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  • Writer's pictureSarah Ghiz Korwan, Esq.

Sixth Circuit Finds “Coded Language” Violates Advance Notice Standard, Not Protected as Free Speech

After ten years, the Sixth Circuit (finally) resolved a matter involving a citation alleging advance notice at an underground mine. The Sixth Circuit affirmed a decision by the Federal Mine Safety Health Review Commission (“Commission”), finding that a mine operator provided advance notice of an unscheduled MSHA inspection in April 2012. KenAmerican Res., Inc. v. Sec’y of Labor, 2022 WL 1483988 (May 11, 2022)

In this case, MSHA inspectors were visiting Paradise No. 9, a large underground mine in Mullenberg County, Kentucky, owned by KenAmerican Resources, Inc., on an anonymous complaint regarding potentially hazardous conditions. The mine has two portals, an “old” portal and a “new” portal, so the MSHA team of five inspectors split into two groups, with inspectors going to each portal. Because the inspectors arrived in the middle of a shift, the mine dispatcher at the “old” portal called for a miner to return to the surface with a mantrip. An unidentified miner underground picked up the call from the dispatcher and asked, “do we have any company outside?” The dispatcher responded, “I think there is”. Unbeknownst to the dispatcher, one of the MSHA inspectors at the “new” portal was monitoring a mine phone and could hear the conversation. The inspector asked miner who inquired about “company” to identify himself but received no response. Believing that the exchange between the miner and the dispatcher was an illegal attempt to tip the miner off about MSHA’s impending inspection, MSHA issued a citation under Section 103(a) of the Mine Act for providing advance notice of an inspection and assessed a civil penalty.

The operator contested the citation and the associated penalty. The ALJ granted summary judgment to KenAmerican, finding that the conversation between the dispatcher and the unidentified miner did not establish a violation because the conversation was ambiguous and the dispatcher’s response did not clearly constitute advance notice. The Secretary filed a petition for review and the Commission reversed the ALJ and remanded with instructions to hold a hearing.

At the hearing on remand, the inspector testified regarding the conversation he heard between the dispatcher and unidentified miner, and that dispatcher responded, “yeah, I think there is,” when asked if there was “company outside”. He further testified that he believed the dispatcher and miner were using a coded language which provided the miner advance notice of an MSHA inspection. The dispatcher testified that his response to the query regarding the presence of “company” was, “I don’t know,” but he also confirmed that “it’s possible” he said something else. Based on the testimony of the dispatcher, the ALJ vacated the citation. On appeal to the Secretary, the Commission again reversed the ALJ’s decision vacating the citation, finding that the ALJ abused his discretion in crediting the dispatcher’s testimony over the inspector’s. The Commission remanded the case to the ALJ to assess a civil penalty. After the ALJ assessed a penalty of $18,742, the operator sought discretionary review by the Commission, which was denied. The operator then appealed to the Sixth Circuit.

On appeal, the operator first argued that Section 103(a)’s ban of providing notice did not apply to mine operators and only applied to representatives of the Secretary. The operator also asserted that mine operators are “sufficiently deterred” from providing advance notice of inspections by section 110(e)’s criminal penalties and that Congress did not intend for mine operator’s to be subject civil citations for violating section 103(a). The Court rejected these arguments. First, the Commission noted that an interpretation that Section 103(a) did not apply to miner operators essentially required linguistical gymnastics and is “flatly inconsistent” with the plain language of the statute. In addition, such finding would lead to a non-sensical outcome for potential criminal penalties to be imposed for advance notice under Section 110(e), but not civil penalties under Section 103(a).

The operator also argued that Section 103(a)’s prohibition against providing advance notice violation First Amendment free speech rights because it is a content-based restriction on speech. However, the Court found that 103(a) survived strict scrutiny because it was narrowly tailored to serve a compelling government interest to protect the nation’s miners.

In light of this decision, we caution mine operators to avoid any communication which might be interpreted or perceived as alerting miners that MSHA is at the mine site for purpose of conducting a mine inspection. As always, feel free to contact us if you have any questions.

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