries and illnesses at the facility.
Id. at 992. The stated purpose for inspecting thes e records was to conduct a general search into any hygienic and environmental problems at the theme park. Id . This Court summarized theNo. 16-3848 Hopkins Cty. Coal v. Sec’y of Labor, et al. Page 20

incident as “an unannounced inspection accompan ied by an arbitrary and discretionary demand 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 butunannounced. Three months prior to the site visit, on January 20, 2009, the MSHA sentHCC 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 we re 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 add itional requests for records were made. Third, each of the requests related to sp ecific 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 investiga tion 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 becau se 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 th e § 103(h) requests in this cas e were sufficiently limited in time, place, and scope as part of the Mine Ac t’s regulatory inspection system for conducting discrimination investigations and did not violate HCC’s Fourth Amendment rights. See Biswell , 406 U.S. at 315.

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

_________________ DISSENT

_________________ 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 provide s 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 r eceipt of such complaint,” MSHA “shall” then “cause such investigation to be ma de as [it] deems appropriate.” Id. Here, an MSHA complaintprocessor took down Gatlin’s stor y and then reduced it to a writ ten complaint. Yet, as the Commission itself found, Gatlin’s complaint still did not allege any discrimi nation 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 it s personnel records.
Moreover, when MSHA does receive a complain t 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 manife st purpose is to prov ide the operator with notice of its alleged violation of the Act before MSHA begins en gaging in conduct that
resembles a Fourth Amendment search. Absent su ch 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 wr ong guess would expose Hopkins to fines of up to $5,000 per day. See 30 U.S.C. §§ 814, 820. I therefore agr ee with the dissent ing commissioners that, “[w]hen there is not even a claim of protect ed activity or adverse action based on protected activity by the miner or MSHA, a request for fi ve years of personnel records is a fishing expedition not authorized by the st atute as a reasonable request.” Hopkins Cty. Coal, LLC , 38 FMSHRC at 1347.
I respectfully dissent.