# Kerr-McGee Coal Corp. v. Federal Mine Safety & Health Review Commission

> Court of Appeals for the D.C. Circuit · December 2, 1994 · 40 F.3d 1257

URL: https://www.frixlaw.com/law-library/cases/6932914

## Case

- **Full name:** KERR-McGEE COAL CORPORATION v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, International Union, United Mine Workers of America, Intervenor. American Mining Congress National Coal Association Wyoming Mining Association, amici curiae
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** December 2, 1994
- **Citations:** 40 F.3d 1257; 309 U.S. App. D.C. 226; 1994 WL 669714
- **Precedential status:** Published
- **Opinion:** Concurrence by Sentelle
- **Judges:** Rogers, Sentelle, Silberman
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6932914

## Opinion text

SENTELLE, Circuit Judge, concurring:
I agree with the majority’s analysis and conclusion. I write separately only to emphasize what I understand the court not to be deciding. That is, I understand the court to be deciding only that the Secretary has permissibly interpreted the Federal Mine Safety and Health Amendments Act of 1977, 30 U.S.C. § 801 et seq. (1988), to permit the selection by two or more miners of private persons not employed by the mine as representatives for the purpose of “aecompa-ny[ing] the Secretary or his authorized representative during the physical inspection” of the mine and participating in related conferences. 30 U.S.C. § 813 (f). The court does not decide whether the statute as construed is constitutional.
I agree with my colleagues that we need not decide the constitutional question. “A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 , 108 S.Ct. 1319, 1323 , 99 L.Ed.2d 534 (1988) (citations omitted). Nonetheless, I wish to highlight the fact that we are not determining constitutionality because I believe there is a question of constitutional dimension lurking behind today’s decision — a question based on the same constitutional presumptions that I believe underlie Lechmere, Inc. v. NLRB, 502 U.S. 527 , 112 S.Ct. 841 , 117 L.Ed.2d 79 (1992). That is, it is fundamental to our constitutional system of limited government that no person can “be deprived of ... property, without due process of law_” U.S. Const, amend. V. Whatever else is encompassed within the right of “property” protected by the Fifth Amendment, the right to exclude unwarranted intrusions is fundamental. See, e.g., Lloyd Corp. v. Tanner, 407 U.S. 551, 567 , 92 S.Ct. 2219, 2228 , 33 L.Ed.2d 131 (1972).
To say that the Congress can constitutionally pass laws permitting inspections of mine premises is one thing; to say that it can compel mine owners to permit onto their premises private individuals whose only claim to presence is selection by two of the property owners’ employees is quite another. I dare say that the very attorneys representing the plaintiffs in this case would think their constitutional rights ill used if a legislative body were to require them to permit into their offices, file rooms, and conference areas anyone whom two of their secretaries, messengers, or paralegals chose to invite. Likewise, the miners themselves would probably not be happy with a statute providing that any two private persons who lawfully entered their homes could thereafter lawfully invite anyone else they chose to make the same intrusion.
It may well be that the statute in its present form and with its present interpretation is constitutional; but it may not. The parties have not raised that question. I hope that future litigants will not cite this case for the proposition that the statute is constitutional if in some later case that issue is presented.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6932914. Public record. Not legal advice.