33 F.4th 884
6th Cir.2022Background
- MSHA received an anonymous hazard complaint and sent inspectors to Paradise No. 9 (Kentucky) for an unannounced inspection; inspectors split between two portals and a dispatcher, Lance Holz, worked at the old portal.
- While monitoring a mine-phone, MSHA inspector Sparks heard an underground miner ask Holz, “do we have any company outside?” and (per Sparks) heard Holz reply, “yeah, I think there is.” Sparks identified himself and the miner did not respond; Sparks issued a citation to KenAmerican under 30 U.S.C. § 813(a) for providing advance notice of an inspection.
- The ALJ first granted summary judgment for KenAmerican (calling the exchange ambiguous), but the Federal Mine Safety & Health Review Commission reversed, remanded for a hearing, and after the hearing again reversed the ALJ’s credibility finding and remanded for penalty assessment.
- On remand the ALJ assessed an $18,742 penalty; that decision became final and KenAmerican sought review in the Sixth Circuit.
- The Sixth Circuit reviewed statutory interpretation de novo and factual findings for substantial evidence, upheld the Commission’s reading that § 103(a) can apply to mine operators, found substantial evidence that Holz’s statement amounted to advance notice, and rejected KenAmerican’s First Amendment challenge; petition denied.
Issues
| Issue | KenAmerican's Argument | Secretary's Argument | Held |
|---|---|---|---|
| Does § 103(a) prohibit mine operators from giving advance notice of MSHA inspections? | §103(a) by its wording restricts the Secretary and her agents only; it does not apply to mine operators. | The text and broader Mine Safety Act context show the advance-notice prohibition applies to "any person," including operators, enforced by civil penalties under §104 and criminal penalties under §110(e). | The Commission’s interpretation upheld: §103(a) can apply to mine operators; Court rejects KenAmerican’s narrow textual reading. |
| Did Holz’s statement (“I think there is”) give unlawful advance notice of an inspection? | The exchange was ambiguous and did not plainly give advance notice; ALJ credited Holz’s minimal-denial account. | Circumstantial evidence and Sparks’s experience support that the miner solicited and received encoded advance notice enabling concealment or correction before inspectors reached working areas. | Substantial-evidence standard satisfied: Commission’s factual finding that the statement conveyed advance notice is supported and upheld. |
| Is proof of intent required to establish a §103(a) violation? | KenAmerican argued intent matters to prove advance notice. | The Commission relied on the effect of the communication; if it conveys advance notice, violation is complete. | Court does not adopt a rule requiring specific intent for liability here; Commission found Holz understood and intended to answer the miner about MSHA presence. |
| Does §103(a) violate the First Amendment as a content-based speech restriction? | §103(a) is content-based and overbroad; strict scrutiny should invalidate it. | The law serves a compelling interest in mine safety and is narrowly tailored to prevent advance notice that would frustrate inspections. | Even under strict scrutiny, §103(a) survives: it is narrowly tailored to the compelling government interest in meaningful mine inspections. |
Key Cases Cited
- Pendley v. Fed. Mine Safety & Health Rev. Comm’n, 601 F.3d 417 (6th Cir. 2010) (standard of review for Commission orders)
- United States v. Am. Trucking Ass’ns, 310 U.S. 534 (1940) (apply clear statutory language to effect Congress’s intent)
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) (deference/administrative interpretation principles)
- Dean v. United States, 556 U.S. 568 (2009) (interpretive significance of passive voice)
- Abramski v. United States, 573 U.S. 169 (2014) (holistic statutory interpretation; read provisions in context)
- Donovan v. Dewey, 452 U.S. 594 (1981) (recognition of substantial federal interest in mine safety)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content-based speech scrutiny principles)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (laws targeting conduct that incidentally affect speech analyzed under intermediate scrutiny)
- Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) (intermediate-scrutiny framework for conduct-affecting-speech regulations)
- Broad. Music, Inc. v. Roger Miller Music, Inc., 396 F.3d 762 (6th Cir. 2005) (avoid statutory interpretations producing odd results)
- Nat’l Cement Co. v. Fed. Mine Safety & Health Rev. Comm’n, 27 F.3d 526 (11th Cir. 1994) (definition of substantial evidence)
- Keen v. Helson, 930 F.3d 799 (6th Cir. 2019) (statutory interpretation as a holistic endeavor)