Big Ridge, Inc. v. Federal Mine Safety & Health Review Commission

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 12-2316 & 12-2460

B IG R IDGE, INC., JERAD B ICKETT, et al.,

Petitioners,

v.

F EDERAL M INE S AFETY AND

H EALTH R EVIEW C OMMISSION, et al.,

Respondents.

Petitions for Review of an Order

of the Federal Mine Safety and Health Review Commission.

A RGUED D ECEMBER 4, 2012—D ECIDED A PRIL 26, 2013

Before B AUER and H AMILTON, Circuit Judges, and T HARP,

District Judge.Œ

H AMILTON, Circuit Judge. Under the Federal Mine

Safety & Health Act of 1977 (“the Mine Safety Act”),

the Secretary of Labor is charged with protecting the

health and safety of the nation’s miners, acting through

Œ

The Honorable John J. Tharp of the Northern District of

Illinois, sitting by designation.

2 Nos. 12-2316 & 12-2460

the Federal Mine Safety and Health Administration

(“MSHA”). Regulations issued under the Mine Safety

Act require mine operators to report to MSHA all mine-

related injuries and illnesses suffered by mine employees.

In October 2010, MSHA acted on a new and broader

interpretation of existing regulations. It informed thirty-

nine mine operators that, in addition to providing the

injury and illness reports, they would be required to

permit an MSHA inspector to review employee med-

ical and personnel records during their next inspections.

Reviewing employee medical and personnel records

would enable MSHA to verify that the mines have not

been under-reporting miners’ injuries and illnesses.

Two mine operators refused to provide the records.

MSHA issued citations and imposed monetary penalties

for failing to comply with the demand for the records.

The mine operators challenged MSHA’s authority to

demand the records and to impose penalties under the

Mine Safety Act and relevant regulations. The mine

operators argued that MSHA is not authorized to

require them to produce records beyond those that reg-

ulations specifically require them to maintain. The chal-

lenge was heard by an administrative law judge and

reviewed by the Federal Mine Safety and Health

Review Commission (“the Commission”), both of which

found that the document demands and enforcement

were lawful under 30 U.S.C. § 813(h) and 30 C.F.R. § 50.41.

The mine operators petitioned for review by this court,

joined by a group of mine employees who intervened

before the Commission to raise personal privacy chal-

lenges to the document demands.

Nos. 12-2316 & 12-2460 3

On petitions for judicial review, the mine operators

and miners challenge the document demands on several

grounds. They contend: (1) that MSHA does not have

the authority to require mines to comply with the

demands under the Mine Safety Act or relevant regula-

tions; (2) that the relevant regulation, 30 C.F.R. § 50.41, is

not a reasonable interpretation of the Mine Safety Act

and was not properly promulgated; (3) that the docu-

ment demands infringe the mine operators’ Fourth

Amendment right not to be searched without a warrant;

(4) that the demands violate the miners’ Fourth Amend-

ment privacy rights in their medical records; (5) that the

daily penalties MSHA imposed for failure to comply

violate the mine operators’ Fifth Amendment right to

due process of law; and (6) that the demands conflict

with a variety of other federal and state laws.

We agree with the Commission that MSHA acted

within its statutory and constitutional authority both in

demanding information that would permit MSHA to

verify the accuracy of mine operators’ injury reports and

in issuing citations and monetary penalties when mine

operators refused to comply. We deny this petition

for review of the judgment of the Commission.

I. Regulatory and Factual Background

A. Federal Regulation of Mine Safety

The Federal Mine Safety and Health Act of 1977, Pub. L.

No. 95-164, superseded two prior pieces of mine legisla-

tion, the Federal Coal Mine Health and Safety Act of 1969

4 Nos. 12-2316 & 12-2460

(“the Coal Act”), Pub. L. No. 91-173, and the Federal

Metal and Nonmetallic Mine Safety Act of 1966 (“the

Metal Act”), Pub. L. No. 89-577. The 1977 Mine Safety

Act covers all types of mines addressed by these prior

acts. In passing the new Mine Safety Act, Congress

acted to strengthen the government’s authority to reg-

ulate mines in response to a joint committee of Congress

finding that after “ten years of enforcement of the

Metal [A]ct, and six years of enforcement of the Coal Act .

. . fatalities and disabling injuries in our nation’s mines are

still unacceptably and unconscionably high.” S. Rep. No.

95-181, at 7 (1977), reprinted in 1977 U.S.C.C.A.N. 3401,

3407. Recognizing “an urgent need to provide more

effective means and measures for improving the

working conditions and practices in the Nation’s coal or

other mines in order to prevent death and serious

physical harm, and in order to prevent occupational

diseases originating in such mines,” Congress passed

the 1977 Mine Safety Act to strengthen the govern-

ment’s ability to ensure mine safety. 30 U.S.C. § 801(c).

Congress found that the stronger Mine Safety Act was

needed because earlier laws had proven too weak and

mines still had appalling safety records. At the time the

Mine Safety Act passed, an average of one miner died

and sixty-six miners were injured each day, and the

incidence of work-related injuries and illnesses for

miners exceeded the “all-industry” rate at the time by

about 14 percent. S. Rep. No. 95-181, at 4, 7, 1977

U.S.C.C.A.N. 3404, 3407.

The Mine Safety Act created the Mining Enforcement

and Safety Administration (“MESA”), which has been

Nos. 12-2316 & 12-2460 5

renamed the Mine Safety and Health Administration

(“MSHA”). The Act gave MSHA broad authority to

ensure the safety of mines, including the authority

to inspect mines and collect records and reports,

30 U.S.C. § 813, to promulgate mandatory health and

safety standards and rules, § 811, and to enforce safety

standards and rules through citations and penalties, § 814.

Most relevant here, section 813(a) authorizes MSHA

to inspect and investigate mines, and section 813(h)

imposes reporting and record-keeping requirements

upon mine operators.

Sections 813(a) and 813(h) provide the statutory basis

for MSHA’s collection and reporting of data relating

to mine safety and health. To implement these sections,

regulations were promulgated detailing a system of

required reporting for mines. Under the “Part 50” regula-

tions, mines must immediately report serious injuries

or incidents, 30 C.F.R. § 50.10; must report all mine ac-

cidents, injuries, and occupational illnesses as they

occur on forms called 7000-1 reports, § 50.20; and must

report employee work hours and total coal production

for each quarter on forms called 7000-2 reports, § 50.30.

MSHA uses Part 50 reports to calculate for all mines

the “Incidence Rates,” which are the number of injuries

or illnesses per employee hour worked, and “Severity

Measures,” which take into account the severity of

injuries per employee hour worked. See 30 C.F.R. § 50.1.

These reports permit MSHA “to investigate, and to

obtain and utilize information pertaining to, accidents,

injuries, and illnesses occurring or originating in

mines.” Id. MSHA also makes all of this compiled data

6 Nos. 12-2316 & 12-2460

publicly available on its website. See MSHA Statistics,

www.msha.gov/stats/statinfo.htm (last visited April 24,

2013).

In addition to requiring mine operators to submit the

7000-1 and 7000-2 reports, the Part 50 regulations require

mine operators to maintain copies of those records and

to permit MSHA to verify the information in those re-

ports. The provision at the center of the controversy

here is section 50.41, which permits MSHA to verify

the information in the reports:

Upon request by MSHA, an operator shall allow

MSHA to inspect and copy information related to an

accident, injury or illnesses which MSHA considers

relevant and necessary to verify a report of investiga-

tion required by § 50.11 of this part or relevant and

necessary to a determination of compliance with

the reporting requirements of this part.

30 C.F.R. § 50.41.

The Mine Safety Act authorizes MSHA to enforce

these reporting requirements through citations and

orders, 30 U.S.C. § 814(a), “failure to abate” penalty fees

when a mine has not abated a previously-cited viola-

tion, § 814(b), and withdrawal orders, which require a

mine to be evacuated and shut down, § 814(d). Mine

operators can challenge citations and orders in a

hearing before an administrative law judge whose deci-

sion is appealable to the Commission. § 815(d). While

the contest hearing is pending, mine operators can

request temporary relief from certain penalties and

other orders. § 815(b)(2). Mine operators can petition for

Nos. 12-2316 & 12-2460 7

review of final orders of the Commission by a federal

court of appeals, § 816(a)(1), as petitioners have done here.

B. Part 50 Audits

During inspections of several mines in October

2010, MSHA inspectors presented letters ordering the

mine operators to have several pieces of information

and documents related to the 7000-1 and 7000-2 reports

from July 1, 2009 through June 30, 2010 “available for

review” during their next inspections. The demanded

documents included:

1. All MSHA Form 7000-1 Accident Reports

2. All quarterly MSHA Form 7000-2 Employment

and Production Reports

3. All payroll records and time sheets for all individuals

working at your mine for the covered time period

4. The number of employees working at the mine

for each quarter

5. All medical records, doctor’s slips, worker com-

pensation filings, sick leave requests or reports,

drug testing documents, emergency medical trans-

portation records, and medical claims forms in

your possession relating to accidents, injuries, or

illnesses that occurred at the mine or may have

resulted from work at the mine for all individuals

working at your mine for the period of July 1, 2009

through June 30, 2010.

Joint App. 32.

8 Nos. 12-2316 & 12-2460

MSHA sent this letter to thirty-nine mines, including

two mines operated by Peabody Energy Company.

Counsel for MSHA later told the Commission that the

thirty-nine mines were selected because, “but for sup-

posedly low severity measures . . . they would

have met the criteria for a potential pattern of violations

screening.” Comm’n Tr. at 45. MSHA designates a mine

as having a “pattern of violations” (“POV”) when the

mine has established a history of significant and sub-

stantial violations of mandatory safety or health stan-

dards. 30 U.S.C. § 814(e); see also 30 C.F.R. §§ 104.1 et seq.

Once a mine is in POV status, MSHA has increased

authority to institute safety precautions, which can

involve burdensome administrative requirements and

disruption of mine activities. See 30 U.S.C. § 814(e) (autho-

rizing withdrawal orders after a POV notice); 30 C.F.R.

§ 104.4 (requiring mine operators to post all POV notifica-

tions and listing actions a mine operator may be re-

quired to take upon issuance of a POV notice). Thus,

MSHA had determined, based on other data it collected,

that these thirty-nine mines’ Incidence Rates and

Severity Measures were statistically lower than MSHA’s

calculations indicated they should be. MSHA suspected

that the mines might be under-reporting injuries to

avoid the increased scrutiny that would come with

POV status. Reviewing employee medical and personnel

records could enable MSHA to determine if more em-

ployees had been injured or ill than the mines had re-

ported.

When MSHA representatives first presented the

initial demand letter to two Peabody-owned mines,

Nos. 12-2316 & 12-2460 9

mine personnel complied with the requests to produce

the 7000-1 and 7000-2 reports and the number of em-

ployees working at the mine for each quarter (items 1, 2,

and 4), but they refused to produce payroll and medical

records (items 3 and 5). MSHA sent another letter

on October 28, 2010, demanding the same list of docu-

ments. Counsel for petitioner Peabody and another

mine operator, petitioner Big Ridge, responded to the

October 28 letter with a letter explaining that the mine

operators would not comply with the medical and

payroll record demands because they did not believe

the demands were within MSHA’s authority. They also

expressed concern for the privacy rights of miners and

privacy of the mines’ “confidential business informa-

tion.” Joint App. 70, 72.

MSHA inspectors returned to two mines operated by

Peabody on November 9, 2011, and again demanded

the medical and personnel records. The mine operators

again refused, and the inspectors issued citations under

30 U.S.C. § 814(a). With the dispute having already

been teed up, the citations listed the failure-to-abate

period as fifteen minutes, meaning that the mine

operators would have fifteen minutes from the time the

citation was issued to comply with the underlying

demand before MSHA could begin imposing failure-to-

abate penalties under section 814(b). When, after fifteen

minutes passed, mine personnel again refused to produce

the records, the inspectors issued failure-to-abate orders

under section 814(b). MSHA later imposed a penalty fee

of $4,000 per day in conjunction with the failure-to-

abate order on one mine, Peabody Midwest.

10 Nos. 12-2316 & 12-2460

The mine operators contested the orders and citations,

and the case was heard by an administrative law judge.

MSHA stayed the daily failure-to-abate penalties while

the hearing was pending. In two opinions issued on May

20, 2011, the ALJ affirmed the citations and orders, finding

that (1) the medical and personnel records MSHA sought

were relevant to the mines’ compliance with reporting

regulations, (2) MSHA was authorized to demand the

records as part of a Part 50 audit, and (3) the demands

did not impose an unreasonable burden on the mine

operators. The mine operators appealed to the Commis-

sion, which consolidated several similar cases. A group

of miners who objected to the record demands inter-

vened and filed briefs.

The Commission affirmed the orders and citations on

May 24, 2012. The Commission held that MSHA was

authorized to make the demands under sections 813(a)

and (h) and Part 50.41. The Commission also held that

the demands did not violate either the mine operators’

or the miners’ privacy or Fourth Amendment rights,

that the demands did not violate mine operators’ Fifth

Amendment right to due process, and that the demands

did not conflict with other federal and state laws. One

commissioner dissented, arguing that MSHA would

need to undertake additional notice-and-comment

rulemaking to have the authority to demand the records

without offending the Fourth or Fifth Amendments. The

mine operators and miners petitioned for review of the

Commission’s decision, raising all of the objections

they raised before the Commission.

Nos. 12-2316 & 12-2460 11

II. Analysis

We have jurisdiction under 30 U.S.C. § 816(a)(1) to

review orders of the Commission. Petitioners raise

a number of challenges to the Commission’s order affirm-

ing MSHA’s authority to demand the medical and per-

sonnel records and enforce compliance with them. We

first consider whether the Mine Safety Act and relevant

regulations give MSHA the statutory and regulatory

authority to require mine operators to produce em-

ployee medical and personnel records that mine

operators are not otherwise required to maintain. We con-

clude first that under 30 C.F.R. § 50.41, MSHA may

require mine operators to permit MSHA inspectors to

review and copy employee medical and personnel

records necessary to verify the mine operators’ com-

pliance with other reporting obligations. We also

conclude that section 50.41 is a valid exercise of the

agency’s authority under sections 813(a) and 813(h) of

the statute. Second, we then consider petitioners’ Fourth

Amendment challenges to the demands, concluding

that the demands do not impermissibly infringe on

the mine operators’ Fourth Amendment rights and do not

impermissibly infringe on the privacy of the miners’

personal information. Third, we consider whether im-

posing daily penalties before the opportunity for Article

III judicial review of the validity of the underlying vio-

lation infringes the mine operators’ right to due pro-

cess; we conclude that it does not. Fourth, we explain

why the document demands do not impermissibly

conflict with other federal and state laws.

12 Nos. 12-2316 & 12-2460

A. Statutory and Regulatory Authority

MSHA sought to review mine employee medical

records under the authority of a Part 50 regulation,

section 50.41. The mine operators and miners argue that

neither section 50.41 of the regulations nor section 813(a)

or section 813(h) of the statute permits the MSHA de-

mands. Petitioners argue that none of those provisions

require mine operators to produce documents they

are not required to maintain by statute or regulation, and

they are not required to maintain the records demanded

here. They also argue that even if the text of section 50.41

authorizes the demands, the regulation is an unrea-

sonable interpretation of the Mine Safety Act. They also

challenge MSHA’s promulgation and implementation

of the regulation.

We disagree with these challenges. The broad language

of section 50.41 authorizes MSHA to require mine opera-

tors to permit inspectors to review and copy employee

medical and personnel records that would permit

MSHA to verify the accuracy of mine operators’ 7000-1

and 7000-2 reports. Moreover, section 50.41 is valid

because the relevant sections of the Mine Safety Act

permit MSHA to promulgate a regulation that would

authorize these record demands. The Act grants MSHA

broad inspection and document review powers, in-

cluding the power to “reasonably require” mines to

provide information that would enable MSHA to

“perform [its] functions under this chapter.” 30 U.S.C.

§ 813(h). The demands here fall within the scope of

these powers because verifying the accuracy of mine

Nos. 12-2316 & 12-2460 13

operators’ injury reports is necessary for MSHA to ful-

fill its duties of ensuring miner health and safety. None

of the petitioners’ challenges to the validity of the reg-

ulation or the MSHA’s interpretation of the statute per-

suade us otherwise.

1. Section 50.41 Authorizes the Demands

Section 50.41 authorizes MSHA to require mine

operators to permit MSHA agents to inspect and copy

employee medical and personnel records to verify mine

operators’ compliance with reporting requirements

under Part 50. Section 50.41 requires mine operators to

permit MSHA to “inspect and copy information related

to an accident, injury or illnesses which MSHA con-

siders relevant and necessary to . . . a determination of

compliance with the reporting requirements of this

part.” 30 C.F.R. § 50.41.

We believe this language is straight-forward. This

section authorizes the demands here because employee

medical and personnel records are “relevant and neces-

sary” for MSHA to determine whether mine operators

are accurately reporting mine-related injuries and

illnesses on 7000-1 reports. The Mine Safety Act relies

in the first instance on mines to self-report all injuries, so

it is possible for mine personnel to decide to leave out

some employees’ work-related injuries or illnesses by

not filing out a 7000-1 form for a given injury or illness.

Under-reporting in this way could be beneficial to a

mine because having lower Incidence Rates and Severity

Measures could lessen the scrutiny the mine receives

14 Nos. 12-2316 & 12-2460

from MSHA. Moreover, the mines here used procedures

for filing 7000-1 forms that left much room for error

and omissions. Several safety managers from the mines

testified before the ALJ that they had no way of ensuring

that they were aware of all injuries and illnesses

suffered by employees in the mine — they reported to

MSHA only what others in the mine reported to them.

Thus, if MSHA were to rely on the 7000-1 forms alone,

it would risk missing additional injuries and illnesses

and would not have the basis from which to take action

against mines that were under-reporting. While the

Mine Safety Act relies primarily on self-reporting for

injuries and illnesses, MSHA is not required to take the

self-reports on faith. Without the records demanded in

these audits, MSHA may not even be aware that a mine

is under-reporting. Moreover, without knowing whether

mines are under-reporting injuries and illnesses, MSHA

would not have an accurate view of the frequency and

types of injuries and illnesses caused by mine work,

thus hindering its ability to fulfill its duty to develop

policies and standards to ensure mine safety.

The records MSHA demanded in the disputed inspec-

tions here would help alleviate these problems. The

medical records could reveal work-related injuries or

illnesses beyond those reported in the 7000-1 reports.

For example, doctors’ notes that a mine collected from

employees missing work could reveal ongoing work-

related illnesses, such as pneumoconiosis, or workers’

compensation records could reveal that the mine subsi-

dized an employee’s treatment for a work-related injury

that it had not reported in a 7000-1 report. Personnel

Nos. 12-2316 & 12-2460 15

records, such as timesheets or other records of the hours

employees had worked, would enable MSHA to

ensure that it used the correct total work hours in cal-

culating Incidence Rates and Severity Measures. (This

too is important, for mines could artificially lower their

Incidence Rates and Severity Measures by reporting

more worked hours than were actually worked. Both

measures are calculated by dividing by work hours.)

The agency’s explanatory preface issued when section

50.41 was first promulgated confirms that the agency

(then known as MESA) intended the broad language of

section 50.41 to authorize demands such as these:

Section 50.41 requires operators to allow MESA to

inspect or copy any information the agency thinks

may be relevant and necessary for verification of

reports or for determination of compliance with

Part 50. In effect, it allows MESA to copy company

medical records, employment records, and other com-

pany information.

MESA believes that this provision is necessary if it is

to be able to develop epidemiological data essential

to development of effective health standards. It is also

necessary if MESA is to be able to discover instances

of intentional violation of statutory or regulatory re-

quirements. It will allow MESA to control the data

flow, rather than depend on operator filtered records.

42 Fed. Reg. 55568, 55569 (1977). We agree. The medical

and personnel records are relevant and necessary for

MSHA to determine whether the mines are complying

with the reporting requirements of part 50.

16 Nos. 12-2316 & 12-2460

Our analysis is not altered by Sewell Coal Co. v. Secretary

of Labor, an early decision in which an administrative

law judge held that section 50.41 did not authorize

MSHA to inspect certain employee records, including

medical and personnel records similar to those de-

manded here. 1 FMSHRC 864, 869-73 (1979). Although

the ALJ’s analysis and decision support petitioners’

arguments here, we are not bound by, nor need we

defer to, that ALJ’s decision, as it is not the “agency’s

construction of the statute which it administers.” See

Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 842-43 (1984); see also Olson v. Fed. Mine

Safety & Health Review Comm’n, 381 F.3d 1007, 1014 (10th

Cir. 2004) (under Mine Safety Act, ALJ’s “decision is not

entitled to deference, however, because the Commission

did not review the ALJ’s decision, and the decision is

therefore not binding precedent under the Commission’s

rules,”), citing 29 C.F.R. § 2700.72 (currently 29 C.F.R.

§ 2700.69(d)) (“A decision of a Judge is not a precedent

binding upon the Commission.”).

Nevertheless, we recognize that the ALJ gave serious

consideration to the problem, and we can and should

consider the merits of his reasoning. The reason that

Sewell Coal is not persuasive is that the ALJ’s decision

rested on constitutional avoidance grounds that are no

longer pertinent. The ALJ determined that neither

section 50.41 nor section 813 of the statute permitted

MSHA to inspect the records without a warrant because he

interpreted both sections in a way that he intended to

avoid any potential conflict with the Constitution. Sewell

Coal, 1 FMSHRC at 871, 873. Sewell Coal, however, came

Nos. 12-2316 & 12-2460 17

before the Supreme Court held in Donovan v. Dewey that

MSHA may conduct warrantless inspections under the

Mine Safety Act and that such inspections do not offend

the Fourth Amendment. 452 U.S. 594, 602-06 (1981). The

Supreme Court’s reasoning in Donovan altered the con-

stitutional analysis applicable to MSHA inspections. We

analyze the constitutionality of the record demands in light

of Donovan and other cases below when we consider the

mine operators’ and miners’ Fourth Amendment chal-

lenges. On the issue of statutory and regulatory authority,

though, Donovan undermined the reasoning of Sewell Coal.

2. Validity of Section 50.41 Under the Mine Safety Act

Since section 50.41 authorizes MSHA to demand the

records at issue here, we now turn to the statutory

validity of section 50.41 as a regulation implementing

the Mine Safety Act. The mine operators and miners

argue that, even if section 50.41 authorizes the demands,

they still exceed the bounds of authority given to

MSHA in the Mine Safety Act because section 813 cannot

be read to permit MSHA to require mines to produce

employee medical and personnel records.

We disagree. We read section 813, particularly sub-

sections 813(a) and 813(h), to authorize MSHA to promul-

gate a regulation that requires mine operators to permit

MSHA to review files that are relevant for verifying

compliance with other reporting requirements. Because

section 50.41 is a regulation promulgated by the

Secretary under the authority of the Mine Safety Act, we

apply the Chevron two-step analysis to determine whether

18 Nos. 12-2316 & 12-2460

the regulation and the demands it authorizes are a per-

missible construction of the statute. See Chevron, 467

U.S. at 842-43.

First, we consider whether “Congress has directly

spoken to the precise question at issue,” here, whether

the Secretary may promulgate a regulation and interpret

it to require mine operators to produce employee

records that they are not otherwise required to maintain

but that are necessary or relevant for MSHA to verify com-

pliance with other reporting requirements. Chevron, 467

U.S. at 842-43. If the Mine Safety Act clearly addresses

this question, then we must “give effect to the unam-

biguously expressed intent of Congress.” Id. If the Act

does not directly answer the question, we consider

whether the Secretary’s answer — that she is so

authorized — is “arbitrary, capricious, or manifestly

contrary to the statute.” Chevron, 467 U.S. at 844.

Section 813 is the source of MSHA’s broad inspection

power under the Mine Safety Act. Specifically, section

813(a) grants MSHA broad authority to inspect and

investigate mines for several purposes, including:

obtaining, utilizing, and disseminating information

relating to health and safety conditions, the causes

of accidents, and the causes of diseases and physical

impairments originating in such mines, . . . and deter-

mining whether there is compliance with the manda-

tory health or safety standards or with any citation,

order, or decision issued under this subchapter

or other requirements of this chapter.

30 U.S.C. § 813(a).

Nos. 12-2316 & 12-2460 19

Related to this inspection authority, section 813(h)

imposes duties on mine operators to provide reports,

keep records, and provide information on demand of the

Secretary:

In 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).

In the first step of Chevron analysis, the statutory lan-

guage does not directly tell us whether MSHA may

require mines to produce employee records, beyond

those they are already required to maintain, to verify

reporting compliance, as section 50.41 authorizes.

Certainly section 813(h) unambiguously requires mines

to provide MSHA with records, reports, and informa-

tion beyond what mines are otherwise required to main-

tain. The sentence’s opening clause makes clear that

the reporting requirements under that section are “[i]n

addition to such records as are specifically required by

this chapter.” But the question here is a little more

specific: whether MSHA can require mines to produce

employee records, beyond those required to be main-

tained, for the purpose of verifying other reporting require-

ments, as section 50.41 permits. Section 813(h) provides

that MSHA may “reasonably require” mines to produce

non-required records when the additional informa-

20 Nos. 12-2316 & 12-2460

tion would enable MSHA “to perform [its] functions”

under the Act. This text permits MSHA to make infor-

mation demands for a wide range of purposes — any

reasonable requirement that would help MSHA fulfill

the purposes of the Mine Safety Act. There is a little

room for reasonable argument about whether the

statute authorizes MSHA more specifically to require

mines to provide documents that would verify com-

pliance with other reporting requirements.

The statute certainly does not forbid MSHA’s actions,

but for purposes of argument, therefore, we will

proceed to the second step of Chevron analysis and de-

termine whether the Secretary’s position is a “permis-

sible construction” of the statute. 467 U.S. at 843. We

find that it is. Section 813(h) permits MSHA to require

mines to produce documents not otherwise required

to be maintained as long as it does so “reasonably” and

in order to “enable [it] to perform [its] functions under

the Act.” Section 50.41 and the document demands here

are well within those bounds. First, it is reasonable for

MSHA to require mines to provide information to

verify required reports. To preclude MSHA from doing

so would reduce the value of the required reports. More-

over, the specific demands made here are limited in

scope, manner, and time. Their scope is tailored to

include only information that would be needed to verify

compliance with 7000-1 and 7000-2 reports (informa-

tion related to accidents, injuries, illnesses, and total

employee work hours). The manner is reasonable, for

MSHA is demanding only to inspect and copy the

relevant records, not to rummage through mine offices.

Nos. 12-2316 & 12-2460 21

The time limits are reasonable, covering records from

only one year.

Second, MSHA’s functions under the Act include veri-

fying the accuracy of required reports. Verifying com-

pliance with the Mine Safety Act and relevant regula-

tions is one of the express purposes for which sec-

tion 813(a) authorizes MSHA to inspect and investigate

mines. These document demands do just that — enable

MSHA to verify the accuracy of mine injury reports.

Since section 813 gives MSHA the authority to make

reasonable records demands that it deems necessary

to fulfill its purposes under the statute (which expressly

include verifying compliance), section 50.41 and the

demands here fall within the limits on MSHA’s

authority imposed by section 813. MSHA’s interpreta-

tion that the Act permits section 50.41 and these

demands is certainly not “arbitrary, capricious, or mani-

festly contrary to the statute.” Chevron, 467 U.S. at 844.

Petitioners point to a new bill in the House of Represen-

tatives that would amend the Mine Safety Act to give

MSHA express subpoena powers, as evidence that the

current statutory language does not permit the record

demands at issue here. See Robert C. Byrd Mine Safety

Protection Act of 2013, H.R. 1373 113th Cong. § 102

(amending Mine Safety Act to give MSHA general sub-

poena power). Citing a statement by the bill’s sponsor,

petitioners argue that the proposed extension of general

subpoena power is intended to address the “[p]roblem

[that] MSHA lacks subpoena power for investigations

and inspections.” See Committee on Education and

22 Nos. 12-2316 & 12-2460

the Workforce Democrats, H.R. 1373: The Robert C.

Byrd Mine Safety Protection Act of 2013, at

http://democrats.edworkforce.house.gov/bill/robert-c-byrd-

mine-safety-protection-act-2013 (last visited April 24,

2013). Petitioners argue that this proposed legislation

highlights the fact that MSHA currently lacks such

power. We are not persuaded. This legislative attempt

to expand MSHA’s powers does not require us to

interpret its existing powers narrowly. There are plenty

of possible reasons to propose such legislation besides

an understanding that MSHA currently could not

demand the records here. The fact that this issue is

being litigated in these petitions for review could prompt

MSHA or others to undertake legislative efforts to

clarify and support its understanding of its powers. The

proposed legislation does not change our determination

that the current statutory text supports MSHA’s

actions here.

Before concluding the Chevron discussion, we note

that petitioners argue that Chevron deference is inap-

propriate in this case because MSHA has held incon-

sistent positions as to whether the Mine Safety Act autho-

rizes the record demands. We are not persuaded. First,

as a matter of law, “inconsistency is not a basis for de-

clining to analyze the agency’s interpretation under

the Chevron framework.” National Cable & Telecommunica-

tions Ass’n v. Brand X Internet Services, 545 U.S. 967, 981

(2005). Second, as a matter of fact, petitioners have not

shown that the agency’s position has been inconsistent.

As evidence of inconsistency, petitioners rely on a letter

written by Edward Clair, the Associate Solicitor for

Nos. 12-2316 & 12-2460 23

Mine Safety and Health, to the National Stone Associa-

tion in 1987. The letter responded to an inquiry about

“the limits on MSHA’s legal authority to examine

‘payroll and personal files containing medical and other

information not required to be maintained by Part 50.’ ”

Joint App. 75. Petitioners read portions of the letter

as limiting MSHA’s authority to inspect personnel

files to those records required to be maintained under

Part 50. But the letter concluded: “MSHA in Part 50

audits routinely seeks access to information related to

accidents and injuries which the Agency believes is

relevant and necessary to verification of compliance

with Part 50. It is our position that as long as these

audits do not constitute the ‘wholesale’ warrantless

search proscribed [by a recent decision of the Commis-

sion, Sewell Coal Co. v. MSHA, 1 FMSHRC 864 (1979),

discussed above], they are entirely permissible.” Joint

App. 76-77. We read the 1987 letter as actually consistent

with MSHA’s current position.

3. Petitioners’ Other Objections

Petitioners object to this reading of the statute and

regulations on two other grounds: (1) that under

section 813(h) MSHA can reasonably require records

“from time to time” only by promulgating a regulation

via notice-and-comment rulemaking, and (2) that MSHA

cannot rely on section 50.41 to authorize the demands

because section 50.41 itself was not properly promul-

gated. Neither of these objections is persuasive.

First, the argument that section 813(h) requires notice-

and-comment rulemaking before any set of records or

24 Nos. 12-2316 & 12-2460

information falls under its scope does not make a dif-

ference here. MSHA (actually, its predecessor MESA)

did in fact promulgate a regulation specifically stating

that mines must make certain records available for in-

spection: section 50.41 itself. Moreover, section 813(h)

does not indicate that MSHA must promulgate a

specific regulation via notice-and-comment rulemaking

any time it wishes to make records subject to section

813(h). The section does not say MSHA “may reasonably

require through rulemaking” but instead says only

“from time to time.” We interpret the phrase as more

likely to mean that demands may be made from time

to time.

On this point, both sides claim support from a par-

ticular episode in the legislative history: that Congress

enacted the Mine Safety Act without language present

in earlier bills requiring operators to maintain records

“pursuant to regulations issued by the Secretaries.” See

H.R. Conf. Rep. No. 95-655, at 45 (1977), reprinted in 1977

U.S.C.C.A.N. 3485, 3493. The Senate committee report

stated that the language was removed “because the

conference substitute provides elsewhere for certain

necessary recordkeeping,” an explanation that does not

add much to either side’s argument. We read the plain

text of the statute as not requiring MSHA to promulgate

specific rules whenever it wants to be able to make rea-

sonable demands for records under section 813(h). Even

if it were required to do so, it has met that obligation

with section 50.41.

Second, it is far too late to challenge the validity of

section 50.41 with an argument that the Secretary did not

Nos. 12-2316 & 12-2460 25

adequately explain the rationale for the regulation.

Upon promulgating a rule, agencies must provide a

“concise general statement” of the basis and purpose of

the rule. 5 U.S.C. § 553(c). The Mine Safety Act requires

that any court challenges to the validity of a regulation

be brought within sixty days of the rule’s promulgation.

30 U.S.C. § 811(d). Section 50.41 was promulgated

on December 30, 1977.

For all these reasons, we find that the Mine Safety Act

and relevant regulations authorize MSHA to require

mine operators to permit MSHA to review the em-

ployee medical and personnel records demanded here.

B. Fourth Amendment

Petitioners also challenge the record demands on

Fourth Amendment grounds. The mine operators argue

that the demands violate their right to be free

from warrantless searches, seeking to distinguish these

demands from the warrantless mine inspections per-

mitted under Donovan v. Dewey, 452 U.S. 594 (1981). The

miners argue that the demands invade their personal

privacy. Although the mine operators have framed the

issue primarily in terms of warrantless searches, we

conclude that the record demands are best understood,

in constitutional terms, as administrative subpoenas. The

document demands do not violate mine operators’

Fourth Amendment rights because they are limited in

scope and reasonably necessary to keep mines safe. The

demands also do not violate miners’ Fourth Amendment

rights because MSHA is legally constrained (and

26 Nos. 12-2316 & 12-2460

took precautionary measures) to keep miners’ medical

information confidential. Miners’ interest in keeping

their private information out of the wrong hands is out-

weighed by the government’s interest in MSHA’s

purpose — miner safety and health.

1. Mine Operators

Petitioners argue that the record demands here are

warrantless searches and prohibited by the Fourth Amend-

ment. A government agency typically must secure a

warrant before conducting a search of commercial prem-

ises or a business. See v. City of Seattle, 387 U.S. 541

(1967). A warrant is not always necessary, though, to

search a business operating in a pervasively regulated

industry because businesses in those industries have

lower expectations of privacy. New York v. Burger,

482 U.S. 691, 702 (1987) (in closely regulated industries,

“where the privacy interests of the owner are weakened

and the government interests in regulating particular

business are concomitantly heightened, a warrantless

inspection of commercial premises may well be rea-

sonable within the meaning of the Fourth Amendment”);

United States v. Biswell, 406 U.S. 311 (1972); Colonnade

Catering Corp. v. United States, 397 U.S. 72 (1970).

In Donovan v. Dewey, the Supreme Court held that

mining falls into this category — it is so pervasively

regulated that it should be excepted from the warrant

requirement for the purposes of regulating mine safety.

The Court observed that the 1977 Mine Safety Act regu-

lated “industrial activity with a notorious history of

Nos. 12-2316 & 12-2460 27

serious accidents and unhealthful working conditions,”

and that the Act’s regulation of mines “is sufficiently

pervasive and defined that the owner of such a facility

cannot help but be aware that he ‘will be subject to ef-

fective inspection.’ ” 452 U.S. at 602-05, citing Biswell,

406 U.S. at 316. The Court upheld the Mine Safety

Act’s scheme of warrantless inspections of surface and

underground mines.

Donovan is highly instructive but does not fully

answer the Fourth Amendment question here, for

Donovan concerned physical safety inspections of mines,

not demands for production of medical and personnel

files in mine custody. While Donovan found that the

mining industry is sufficiently regulated to justify an

exception from the warrant requirement, the fact that

these document demands occur in the context of a perva-

sively regulated industry does not end the inquiry.

Warrantless searches of pervasively regulated industries

must still be reasonable. Burger, 482 U.S. at 702.

In determining whether a warrantless search of a

closely-regulated enterprise pursuant to a regulatory

scheme is reasonable, the Supreme Court has taught

that such a search is reasonable if it satisfies three ele-

ments: the government has a substantial interest in the

regulatory scheme prompting the search, a warrantless

search is necessary to accomplish the goals of the reg-

ulatory scheme, and the regulatory scheme provides

enough certainty and regularity to put business

operators on notice and to limit individual agent dis-

cretion. See Burger, 482 U.S. at 701-03.

28 Nos. 12-2316 & 12-2460

Although the parties have briefed the issue primarily

in terms of warrantless searches, the distinct differences

between the document demands here and unannounced

physical inspections, as in Donovan or Burger, persuade

us that the Fourth Amendment issues are better under-

stood in terms of the law applicable to administrative

subpoenas. In essence, what section 50.41 permits is not

an intrusion in which government inspectors them-

selves open file cabinets and examine computer hard

drives, but rather an administrative subpoena that

requires mine operators to allow MSHA inspectors to

review and keep copies of the records. The record

demands meet the Fourth Amendment requirements

for administrative subpoenas.

a. The Nature of MSHA’s Record Demands

Petitioners argue that the record demands here run

afoul of the Fourth Amendment protections for com-

mercial enterprises. The record demands here, however,

are of a different nature than the challenged searches

in the Supreme Court’s cases delineating the Fourth

Amendment’s protections for closely-regulated indus-

tries. Most of those cases address physical inspections

of commercial premises. See, e.g., Burger, 482 U.S. at 712

(inspection of vehicle identification numbers at junk-

yard was excepted from warrant requirement after

owner refused to permit officers to review his vehicle

records); Donovan, 452 U.S. at 602 (warrantless physi-

cal inspection of mine for apparent safety violations

as authorized by Mine Safety Act did not violate

Nos. 12-2316 & 12-2460 29

Fourth Amendment); Marshall v. Barlow’s, Inc., 436 U.S.

307, 322-25 (1978) (entry into electrical and plumbing

installation business to inspect for workplace safety

conditions by OSHA inspector required warrant).

In this case, however, MSHA is not seeking to require

mine operators to permit inspectors to enter mine opera-

tors’ private offices and search through mine operators’

file cabinets and computer files. Rather, MSHA seeks

only to require the mine operators to provide certain

documents. It is up to the mine operators them-

selves to search for, review, identify, and produce the

responsive documents. For Fourth Amendment pur-

poses, therefore, such demands are administrative sub-

poenas rather than physical searches carried out by

government agents. See Oklahoma Press Pub. Co. v. Walling,

327 U.S. 186, 195 (1946) (subpoenas requiring news-

paper publishing companies to produce specified rec-

ords that would determine compliance with Fair Labor

Standards Act were not searches for Fourth Amendment

purposes: “the records in these cases present no question

of actual search and seizure, but raise only the question

whether orders of court for the production of specified

records have been validly made”); RSM, Inc. v. Buckles,

254 F.3d 61, 63, 69 (4th Cir. 2001) (“demand letters” from

ATF requiring firearms licensees to “submit information

concerning their firearms purchases and sales for the

past three years” were “analogous to [ ] administrative

subpoena[s]” and met the Fourth Amendment’s require-

ments for such subpoenas).

Although the Mine Safety Act does not expressly refer

to MSHA’s document review power as the power to

30 Nos. 12-2316 & 12-2460

issue an “administrative subpoena,” the authority the

Act confers upon MSHA amounts to an administrative

subpoena in substance. It is the authority to inspect

and copy specific documents in the possession of mine

operators and the authority to issue citations and

orders and impose penalties if mine operators do not

cooperate. It is true that most administrative subpoenas

are not self-executing, meaning that the agency cannot

seek penalties for non-compliance until after a judicial

officer has ordered compliance. But here, as we discuss

further below, the Act provides mine operators with a

variety of tools with which to defer and mitigate the

imposition of penalties, thus mitigating the extent to

which MSHA’s document inspection demands may be

more coercive than ordinary administrative subpoenas.

For purposes of our Fourth Amendment analysis,

we look to the substance of MSHA’s inspection power

rather than how the Act nominally refers to those powers.

And the power at issue here more closely resembles

an administrative subpoena than a search or a seizure.

A subpoena also implicates the Fourth Amendment, but

only to the extent of requiring that the demand for in-

formation be “sufficiently limited in scope, relevant in

purpose, and specific in directive so that compliance

will not be unreasonably burdensome.” See v. City of

Seattle, 387 U.S. 541, 544 (1967). The record demands

here satisfy these criteria.

First, the record demands are sufficiently limited in

scope. The records demanded are limited to those that

are necessary for MSHA to determine compliance

Nos. 12-2316 & 12-2460 31

with 7000-1 and 7000-2 reports: personnel records to

verify employee hours work and medical records to verify

accurate injury and illness reporting. The demands

are narrowly written so as to not require mine operators

to produce records that would not aid MSHA in

verifying compliance with Part 50 reporting require-

ments. Moreover, the demands cover relevant records

from only one year. In light of these limits, the demands

meet the first prong of the Fourth Amendment’s require-

ments for administrative subpoenas.

Second, the record demands are relevant to the goals

of the statutory scheme and the government’s interest

in miner safety. Congress has articulated a strong gov-

ernment interest in mine safety that drives the system

of Part 50 audits and these demands for documents

to verify compliance with other important regulatory

requirements. When Congress passed the Mine Safety

Act in 1977, it responded to a pressing need for tighter

safety regulation of mines. See Donovoan, 452, U.S. at 602

(“it is undisputed that there is a substantial federal

interest in improving the health and safety conditions

in the Nation’s underground and surface mines,” and

“Congress was plainly aware that the mining industry

is among the most hazardous in the country”).

The importance of miner safety remains strong today.

Unfortunately, we need only look to the twenty-nine

miners who died in the 2010 disaster at the Upper Big

Branch mine — the “deadliest coal mine disaster this

nation has experienced in forty years.” See A Tragic

Anniversary: Improving Safety at Dangerous Mines

32 Nos. 12-2316 & 12-2460

One Year After Upper Big Branch: Hearing Before the

S. Comm. on Health, Education, Labor and Pensions,

112th Cong. 1 (2011) (statement of Joseph A. Main at 1,

Assistant Secretary of Labor for Mine Safety and Health).

An MSHA briefing following the Upper Big Branch

accident reveals the importance of accurate reporting

of safety violations. MSHA reported that in the years

preceding the accident, the number of safety violations

and citations for Upper Big Branch mine had increased

and were “not only [ ] more numerous than average,

they [were] also more serious.” Briefing by Department

of Labor, Mine Safety and Health Administration on

Disaster at Massey Energy’s Upper Big Branch Mine-

South at 4 (April 5, 2010). These numerous and serious

violations would have put Upper Big Branch into a

“pattern of violation” status (thus permitting heightened

scrutiny) in the year before the accident, but for an error

in MSHA’s reporting system. Although this computer

error was a different kind of error than deliberate or

unintentional under-reporting of injuries on 7000-1 forms,

the error tragically illustrates the importance of ensuring

accurate reports of injuries and illnesses. Artificially

low injury rates and severity measures can cause MSHA

to miss mines that should otherwise be in POV status

and subject to more rigorous inspection and regulation.

Finally, the record demands are specific enough that it

will not be unreasonably burdensome for mine oper-

ators to comply with the demands. The letters MSHA

sent to mine operators specifically listed the documents

to be reviewed (e.g., “All payroll records and time sheets

Nos. 12-2316 & 12-2460 33

for all individuals working at your mine for the covered

time period,” Joint App. 32), and listed specific examples

of the types of documents included in the demand:

All medical records, doctor’s slips, worker compensa-

tion filings, sick leave requests or reports, drug

testing documents, emergency medical transportation

records, and medical claims forms in your posses-

sion relating to accidents, injuries, or illnesses that

occurred at the mine or may have resulted from

work at the mine . . . .

Id. These demands are quite specific with regard to the

type of records demanded (medical and payroll).

While the medical record demand may require mine

operators to sort between relevant and irrelevant

medical records, the demand provides specific enough

guidance so that any such sorting should not unrea-

sonably burden mine operators. The demand sets a

clear standard for which medical records are relevant:

accidents, injuries, or illnesses, that occurred at the mine

or may have resulted from work at the mine. Sorting

between relevant and irrelevant medical records with

this guidance should not be burdensome for mine opera-

tors, who are usually quite familiar with mine injuries

and illnesses.

Thus, although the petitioners ask us to invalidate

these demands as warrantless inspections offensive to

the Fourth Amendment, we find that they are in sub-

stance administrative subpoenas and they satisfy the

Fourth Amendment’s requirements for such subpoenas.

34 Nos. 12-2316 & 12-2460

2. Miners

In addition to the mine operators, the intervening

miners also challenge the validity of the document de-

mands on Fourth Amendment grounds, arguing that

they have a constitutionally protected privacy interest

in their personal medical records and that the regula-

tory mechanisms used by MSHA violate their Fourth

Amendment rights by “attaching legal jeopardy to a

refusal to produce confidential records without a prior

opportunity for judicial review.” Br. for Petitioners

Bickett, et al., at 36.

We recognize the gravity of this concern. Medical

records can contain some of the most private informa-

tion about a person. Any scheme that puts those records

in the hands of strangers, even a government agency, is

a serious matter. Even though the demanded records

are limited to those related to injuries and illnesses suf-

fered due to mine work, we recognize that these records

could reveal employees’ medical history unrelated to

mine work. For example, doctor’s slips may contain

information about multiple conditions, including condi-

tions unrelated to mine work, and mine operators may

choose to permit MSHA to inspect an entire file of

medical records without first having mine personnel

sort between relevant and irrelevant records.

Courts recognize that private medical records warrant

some privacy protection under the Fourth Amendment.

See Whalen v. Roe, 429 U.S. 589, 599-604 (1977) (acknowl-

edging Fourth Amendment may protect “zone of pri-

vacy,” which includes protection of “the individual

Nos. 12-2316 & 12-2460 35

interest in avoiding disclosure of personal matters”);

United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577

(3d Cir. 1980) (“[t]here can be no question that an em-

ployee’s medical records, which may contain intimate

facts of a personal nature, are well within the ambit of

materials entitled to privacy protection,” generally

basing this entitlement to privacy protection in a “not yet

[ ] delineated” constitutional right to privacy as discussed

in Whalen, 429 U.S. at 599-600).

The extent of the Fourth Amendment’s protection in

this area is not clear. In Anderson v. Romero, 72 F.3d 518

(7th Cir. 1995), we traced the history of the “legal concept

of privacy” and noted that the “right to conceal one’s

medical history is readily derivable from the branch of

the tort of invasion of privacy” in the common law,

but that “[n]othing in the Fourth Amendment . . . bears

directly on the interest in the privacy of one’s medical

records.” Id. at 521-22. We found the best indication of

such a right in Whalen and the cases that followed it,

but noted that Whalen was “very vague” on the possi-

bility of a constitutional right to the privacy of one’s

medical records. Id. at 522. (We ultimately held that

neither the common law invasion of privacy nor the

possible Fourth Amendment right to privacy of med-

ical records could support a cause of action by a state

prisoner against a prison officer who revealed to an-

other guard that the prisoner had AIDS).

This is not the case in which to sort out this doctrinal

ambiguity, as the record demands here do not come

close to invading any privacy protection the Fourth

36 Nos. 12-2316 & 12-2460

Amendment or the common law might offer. Cf. National

Aeronautics & Space Admin. v. Nelson, 131 S. Ct. 746, 756-57

(2011) (“as was our approach in Whalen, we will assume

for present purposes that the Government’s challenged

inquiries implicate a privacy interest of constitutional

significance,” holding that, “whatever the scope of this

interest,” it did not preclude the government from

asking questions about treatment or counseling for

illegal drug use on employment background question-

naires otherwise protected from unwarranted disclosure

by the Privacy Act), citing Whalen, 429 U.S. at 599, 605.

Any possible Fourth Amendment right to the privacy

of the miners’ medical records here is limited by the

fact that when MSHA sought to inspect and copy the

records, they were in the custody of the mines. In

holding that a bank customer held no Fourth Amend-

ment possessory interest in his bank records that the

bank provided to government officials, the Supreme

Court noted:

This Court has held repeatedly that the Fourth

Amendment does not prohibit the obtaining of

information revealed to a third party and conveyed

by him to Government authorities, even if the infor-

mation is revealed on the assumption that it will

be used only for a limited purpose and the con-

fidence placed in the third party will not be betrayed.

United States v. Miller, 425 U.S. 435, 443 (1976) (collecting

cases).

Our court has similarly applied this principle. In Young

v. Murphy, 90 F.3d 1225, 1236 (7th Cir. 1996), we affirmed

Nos. 12-2316 & 12-2460 37

the district court’s finding that qualified immunity pro-

tected investigators who inspected a deceased man’s

nursing home records, where his estate alleged that the

deceased’s Fourth Amendment rights were violated by

the inspection. We found that “no such [Fourth Amend-

ment] right has been clearly established,” and that the

estate alleged no facts showing that the deceased held

a possessory interest in the inspected records, as

“hospital records are typically the property of the

hospital rather than a patient.” Id. at 1236.

But some personal records are so private that, even

when entrusted to another, an individual retains some

amount of protection of the privacy of the records in

the third party’s custody. In Whalen, the Supreme

Court implicitly acknowledged the possibility of a right

against compulsory disclosure of a person’s medical

records to the government while upholding a New York

law that required doctors to file with the state copies

of every prescription for drugs deemed to have potential

for abuse. 429 U.S. at 599-604. This right is not absolute,

however. Whalen indicated that there are circumstances

in which the government may obtain access to private

personal records in third-party custody:

disclosures of private medical information to

doctors, to hospital personnel, to insurance com-

panies, and to public health agencies are often an es-

sential part of modern medical practice even

when the disclosure may reflect unfavorably on the

character of the patient. Requiring such disclosure to

representatives of the State having responsibility for the

38 Nos. 12-2316 & 12-2460

health of the community, does not automatically amount

to an impermissible invasion of privacy.

429 U.S. at 602 (emphases added).

Whether the government can require banks, medical

providers, or employers to turn over private medical

records of customers, patients, or employees that are

in their possession is a difficult question of balancing.

The Third Circuit provided excellent guidance for this

balancing in United States v. Westinghouse Electric Corp.,

in which it considered whether OSHA could require

an electric insulator manufacturing company to turn

over all of its employees’ medical records to determine

the possible health effects of mold used to produce the

insulators. 638 F.2d 570 (3d Cir. 1980). The court looked

to several factors to balance the government’s interest

in public health against the privacy interests of the em-

ployees. Those factors included:

the type of record requested, the information it does

or might contain, the potential for harm in any sub-

sequent nonconsensual disclosure, the injury from

disclosure to the relationship in which the record

was generated, the adequacy of safeguards to

prevent unauthorized disclosure, the degree of need

for access, and whether there is an express statutory

mandate, articulated public policy, or other recog-

nizable public interest militating toward access.

Id. at 578.

Based on our previous discussions, two of these

factors — the need for access and whether there are

Nos. 12-2316 & 12-2460 39

express statutory or regulatory mandates requiring

access — weigh in favor of MSHA’s access to the records.

Another of these factors — the precautions in place to

protect the information from unauthorized disclosure

to unintended parties — was emphasized by the Su-

preme Court in Whalen and seems especially significant

here. In Whalen the Court noted that the government

accumulates “vast amounts of personal information”

and that the “right to collect and use such data for

public purposes is typically accompanied by a con-

comitant statutory or regulatory duty to avoid unwar-

ranted disclosures.” 429 U.S. at 605.

Here, this factor weighs in favor of MSHA’s document

demands. The mechanism for collecting information

used here is accompanied by both statutory and

regulatory duties for MSHA agents to keep the records

confidential and avoid unwarranted disclosures. First,

like all federal officials handling personal information,

MSHA agents are bound by the Privacy Act not to

disclose any personal information and to take certain

precautions to keep personal information confidential.

5 U.S.C. § 552a(b) (“No agency shall disclose any

record which is contained in a system of records by any

means of communication to any person, or to another

agency, except pursuant to a written request by, or with

the prior written consent of, the individual to whom

the record pertains . . . .”); see also 5 U.S.C. § 552a(c)

(outlining accounting precautions agencies must take

with regard to personal information); U.S. Dep’t of Navy

v. Federal Labor Relations Auth., 975 F.2d 348, 350 (7th

40 Nos. 12-2316 & 12-2460

Cir. 1992) (reiterating Privacy Act’s requirement that

federal officials not disclose personal information with-

out consent).

Although there are exceptions to the Privacy Act’s

protection against disclosures, none of those excep-

tions change our determination. Some of the exceptions

permit disclosures that would not be unwarranted in

this circumstance. For example, exception (1) is for

officers of the agency who need the records. Excep-

tion (3) is for disclosures for the purpose the informa-

tion was collected. Exception (5) allows disclosure

without any identifying information for purposes of

statistical research. Exception (7) allows disclosure to

other jurisdictions for law enforcement. And excep-

tion (8) allows disclosure in compelling circumstances

“affecting the health or safety of an individual.” One

exception does not apply in this context: exception (6)

for the National Archives, where the record has suf-

ficient historical or other value. 1 See 5 U.S.C. § 552a(b).

The second exception allows disclosure of records

required to be disclosed under the Freedom of Informa-

1

Some of the exceptions would not be relevant for these

types of documents: exception (4) for the census bureau,

exception (9) for disclosure to Congress, and exception (12) for

disclosure to a consumer reporting agency. Finally, one excep-

tion would inherently provide sufficient protection of min-

ers’ privacy interests: exception (11) allows disclosure pursu-

ant to the order of a court of competent jurisdiction. 5 U.S.C.

§ 552a(b).

Nos. 12-2316 & 12-2460 41

tion Act (FOIA). See Pub. L. No. 89-554, 80 Stat. 378,

codified at 5 U.S.C. § 552 (FOIA); 5 U.S.C. § 552a(b)(2)

(Privacy Act’s second exception). The records demanded

here, however, are not subject to disclosure under

FOIA. They fall into FOIA’s sixth exemption, for “person-

nel and medical files and similar files the disclosure

of which would constitute a clearly unwarranted inva-

sion of personal privacy.” 5 U.S.C. § 552(b)(6); see also

U.S. Dep’t of Navy, 975 F.2d at 350. The medical records

at issue here easily pass both parts of the analysis

under FOIA exemption six. First, they are “personnel

and medical files and similar files,” and second, the

individual privacy concerns the records implicate out-

weigh FOIA’s purpose of “shed[ding] light on an

agency’s performance of its statutory duties.” U.S. Dep’t of

Defense v. Federal Labor Relations Auth., 510 U.S. 487, 497

(1994), citing U.S. Dep’t of Justice v. Reporters Committee

for BB8 Freedom of Press, 489 U.S. 749, 773 (1989); see also

Dep’t of Air Force v. Rose, 425 U.S. 352, 372 (1976) (exemp-

tion six “require[s] a balancing of the individual’s right

of privacy against the preservation of the basic pur-

pose of the Freedom of Information Act to open agency

action to the light of public scrutiny”) (internal quotation

marks omitted).

The records demanded here are medical records.

Absent extraordinary circumstances, it would be a viola-

tion of the miners’ privacy if the records were revealed

beyond the agency, and revealing individual miners’

medical or personnel information would not advance

public transparency of the operations of the Department

of Labor or MSHA. See Lakin Law Firm, P.C. v. F.T.C., 352

42 Nos. 12-2316 & 12-2460

F.3d 1122, 1124 (7th Cir. 2003) (“[P]ersonal identifying

information is regularly exempt from disclosure. And

that is as it should be, for the core purpose of the

FOIA is to expose what the government is doing, not

what its private citizens are up to.”); cf. Rose, 425 U.S. at

372 (case summaries of honor and ethics hearings in

the military were not within exemption six after

personal and other identifying information had been

deleted); U.S. Dep’t of Navy, 975 F.2d at 350 (union em-

ployees’ names and addresses would fall under FOIA’s

exemption six); Consumers’ Checkbook Center for the

Study of Services v. U.S. Dep’t of Health and Human

Services, 554 F.3d 1046, 1050-56 (D.C. Cir. 2009) (physicians’

Medicare receipts and financial records fall under ex-

emption six).

Beyond the protection of the Privacy Act, the Secretary

of Labor has adopted specific training and protocols

to ensure the confidentiality of personal information. The

Secretary implemented rules of conduct that require

department employees, managers, contractors, licensees,

certificate holders, and grantees to follow a set of rules

designed to minimize any accidental disclosure of

personal information (for example, not sharing

passwords, not uploading, downloading, or transferring

files with personal information, and immediately re-

porting theft). U.S. Dep’t of Labor, Office of Chief In-

formation Officer, Rules of Conduct and the Conse-

quences for Failure to Follow Rules Concerning the Safe-

guarding of Personally Identifiable Information (April 25,

2011), Joint App. 96. The document lays out consequences

for failure to follow the rules and has space

Nos. 12-2316 & 12-2460 43

for the employee and supervisor to sign and date

upon receipt of the policy and the related training.

The miners argue that these rules and protocols are

insufficient because the Secretary implemented them

after the initial records demands at issue here, but how

recently they were adopted is not relevant to our analy-

sis. We are convinced that any private medical or per-

sonnel information the Secretary or her agents obtain

pursuant to these audits will be adequately protected.

Thus, despite the personal nature of the medical

records demanded here, we find that the demands do

not violate miners’ privacy or Fourth Amendment

rights because the government’s need for the records

outweighs the miners’ privacy interest in the records, the

records are no longer in the miners’ custody, and

the Privacy Act and MSHA’s training and protocols

adequately protect against unwarranted disclosure by

MSHA agents. The warrantless demands for inspection

of these records do not violate the Fourth Amendment

rights of either the mine operators or the miners.

C. Due Process and Penalties

Petitioners and amicus National Mining Association

argue that the audit scheme violates mine operators’ due

process rights because it permits MSHA to impose

daily penalties on mines not complying with the

record demands before any opportunity for judicial

review of the violations or demands.

MSHA proposed daily penalties for one mine, Peabody

Midwest, after it failed to comply with the failure-to-

44 Nos. 12-2316 & 12-2460

abate citations under 30 U.S.C. § 814(b) that MSHA

issued when the mine refused to provide the documents.

If a mine fails to correct a violation cited under section

814(b), section 815(b) authorizes the Secretary, through

MSHA, to propose a penalty, and MSHA proposed pen-

alties of $4,000 per day on Peabody Midwest, which

were ultimately assessed. (Section 820(b) authorizes

the Commission to assess proposed penalties for failure

to correct a violation after a section 814(b) order.)

Section 815(b)(1)(A) provides mines the opportunity to

challenge the proposed assessment, in response to

which the Commission must hold a hearing, and

section 815(a)(1)(B) permits mines to request temporary

relief from penalties. In determining whether to propose

penalties, the statute directs the Secretary to consider:

“[1] the operator’s history of previous violations, [2] the

appropriateness of such penalty to the size of the

business of the operator charged, [3] whether the

operator was negligent, [4] the effect on the operator’s

ability to continue in business, [5] the gravity of the

violation, and [6] the demonstrated good faith of the

operator charged in attempting to achieve rapid compli-

ance after notification of a violation.” Section 815(b)(2)

accords with section 820(i), which instructs the Com-

mission to consider the same factors in deciding

whether to assess proposed penalties. § 820(i).

Congress intended this penalty scheme to provide

swift, strong consequences for mines that failed to

correct violations of mine safety rules and regulations.

In passing the Mine Safety Act, Congress noted that the

previous Coal Act’s weak penalty scheme permitted

Nos. 12-2316 & 12-2460 45

mines to pay their way through violations and citations,

and that Congress intended to strengthen the penalty

scheme to ensure that mines fully complied with

health and safety standards. The Senate Committee

Report noted:

The assessment and collection of civil penalties under

the Coal Act has also been a great disappointment to

the Committee. The Committee firmly believes that the

civil penalty is one of the single most effective mecha-

nisms for insuring lasting and meaningful compliance

with the law. . . . The Committee firmly believes that

to effectively induce compliance, the penalty must be

paid by the operator in reasonably close time proximity

to the occurrence of the underlying violation.

S. Rep. No. 95-181, at 15-16 (1977), reprinted in 1977

U.S.C.C.A.N. 3401, 3415-16.

In addition to emphasizing the importance of strong

penalties, the Senate committee also noted problems

with the previous and weaker penalty scheme:

Final determinations of penalties are not self-enforcing,

and operators have the right to seek judicial review

of penalty determinations, and may request a de novo

trial on the issues in the U.S. District Courts. This

encourages operators who are not predisposed to

voluntarily pay assessed penalties to pursue cases

through the elaborate administrative procedure and

then to seek redress in the Courts.

Id. at 16, 1977 U.S.C.C.A.N. at 3416. Thus, Congress

intended the scheme to allow MSHA to impose penalties

46 Nos. 12-2316 & 12-2460

with teeth, which would actually induce mines to

comply with MSHA’s orders when it found a mine vio-

lated a health or safety rule.

Petitioners and amicus National Mining Association

argue that this scheme impermissibly forces mine opera-

tors into an impossible choice — either they submit to

violations of mine operators’ and mine employees’

privacy by allowing inspection of the records or they

face staggering penalties that accumulate daily — all

before review by an Article III court. They base this

argument on Ex parte Young, 209 U.S. 123, 146-49 (1908).

The Young case is best known these days for authorizing

suits against state officials to require them to comply

with federal law, despite the Eleventh Amendment to

the Constitution. Here, however, we consider Young for

its more specific facts.

The Supreme Court held unconstitutional a state statute

that set railroad rates one-third lower than the going rates

at the time, and that also imposed hefty financial and even

criminal penalties for any person or corporation not

abiding by the statutory rates. The Court noted: “[W]hen

the penalties for disobedience are by fines so enormous

and imprisonment so severe as to intimidate the company

and its officers from resorting to the courts to test the

validity of the legislation, the result is the same as if the

law in terms prohibited the company from seeking

judicial construction of laws which deeply affect its

rights.” 209 U.S. at 147. Petitioners and amicus National

Mining Association argue that the penalty scheme here

is similarly flawed because, for mine operators to

Nos. 12-2316 & 12-2460 47

challenge the validity of the demands in federal court,

they must violate the orders and submit to daily

penalties, which in this case have accumulated for over

a year.

We do not find the procedures for imposing penalties

here to be constitutionally flawed. As the Supreme

Court noted in Thunder Basin Coal Co. v. Reich, 510 U.S. 200

(1994), the Mine Safety Act’s procedures differ from the

rate-setting scheme in Ex parte Young in three important

respects. First, mine operators can contest and receive a

hearing on proposed penalties and orders before they

become final. See 30 U.S.C. § 815(b)(1)(A), (d). Second,

mine operators can request that the Secretary delay

imposing the penalties until further review. § 815(b)(2).

Third, penalties are not automatic, but rather within

the discretion of the Secretary to propose under

§ 815(b)(1)(B). See Thunder Basin, 510 U.S. at 217-18

(penalty scheme under Mine Safety Act does not in-

volve “prehearing deprivation” comparable to Ex parte

Young).

The mine operators here were able to take advantage

of this flexibility. They contested the order and received

a hearing before an ALJ, the Commission, and now this

court. The Secretary granted their request that MSHA

not assess any failure-to-abate penalties until after the

disposition of the hearing before the ALJ, and the Com-

mission granted the mine operators’ request to expedite

its review. Thus, we find that the penalties do not

violate the mine operators’ right to due process because

the statutory scheme offered opportunities both for

review and to mitigate the penalties.

48 Nos. 12-2316 & 12-2460

Another important distinction is that the imposition

of these penalties is discretionary, not automatic. The

Mine Safety Act directs the Secretary and the Commis-

sion to take several factors into consideration before

proposing and assessing penalties, including the size of

the operator, its ability to continue business, and the

gravity of the violation. 30 U.S.C. §§ 815(b)(2), 820(b)(2).

The Secretary exercised discretion here and demon-

strated appropriate fidelity to those factors. Of all the

mines that received failure-to-abate orders, the Secretary

ultimately imposed daily penalties on only one mine

operator — Peabody Midwest. See Joint App. 92. In

its letter notifying Peabody Midwest of the penalties,

MSHA explained the rationale for proposing penalties

according to all six criteria from section 815(b)(1), includ-

ing that Peabody Midwest had a history of violations,

that Peabody Midwest’s violations reflected an “inten-

tional decision not to comply” with the demands, and

that MSHA had no information indicating that the penal-

ties would put Peabody Midwest out of business. Id. at 93.

Thus, unlike the automatic penalties under the statute

in Ex parte Young, which included time in prison, the

Mine Safety Act requires the Secretary to consider the

appropriateness of imposing a given penalty before

proposing it, which provides an additional layer of

process to mine operators. This comports with cases in

which courts have found no Ex parte Young problem

where, instead of automatic penalties, penalties depend

on the party’s rationale for refusing to pay. Cf. Reisman

v. Caplin, 375 U.S. 440, 446-47 (1964) (tax statute

requiring witnesses or taxpayers to appear in court

Nos. 12-2316 & 12-2460 49

subject to contempt does not present Ex parte Young

problem because criminal sanctions and fines do not

apply when summonses are contested in good faith);

Solid State Circuits, Inc. v. EPA, 812 F.2d 383, 388-92 (8th Cir.

1987) (CERCLA’s treble damage penalty was not

due process violation because statute permits agency

not to impose penalty if party had “objectively rea-

sonable basis” for believing order supporting penalties

was “invalid or inapplicable,” even where no oppor-

tunity for prior administrative hearing).

The procedures for proposing and assessing the penalties

here under the Mine Safety Act did not violate mine

operators’ right to due process under the Fifth Amend-

ment.

D. Conflict With Other Laws

Petitioners and amicus National Mining Association

argue that the audit scheme is invalid because it conflicts

with other federal and state laws. They claim there

are conflicts with the Americans with Disabilities Act of

1990 (ADA), 42 U.S.C. §§ 12101 et seq., the Family and

Medical Leave Act of 1993 (FMLA), 29 U.S.C. §§ 2601

et seq., the Paperwork Reduction Act of 1980, 44 U.S.C.

§§ 3501 et seq., and Indiana and Illinois medical privacy

laws. We find no conflict between MSHA’s record de-

mands and any of these laws.

50 Nos. 12-2316 & 12-2460

1. Paperwork Reduction Act

Amicus National Mining Association argues that the

Paperwork Reduction Act limits MSHA’s authority to

impose paperwork collection burdens on mines. See

44 U.S.C. §§ 3506(c), 3507 (requiring agencies to present

estimates of burden of proposed paperwork collection

from public to the Office of Management and Budget

before making information requests). We lack jurisdic-

tion to consider the argument because it was not

raised before the Commission. See 30 U.S.C. § 816(a)

(“No objection that has not been urged before the Com-

mission shall be considered by the court, unless the

failure or neglect to urge such objection shall be ex-

cused because of extraordinary circumstances.”).

2. The ADA and the FMLA

Petitioners argue that requiring mine operators to

comply with the record demands here conflicts with

the ADA and the FMLA and may, under some circum-

stances, leave mine operators open to liability under

those acts. Regulations promulgated under the ADA

permit employers to use entrance medical examinations

to screen potential employees and to require medical

examinations of current employees to assess their ability

to perform job-related functions. 29 C.F.R. § 1630.14(b),

(c). The regulations require employees to treat the

results of these examinations as “confidential medical

record[s],” § 1630.14(b)(1), (c)(1), subject to three excep-

tions: for supervisors and managers who need to

make accommodations, for first aid and safety personnel

Nos. 12-2316 & 12-2460 51

if emergency treatment might be required, and for

“[g]overnment officials investigating compliance with

this part.” § 1630.14(b)(1)(i)-(iii).

Regulations promulgated under the FMLA include a

substantially similar provision: records and documents

relating to employee medical histories that employers

create or keep pursuant to the FMLA must be “main-

tained as confidential medical records.” 29 C.F.R.

§ 825.500(g) (tracking language from and refer-

encing ADA regulation 29 C.F.R. § 1630.14(b), (c)). The

FMLA’s confidentiality requirement contains excep-

tions for supervisors, managers, and first aid and

safety personnel that are identical to the ADA’s, and

another for “government officials investigating compliance

with FMLA (or other pertinent law[s]).” § 825.500(g)(1)-(3).

None of these provisions conflicts with or should

limit MSHA’s authority to inspect and copy medical

records here. These regulations merely state that if, in

the course of their duties under the ADA and the

FMLA, employers collect medical records on employees,

those records must be treated as confidential. In our

view, employee medical records that employers collect

pursuant to the ADA or the FMLA will be kept con-

fidential even if mine operators permit MSHA in-

spectors to inspect and copy them. As explained above,

we read section 813 of the Mine Safety Act and corre-

sponding regulation section 50.41 to permit MSHA

to require mine operators to allow MSHA to inspect and

copy employee medical records that may be relevant to

work-related injuries or illnesses. Such inspection and

52 Nos. 12-2316 & 12-2460

copying does not violate miners’ privacy, in part

because MSHA agents are bound by the Privacy Act to

prevent unwarranted disclosure of their contents. Both

of these holdings apply to all potentially relevant

employee medical records, whether they would other-

wise be subject to ADA or FMLA confidentiality require-

ments or not.

While the ADA’s exemption does not expressly extend

to “other pertinent law” as the FMLA’s exemption does,

the ADA regulations provide: “It may be a defense to a

charge of discrimination under this part that a chal-

lenged action is required or necessitated by another

Federal law or regulation . . . .” 29 C.F.R. § 1630.15(e). Thus,

because the Mine Safety Act requires mine operators

to permit MSHA agents to inspect and copy employee

medical records relevant to mine-related injuries or

illnesses, we see no conflict between the ADA’s confi-

dentiality requirement and MSHA’s demands here. If

in the future an agency responsible for enforcing the

ADA tried to take action against a mine operator for fol-

lowing MSHA’s orders to produce relevant documents,

our doors would be open to resolve such a dispute.

For either the ADA or FMLA regulations to supersede

MSHA’s power to inspect records under the Mine

Safety Act, the text of the ADA and the FMLA would

need to say explicitly that Congress intended to limit

the powers it had previously granted to MSHA. Neither

law contains such language. See National Ass’n of

Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662-63

(2007) (collecting cases to support rule of statutory con-

Nos. 12-2316 & 12-2460 53

struction that “repeals by implication are not favored

and will not be presumed unless the intention of the

legislature to repeal [is] clear and manifest,” holding

“[w]e will not infer a statutory repeal unless the later

statute expressly contradict[s] the original act,” and

noting further that “a statute dealing with a narrow,

precise, and specific subject is not submerged by a later

enacted statute covering a more generalized spectrum”)

(internal quotation marks omitted), citing Watt v.

Alaska, 451 U.S. 259, 267 (1981); Traynor v. Turnage, 485

U.S. 535, 548 (1988); Radzanower v. Touche Ross & Co., 426

U.S. 148, 153 (1976).

Further, given the respective contexts of the ADA

and FMLA’s confidentiality requirements, petitioners’

interpretation of those regulations is quite strained. It

would mean that one agency could unilaterally limit

other agencies’ ability to collect information needed for

their purposes. The FMLA, the more recent of the two

laws, is written to avoid this anomalous result. Compare

29 C.F.R. § 825.500(g)(3) (third exception permits con-

fidential records to be shared upon request with “Govern-

ment officials investigating compliance with FMLA (or

other pertinent law)” (emphasis added)), with 29 C.F.R.

§ 1630.14(b)(1)(iii) (ADA regulation permitting confidential

records to be shared with “Government officials investigat-

ing compliance with this part”). The better interpretation

is that the confidentiality requirements are added insur-

ance that employers do not violate employees’ privacy by

sharing their medical records with unauthorized parties.

But as we have already explained, sharing medical records

with MSHA in this case does not violate miners’ privacy,

54 Nos. 12-2316 & 12-2460

regardless of the purpose for which the mine operators

initially created or collected the records.

Finally, our analysis on this point is consistent with

the Health Insurance Portability and Accountability Act

of 1996 (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936,

which requires health care providers to keep medical

records confidential but contains exceptions for dis-

closures to government entities engaging in “public

health activities” and for disclosures by a “public health

authority that is authorized by law to collect or receive

such information for the purpose of preventing or con-

trolling disease, injury, or disability, including, but not

limited to, the reporting of disease [and] injury.” 45

C.F.R. § 164.512(b)(1)(i). This language aptly describes

MSHA’s role in these record demands — fulfilling its

statutory obligation to protect miner health and safety

by collecting information from mines regarding work-

related injuries and illnesses. See also 65 Fed. Reg. 82462-

01, 82624 (2000) (preamble to HIPAA regulations

noting “[w]e agree that OSHA, MSHA and their state

equivalents are public health authorities when carrying

out their activities related to the health and safety

of workers”).

For these reasons we find that neither the ADA nor

the FMLA limits MSHA’s authority to require mine

operators to permit MSHA agents to inspect and copy

employee medical and records that are reasonably

related to mine-related injuries and illnesses.

Nos. 12-2316 & 12-2460 55

3. State Laws

Petitioners make a similar argument with regard to

both Indiana and Illinois state laws — that they require

mine operators to keep employee medical files con-

fidential, and that complying with MSHA orders to

permit its agents to inspect and copy such files would

expose employers to liability. Petitioners point to

several Indiana and Illinois laws, including portions of

the Indiana Civil Rights Law, Ind. Code § 22-9-5-20(c)(2)

(requiring employers to treat medical information as “a

confidential medical record,” with exceptions mirroring

federal ADA, as part of prohibition of employment dis-

crimination based on disability); 910 Ind. Admin. Code

§ 3-3-11(b), (f), (i) (regulations including similar provi-

sions requiring medical information obtained by covered

entities to be treated as “confidential medical record”),

Illinois’ Genetic Information Privacy Act, 410 Ill. Comp.

Stat. 513/15, 40 (“genetic testing and information derived

from genetic testing is confidential and privileged,” and

providing right of action for violation of the Act), and

Illinois’ A.I.D.S. Confidentiality Act, 410 Ill. Comp. Stat.

305/9 (“No person may disclose or be compelled to

disclose the identity of any person upon whom a test is

performed, or the results of such a test in a manner

which permits identification of the subject of the test,

except to the following persons: . . . .”).

Our reasoning with regard to the ADA and the FMLA

also applies to these provisions. In addition, of course, the

alleged conflicts with these state law provisions could

not present a problem under federal law because the

56 Nos. 12-2316 & 12-2460

Mine Safety Act preempts any conflicting state law: “No

State law in effect on December 30, 1969 or which may

become effective thereafter shall be superseded by any

provision of this chapter or order issued or any manda-

tory health or safety standard, except insofar as such

State law is in conflict with this chapter or with any

order issued or any mandatory health or safety stan-

dard.” 30 U.S.C. § 955(a).

Petitioners argue that this section does not apply here

because the Part 50 audits are not “mandatory health

or safety standards.” We need not resolve that question.

Even if read as petitioners urge, the state laws would

still conflict with the orders MSHA issued to the mine

operators directing them to comply with the records

demands. Section 955(a) preempts state laws conflicting

with MSHA orders. In the event that an employer in

Illinois or Indiana is required to permit MSHA agents

to inspect and copy medical records that these laws

deem “confidential,” MSHA’s order directing the mine

operator to permit the inspection and copying would

preempt the state law.

In sum, we do not find MSHA’s record demands to

conflict with the federal and state laws as petitioners

and amicus National Mining Association argue. The

Mine Safety Act preempts state privacy laws in the

event of any conflict; the ADA and FMLA’s con-

fidentiality requirement would not be violated by dis-

closure to MSHA pursuant to these orders; and we do

not have jurisdiction to consider whether the demands

violate the PRA.

Nos. 12-2316 & 12-2460 57

III. Conclusion

The records that MSHA seeks from mine operators are

reasonably necessary for the agency to be able to fulfill

its responsibility to protect miner safety and health.

Without the records, significant numbers of mine-related

injuries and illnesses may go unaccounted for, and

mines operating under risky and hazardous conditions

may continue to do so without sanction. While the peti-

tioners raise important privacy concerns, Justice Holmes

reminded us to “remember that the machinery of gov-

ernment would not work if it were not allowed a little

play in its joints.” Bain Peanut Co. v. Pinson, 282 U.S. 499,

501 (1931). In light of the long history of mine acci-

dents and illness, Congress has given the Secretary and

MSHA powerful tools to protect miners. Those tools

include the demands to inspect documents at issue here.

The petitions for review are D ENIED.

4-26-13