[00:00:01] Speaker ?:
Base number 18-1296, Westman Oil Boil Supply Company.

[00:00:47] Speaker 02:
All right, Mr. Walker.

[00:00:56] Speaker 03:
May it please the court, and good morning.

[00:00:58] Speaker 03:
My name is Vijay Walker.

[00:01:00] Speaker 03:
I represent the petitioner, respondent, I'm sorry, petitioner, Western Oil Builds Supply Company, DBA, Reign for Rent.

[00:01:08] Speaker 03:
There are two issues before court today.

[00:01:11] Speaker 03:
The first is whether the forcible entry in an unauthorized search

[00:01:16] Speaker 03:
of Rainn Florent's truck was lawful.

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The second issue is whether Rainn Florent had an employee who was performing services at the time of the inspection.

[00:01:28] Speaker 03:
The facts in this case are extremely important, so I'll be brief in describing those.

[00:01:33] Speaker 03:
The inspection was conducted by an agent of the Mine Safety Health Administration.

[00:01:38] Speaker 03:
I think you can be confident the panels read the facts.

[00:01:41] Speaker 03:
Thank you, Your Honor.

[00:01:44] Speaker 03:
On the two points, I'll address them in turn.

[00:01:46] Speaker 03:
The first, that IMCHA's forcible entry into Rainn Currant's truck violated the Fourth Amendment.

[00:01:54] Speaker 03:
There are two components to that argument.

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To understand the components, we must first look to the concept of a warrant, and look to the Supreme Court precedent, Donvin v. Dewey, in which the Supreme Court determined that the Mine Act, under which IMCHA was constituted,

[00:02:13] Speaker 03:
was an adequate substitute for a warrant under limited circumstances.

[00:02:20] Speaker 03:
The judge below, in this case, determined an operator's refusal of an inspection is forbidden.

[00:02:27] Speaker 03:
Our position is very simple, Your Honors.

[00:02:29] Speaker 03:
That is not consistent with Donovan v. Dewey.

[00:02:32] Speaker 03:
That is also not consistent with the precedent of this court, which has held, quote, the right to force IMFTA to go to court to gain entry.

[00:02:41] Speaker 03:
is a right that is recognized, as in the Carolina Stalight case.

[00:02:46] Speaker 03:
That right was denied here.

[00:02:49] Speaker 03:
There's no dispute that IMSA's entry into Rainforest's truck was forcible.

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It was done without notice or exigent circumstances.

[00:02:59] Speaker 03:
It was done when there was no imminent hazard present.

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And it was done, according to the inspector, when there was, quote, no immediate reason to conduct the inspection.

[00:03:10] Speaker 03:
Because the right to force IMSHA to seek judicial review was denied, the right itself violates the principles of Donovan v. D. The remedy for situations such as this.

[00:03:26] Speaker 02:
Can I ask you about that?

[00:03:27] Speaker 02:
Yes, Your Honor.

[00:03:28] Speaker 02:
I understand Donovan to say that the act prohibits forcible entry when entry is refused.

[00:03:38] Speaker 02:
That's the meaning of Donovan.

[00:03:40] Speaker 02:
In fact, those are the words of Donovan.

[00:03:41] Speaker 02:
Your entry was not refused.

[00:03:43] Speaker 02:
The person wasn't at the truck.

[00:03:46] Speaker 02:
And so there was an entry without advising the person, but it wasn't the kind of entry that Donovan's talking about.

[00:03:58] Speaker 02:
The statute that Donovan, or the provision that Donovan is talking about,

[00:04:04] Speaker 02:
is 818, which says a secretary of the Institute of Civil Action, whenever the operator or his agent hinders or delays the secretary or refuses to admit such representative, neither of which occurred in this case.

[00:04:20] Speaker 02:
There was no refusal, there was no hindrance, so there was no need to get an injunction.

[00:04:26] Speaker 02:
So I'm not sure how you get a Fourth Amendment argument out of this.

[00:04:31] Speaker 02:
In Donovan, the court says that the thing that substitutes for the warrant is the statute's inspection program in terms of the certainty and regularity of its application.

[00:04:48] Speaker 02:
And there's no doubt that we have that here.

[00:04:51] Speaker 02:
In the Berger case, which comes after Donovan, there was no possibility of pre-compliance review.

[00:04:58] Speaker 02:
And yet again, the court held that the warrantless inspection was okay because everybody was on notice that there would be repeated warrantless inspections.

[00:05:08] Speaker 02:
So I'm afraid I'm not seeing a Fourth Amendment argument.

[00:05:11] Speaker 02:
Nor am I seeing an argument that the statute requires some kind of pre-compliance review, that you can't enter the property if you don't advise the operator that you're entering the property.

[00:05:26] Speaker 03:
Our argument on that point relies on the language which you put, which was the certainty and regularity of the administration.

[00:05:32] Speaker 03:
What did not happen here, which should have happened here, which would have made this inspection certain and regular, is that the inspector should have allowed the operator an opportunity to exercise walk-around rights.

[00:05:45] Speaker 03:
Those walk-around rights are not only found in the MIND Act itself, they're found in the Secretary's internal PPM.

[00:05:52] Speaker 02:
Well, let me ask you about that.

[00:05:55] Speaker 02:
We do have a section of the statute which says, no advance notice of an inspection shall be provided to any person.

[00:06:02] Speaker 02:
Which supports the proposition that they didn't have to give advance notice.

[00:06:07] Speaker 02:
Your reference is to 813F, correct?

[00:06:11] Speaker 02:
That's the walk around section.

[00:06:13] Speaker 02:
So I read the walk around section by its text to say as follows.

[00:06:19] Speaker 02:
Representative the operator shall be given an opportunity to accompany the secretary or his authorized representative during the physical inspection for the purpose of aiding such inspection and to participate in the pre or post inspection conferences.

[00:06:36] Speaker 02:
Opening the door doesn't seem to be relevant to that.

[00:06:39] Speaker 02:
The person did have an opportunity to aid the inspection and to participate in it, right?

[00:06:46] Speaker 02:
The driver

[00:06:48] Speaker 02:
came back up to the car, he was able to point out if he wanted to know if the parking brake actually was set or no, there's no need for a parking brake on this car or anything like that.

[00:07:00] Speaker 02:
So I'm not sure how the walk around right provision was violated.

[00:07:05] Speaker 03:
In two different ways and for two different reasons.

[00:07:08] Speaker 03:
The first relating to the Fourth Amendment question,

[00:07:11] Speaker 03:
because the operator was denied his walk-around right.

[00:07:14] Speaker 02:
Now we're getting into a circle.

[00:07:16] Speaker 02:
You're saying there's a Fourth Amendment right because the walk-around requirement wasn't satisfied and therefore the regularity of the inspection system wasn't obtained, correct?

[00:07:28] Speaker 03:
Correct.

[00:07:29] Speaker 02:
So in order to get that, we first have to ask the question, was the walk-around right violated, correct?

[00:07:36] Speaker 02:
All right, so what's wrong with my reading of the statute which says they should have the opportunity for the purpose of aiding such inspection?

[00:07:48] Speaker 02:
Because I understand your argument.

[00:07:50] Speaker 02:
You think the purpose of the walk-around is to give them a chance to object to entering at all, not to aiding the inspection, is that right?

[00:07:59] Speaker 03:
The second part of that provision that you're reading, the second part which addresses pre and post hearing, I'm sorry, pre and post inspection conferences, that is an opportunity

[00:08:08] Speaker 03:
in which an operator could raise an objection to jurisdiction, could raise an objection to the scope of the inspection.

[00:08:15] Speaker 03:
That is necessary under Donovan and Dewey.

[00:08:17] Speaker 03:
Donovan and Dewey recognizes that there is a right to, quote, force the initiative to go to court.

[00:08:22] Speaker 02:
There has to be.

[00:08:23] Speaker 02:
There's a right to force.

[00:08:24] Speaker 02:
I think that we went over that already.

[00:08:25] Speaker 02:
The Donovan and Dewey provision, which is not this provision, it's the injunction provision, is about the right of the secretary to go to court

[00:08:37] Speaker 02:
If the Secretary has been refused, there was no refusal here.

[00:08:42] Speaker 02:
It doesn't say anything about whether there's jurisdiction or isn't jurisdiction.

[00:08:47] Speaker 02:
It doesn't say you have a right to object to jurisdiction.

[00:08:50] Speaker 02:
All it says here is you have a right to aid in the inspection and to participate in a pre- or post-inspection conference.

[00:08:58] Speaker 02:
Well, he was entitled to participate.

[00:09:01] Speaker 02:
He did participate.

[00:09:04] Speaker 03:
There was no refusal here because of the Secretary's actions to frustrate the ability to refuse.

[00:09:09] Speaker 02:
But where does it say you have the right to refuse?

[00:09:13] Speaker 02:
In fact, the statute says there is no right to refuse.

[00:09:17] Speaker 02:
Isn't that right?

[00:09:17] Speaker 03:
Your Honor, if I may.

[00:09:20] Speaker 03:
I only looked at a different provision of the Mine Act, which is Section 108A1 of the Mine Act.

[00:09:28] Speaker 02:
Can you tell me, I'm sorry, which?

[00:09:30] Speaker 03:
Section 108A1 of the Mine Act, which is at 818.

[00:09:32] Speaker 02:
Yeah, that's what I want.

[00:09:34] Speaker 03:
818 what?

[00:09:34] Speaker 03:
Yes, Your Honor, 818A.

[00:09:36] Speaker 03:
Right.

[00:09:37] Speaker 03:
Which is the provision that deals with civil actions by the secretary.

[00:09:40] Speaker 03:
Right.

[00:09:41] Speaker 03:
This is the provision that has been interpreted by Donovan and by this court.

[00:09:46] Speaker 02:
This is the one I was just reading to you.

[00:09:47] Speaker 02:
This is the one that says the secretary may institute a civil action whenever the operator refuses to admit the representatives.

[00:09:55] Speaker 02:
That didn't happen here.

[00:09:56] Speaker 02:
It doesn't say that the operator has the right to refuse.

[00:10:01] Speaker 02:
It just says

[00:10:04] Speaker 02:
If he does refuse, then instead of shooting your way into the mine, you are supposed to go to court.

[00:10:12] Speaker 03:
That's the purpose of this, to prevent violence at the mine.

[00:10:21] Speaker 03:
The consideration here, though, is that the right of the mine operator to participate fully in the inspection – that is, the certain and regular administration or application of the Mine Act – is what has been frustrated by the actions of the Secretary in this case.

[00:10:36] Speaker 02:
How was that – how was it frustrated?

[00:10:37] Speaker 02:
He participated in the inspection of the car.

[00:10:42] Speaker 03:
Well, respectfully, Your Honor, we disagree with that.

[00:10:44] Speaker 02:
He didn't get a chance to prevent an inspection of a car, but he was able to participate in the inspection that occurred, isn't that right?

[00:10:51] Speaker 03:
Our position is the inspection had concluded effectively when he returned to the truck.

[00:10:56] Speaker 03:
The inspector had opened the door, had climbed into the truck.

[00:11:00] Speaker 03:
had taken the photograph that he alleges documents the volatile condition.

[00:11:04] Speaker 03:
His record was made.

[00:11:05] Speaker 03:
There was no opportunity to be present.

[00:11:09] Speaker 02:
Please, I think we both started the sentence with the exact same words.

[00:11:12] Speaker 00:
I don't know if I'm going to say it.

[00:11:14] Speaker 00:
What would have happened differently had he been there at the outset than what happened anyway, other than stopping it from happening altogether, which you've already gone over.

[00:11:23] Speaker 03:
Certainly, that was the testimony that occurred at trial.

[00:11:27] Speaker 03:
In addition to that, we built one very important thing that could have happened that is discussed in the case that's cited, which is to allow the operator an opportunity to collect evidence contemporaneously, allow the opportunity to understand what's happening, to document, to photograph, to gather evidence that could aid in the defense of the citation.

[00:11:44] Speaker 02:
What prevented him from photographing and doing all those things right there?

[00:11:49] Speaker 02:
I'm not sure I follow that.

[00:11:51] Speaker 02:
How was he prevented from documenting what happened?

[00:11:55] Speaker 03:
Well, in this case, he wasn't present when the entry took place.

[00:11:58] Speaker 02:
Was there an allegation that, in fact, the parking brake was set?

[00:12:02] Speaker 02:
I thought it was conceded that it wasn't.

[00:12:05] Speaker 03:
No, the only evidence of trial was the evidence of the secretary that it was not set.

[00:12:08] Speaker 02:
Do you have an argument that it was set?

[00:12:10] Speaker 03:
The person could have testified again.

[00:12:12] Speaker 03:
We have not argued that point, Your Honor.

[00:12:14] Speaker 02:
So again, to repeat Judge Schoenbaasen's question, what new evidence could have been presented, if there had been?

[00:12:22] Speaker 02:
the more robust participation in the inspection?

[00:12:25] Speaker 03:
I don't know, because the representative rank for it was not present when the inspection took place.

[00:12:31] Speaker 03:
But it goes to a point that was raised in a number of the cases that decided about the importance of contemporaneous collection of information, but also to a point that was very carefully analyzed in the SCP-2 case, which is the case that addresses not the Fourth Amendment issue, but the abuse of discretion issue.

[00:12:48] Speaker 03:
Abuse of discretion issue, which is an independent basis,

[00:12:51] Speaker 03:
for our request that the ruling be reversed.

[00:12:55] Speaker 03:
And in the SCP-2 case, the court very carefully analyzed the concept of prejudice per se and distinguished between absence of walk-around participation and the denial, the affirmative denial of walk-around rights.

[00:13:11] Speaker 03:
Holding government officials must not be permitted to arbitrarily decide when rights may be granted.

[00:13:16] Speaker 03:
And that, Your Honor, is an essential point that we want to make here today, which is both the MIND Act and the PPM provide that the Secretary shall make every reasonable effort to allow an operator to participate in a walk-around.

[00:13:32] Speaker 03:
Every reasonable effort was not made here.

[00:13:34] Speaker 03:
In fact, there is a very credible argument to be made.

[00:13:37] Speaker 02:
That depends on whether you agree with the view that participate in the walk-around includes refusing entry.

[00:13:45] Speaker 02:
If you don't think it includes refusing entry, then there was complete participation in the walk around.

[00:13:57] Speaker 03:
Well, respectfully, Your Honor, we would disagree with that point for this reason.

[00:14:00] Speaker 03:
As I mentioned, the inspection was effectively concluded, the evidence was gathered, photographs were taken, and the inspection was being written.

[00:14:08] Speaker 02:
I think that would be a fair argument had you presented below the testimony of your employee to the effect that there was something about the inspection itself other than refusing inspection at all that was

[00:14:24] Speaker 02:
limited in his part.

[00:14:27] Speaker 02:
There was no argument whatsoever below.

[00:14:29] Speaker 02:
There was an element of the inspection that he was inhibited in participating in, is there?

[00:14:38] Speaker 03:
Yes, Your Honor, that is correct.

[00:14:40] Speaker 03:
He was inhibited and prevented from participating in the inspection, which is the right granted by the MINAC and the PPM.

[00:14:46] Speaker 03:
And that, to that point, that is the essential element of the abuse of process argument, which is this right was arbitrarily denied.

[00:14:56] Speaker 03:
And because it was arbitrarily denied, there must be a consequence.

[00:14:59] Speaker 03:
There must be a right to the wrong, which is, again, what the court in the SCP-1 case dealt with at some point.

[00:15:09] Speaker 03:
And that right, if you will, is a finding of exclusion of evidence under a

[00:15:15] Speaker 02:
So we've held that refusal to admit an authorized representative into a facility for purposes of conducting an inspection is a violation of the Act.

[00:15:25] Speaker 03:
Right?

[00:15:25] Speaker 03:
I'm sorry, Your Honor.

[00:15:26] Speaker 02:
We held in the Starlight case, the case that you cited, that refusal to admit an authorized representative for purposes of conducting an inspection is a violation of the Act.

[00:15:38] Speaker 02:
So there was no right to refuse to permit entry.

[00:15:44] Speaker 03:
Relating to the question of right of entry, there is a provision in the Act that provides that.

[00:15:50] Speaker 02:
I will acknowledge that.

[00:15:54] Speaker 02:
You're out of time, but you probably want to discuss the jurisdictional question that you would have objected to at the time and that you did object to below.

[00:16:02] Speaker 02:
Yes.

[00:16:03] Speaker 03:
Briefly, Your Honor, the jurisdictional question has to do with the definition of an operator.

[00:16:06] Speaker 03:
There are two components to it, an independent contractor and performing services.

[00:16:12] Speaker 03:
Discussion below the agreement between the parties had to do with the fact that the term performing services has not been addressed and has not been, in our opinion, adequately defined by a court.

[00:16:26] Speaker 03:
The independent contractor has been discussed at length.

[00:16:29] Speaker 03:
The minimum service test has been addressed.

[00:16:32] Speaker 03:
Our point on that is simply that at the time this citation was written,

[00:16:36] Speaker 03:
The representative was not performing service.

[00:16:38] Speaker 02:
What is the representative?

[00:16:39] Speaker 02:
The statute says contractor.

[00:16:41] Speaker 02:
It doesn't say representative, does it?

[00:16:43] Speaker 03:
Well, the representative is the contractor.

[00:16:44] Speaker 03:
He was there as an agent, as a representative.

[00:16:46] Speaker 02:
No, but the statute's, the provision in the statute is independent contractor.

[00:16:55] Speaker 02:
I'm trying to find, which is the section we're talking about?

[00:16:58] Speaker 02:
802.

[00:17:00] Speaker 02:
Again, it's eight, what?

[00:17:02] Speaker 02:
802 B.

[00:17:05] Speaker 02:
Sorry, yeah.

[00:17:09] Speaker 02:
Operator means any owner, a C, who operates controls or other minor, any independent contractor performing services, right?

[00:17:20] Speaker 02:
Right for rain was performing services, wasn't it?

[00:17:23] Speaker 03:
No, that argument is not performing services at the time of the inspection.

[00:17:27] Speaker 02:
Who owned the pump?

[00:17:29] Speaker 03:
The pump, I believe, was owned by Rainford and my client.

[00:17:32] Speaker 02:
So its pump was on site draining or trying to drain the quarry, correct?

[00:17:38] Speaker 02:
Correct.

[00:17:39] Speaker 02:
Isn't that a performance of services?

[00:17:41] Speaker 02:
Isn't that performing services?

[00:17:43] Speaker 03:
The company was performing services, had performed services, and intended to perform services.

[00:17:48] Speaker 02:
And at that very moment had a pump on site that was performing services?

[00:17:54] Speaker 03:
It did.

[00:17:55] Speaker 02:
Okay, well, I don't understand.

[00:17:57] Speaker 02:
I don't even understand the argument at all.

[00:17:59] Speaker 02:
The statute doesn't say that each individual employee has to be performing services.

[00:18:05] Speaker 02:
It says any independent contractor performing services.

[00:18:10] Speaker 02:
Why wasn't Right for Rain performing services?

[00:18:13] Speaker 03:
Because at the time the citation was written, you did not have the authority to enter the mine to perform the services.

[00:18:18] Speaker 02:
But it was already in the mine.

[00:18:20] Speaker 02:
That is, its equipment was in the mine.

[00:18:23] Speaker 02:
performing services.

[00:18:24] Speaker 03:
It did not have any person in the minefield.

[00:18:27] Speaker 03:
It did have equipment.

[00:18:28] Speaker 03:
Now, we'll concede to you.

[00:18:29] Speaker 02:
Where in the statute does it say that you had to have an employee on site?

[00:18:35] Speaker 03:
It is not addressed by the statute, and that's the question that we're asking.

[00:18:38] Speaker 02:
So imagine that the pump, that Right for Rain had put the pump into the quarry and negligently had failed to secure it.

[00:18:53] Speaker 02:
And then all of its employees walked away.

[00:18:57] Speaker 02:
And then the pump gyrated wildly and killed 10 miners.

[00:19:01] Speaker 02:
Your position would be that the contractor was not liable because it had no employees performing services even though it had a pump on site that killed five people?

[00:19:13] Speaker 03:
I don't know that that would be our position in that circumstance.

[00:19:17] Speaker 03:
In this circumstance, because the employee was going there to actually service the pump, to make the pump work, and he was in the process of obtaining permission to perform that work, our argument is simply he was not performing services for the purpose of 802D at that time.

[00:19:32] Speaker 02:
At what point would he have actually performed work?

[00:19:35] Speaker 03:
Would he obtain permission to perform the work and then actually enter the mine?

[00:19:38] Speaker 02:
So if he'd entered the mine but not touched the pump, that would be okay?

[00:19:43] Speaker 03:
If he had entered the mine, yes, sir.

[00:19:45] Speaker 02:
So if we understand the definition of mine to include these pertinent areas, including parking lots, which many cases do, then he's entered the mine.

[00:19:57] Speaker 03:
If he had under that circumstance, he would have entered the mine.

[00:20:01] Speaker 03:
Of course, assuming that he had obtained permission to do the work, which is the process he was going through.

[00:20:06] Speaker 02:
What says he has to be authorized?

[00:20:08] Speaker 02:
I don't understand.

[00:20:09] Speaker 02:
I assume he didn't come on his own volition here.

[00:20:11] Speaker 03:
No.

[00:20:12] Speaker 02:
He was asked to come because the pump wasn't performing.

[00:20:15] Speaker 02:
You're saying there's some additional step in the office before it can be performing work?

[00:20:20] Speaker 03:
He was signing in to obtain permission to go onto the mine site.

[00:20:23] Speaker 03:
That's our argument.

[00:20:24] Speaker 03:
OK.

[00:20:25] Speaker 02:
Questions?

[00:20:26] Speaker 03:
No, thank you.

[00:20:37] Speaker 01:
Thank you.

[00:20:37] Speaker 01:
Good morning.

[00:20:38] Speaker 01:
Daniel Colbert for the Secretary of Labor.

[00:20:40] Speaker 01:
May it please the court?

[00:20:41] Speaker 01:
Mining is an exceptionally dangerous activity.

[00:20:44] Speaker 01:
That's why Congress gave the Mine Safety and Health Administration exceptional enforcement powers, including a regime of warrantless inspections performed multiple times a year with no advance notice.

[00:20:55] Speaker 01:
All mine operators are subject to the warrantless inspections, including independent contractors performing services at a mine.

[00:21:01] Speaker 01:
At the time of the citation in this case, Rainford Wren's employee and equipment were present at the mine in order to replace a water pump that was essential to the mine's operation.

[00:21:11] Speaker 01:
That makes Rain for Rent a mine operator subject to unannounced inspections.

[00:21:16] Speaker 01:
Section 103F of the Mine Act provides mine operators with walk-around rates.

[00:21:20] Speaker 01:
That's the right to have a representative accompany an Inchon inspector during an inspection for the explicit purpose of providing information to aid in the inspection.

[00:21:29] Speaker 01:
Substantial evidence supports the administrative law judges finding in this case that Rain for Rent was provided this opportunity when its employee was permitted to observe the violation, dialogue with the inspector,

[00:21:40] Speaker 01:
and provide any mitigating circumstances prior to and after the issuance of the citation.

[00:21:45] Speaker 01:
At the very least, substantial evidence supports the administrative law judge's conclusion that rank for rent suffered no prejudice because its employee was permitted to prevent any mitigating circumstances.

[00:21:56] Speaker 01:
The administrative law judge also correctly declined to hold for the first time the denial of walk-around rights constitutes a per se violation of the fourth amendment.

[00:22:05] Speaker 01:
This court should affirm the elegiac decision in order.

[00:22:10] Speaker 01:
Adopting rainforest positions would destroy the warrantless enforcement regime that Congress created and that the Supreme Court has upheld.

[00:22:20] Speaker 01:
Their definition of operator would depend on what individual employees are doing at a particular moment, which arguably could allow minors to avoid a citation simply by stopping work when an inspector arrives.

[00:22:32] Speaker 01:
The Mine Act simply does not define an operator based on what individual employees are doing at the time, but on the overall work that the contractor is performing at the mine.

[00:22:44] Speaker 01:
Further, their proposed right to refuse an inspection would destroy the warrantless inspection regime that Congress intended.

[00:22:50] Speaker 01:
Under their test, every mine operator could simply refuse an inspection when an IMCHA inspector arrived, require IMCHA to go to court and get an injunction, and therein buy themselves time to fix violations.

[00:23:03] Speaker 01:
Congress was very concerned about this happening.

[00:23:04] Speaker 01:
That's why they created a warrantless regime and why they required no advance notice.

[00:23:12] Speaker 01:
To quote from the Senate report that Donovan Bidue quotes, the Congress was concerned that in light of the notorious ease with which many safety or health hazards may be concealed if advanced warning of inspection is obtained, a warrant requirement would seriously undercut this act's objectives.

[00:23:28] Speaker 01:
If an injunction were a routine requirement before an inspection could take place, that's the equivalent of a warrant requirement.

[00:23:35] Speaker 01:
And that can't be what Congress intended.

[00:23:39] Speaker 01:
Congress was very clear that mines are special because of their particular dangers.

[00:23:44] Speaker 01:
Now, it's true that the Mine Act contains a prohibition on forcible entry and has instead a provision under Section 108 of the Act that requires an issue to go to court before forcibly entering a mine.

[00:23:58] Speaker 01:
But that simply means that Imshin inspectors don't carry guns and aren't going to force themselves onto a mine over an inspector's – over an operator's refusal.

[00:24:09] Speaker 01:
Section 108 instead is an extraordinary remedy available to the secretary, and that's the language of Section 108, is that the secretary may bring a civil action in the event that an operator refuses, and I should say in the extremely rare event.

[00:24:22] Speaker 01:
That's not the same thing as creating a right to refuse an inspection, and in fact, refusing an inspection is itself a violation of the Act.

[00:24:32] Speaker 01:
Instead of reading a right to refuse into the walk-around provision of the Act, Section 103F should be read to serve the purpose stated in the statute, which is providing an opportunity for the operator to aid in the inspection.

[00:24:49] Speaker 01:
What happened here is really routine.

[00:24:51] Speaker 01:
an Incheon inspector arrived at the mine?

[00:24:55] Speaker 01:
Saul, what do you proceed?

[00:24:56] Speaker 02:
Can I ask you a question?

[00:24:58] Speaker 02:
In a way, I'm asking you to look into your opponent's mind, but there must be an explanation for this that's obvious, that the penalty here is extraordinarily small.

[00:25:08] Speaker 02:
In your experience, and in our experience, we've seen many of these appealed.

[00:25:12] Speaker 02:
Is there some provision of the statute that makes repeat offenders or something like that more liable?

[00:25:19] Speaker 02:
Just from an objective, I'm not asking you to be subjective about these parties.

[00:25:23] Speaker 02:
Is there some objective reason why parties appeal these incredibly small fines?

[00:25:29] Speaker 01:
There is a repeat offender's provision.

[00:25:33] Speaker 01:
I don't think that's the reason in this case.

[00:25:35] Speaker 01:
You would have to ask my colleague, but I think my guess is that having a clean safety record, even

[00:25:42] Speaker 01:
avoiding even minor violations like this is important to them, perhaps, for getting contracts in the private market.

[00:25:48] Speaker 01:
I'm not sure.

[00:25:49] Speaker 01:
I see.

[00:25:49] Speaker 01:
OK.

[00:25:49] Speaker 01:
Thank you.

[00:25:54] Speaker 01:
Right.

[00:25:55] Speaker 01:
In this case, what happened was really routine.

[00:25:58] Speaker 01:
An interested inspector saw what he believed to be a safety hazard.

[00:26:01] Speaker 01:
He investigated, determined that there was a violation of the act taking place, talked to the employee,

[00:26:08] Speaker 01:
to see if there was any mitigating circumstances, if in fact maybe there wasn't a violation for some reason, determined that there wasn't, he wrote a citation.

[00:26:16] Speaker 01:
That's the way the MINAC works.

[00:26:17] Speaker 01:
It's the way it's worked for 40 years.

[00:26:20] Speaker 01:
That's the system that Congress envisioned, and it's the system that the Supreme Court has upheld.

[00:26:26] Speaker 01:
And if the panel has no further questions, I'll rely on my brief.

[00:26:32] Speaker 01:
Thank you.

[00:26:33] Speaker 01:
Other questions?

[00:26:34] Speaker 01:
No.

[00:26:35] Speaker 02:
Thank you.

[00:26:38] Speaker 02:
I think we went over your time, but if you want to take another minute, I'll be happy to hear from you.

[00:26:46] Speaker 03:
I would only make one point, and that is this.

[00:26:49] Speaker 03:
The MIND Act and the PPM

[00:26:51] Speaker 03:
And all the guidance issued by the agency says that every effort, every reasonable effort will be made to allow walk-around rights.

[00:26:58] Speaker 03:
That did not happen here.

[00:27:00] Speaker 03:
There must be a consequence.

[00:27:02] Speaker 03:
And that is what we're asking the court to consider.

[00:27:05] Speaker 02:
What do you think the meaning of the word jurisdictional is in the provision that says not following the walk-around, assuming you're right about the walk-around statute, that it's not a jurisdictional prerequisite?

[00:27:20] Speaker 03:
If you're talking about 103F, the walk-around provision, I think that question was considered and answered by the review commission in SCP-1.

[00:27:30] Speaker 03:
I think it was correctly decided where they said this provision, after a careful analysis, does not prohibit an inspection if the walk-around rights are denied.

[00:27:41] Speaker 02:
But if the denial is arbitrary... It can't be about prohibiting.

[00:27:48] Speaker 02:
It's a prerequisite to enforcement.

[00:27:50] Speaker 02:
Enforcement is not an inspection.

[00:27:51] Speaker 02:
Enforcement is what happens after an inspection.

[00:27:53] Speaker 02:
So how could that be?

[00:27:55] Speaker 03:
Correct.

[00:27:56] Speaker 03:
Well, I think it turns on the distinction that the review commission has drawn numerous times between participation in walk-around and denial of walk-around rights.

[00:28:05] Speaker 03:
For whatever reason, unavailability or a conscious decision not to participate has one effect, but the affirmative denial of those walk-around rights should have a different effect.

[00:28:15] Speaker 02:
And should borrow enforcement of the provision.

[00:28:17] Speaker 02:
Is that what you're saying?

[00:28:18] Speaker 02:
And should bar enforcement of the provision?

[00:28:21] Speaker 03:
It should have consequences.

[00:28:22] Speaker 03:
And those consequences, if the denial is arbitrary and abusive discretion, we say is a prejudice per se and should require exclusion of the evidence.

[00:28:32] Speaker 02:
And therefore, bar enforcement of the provision?

[00:28:36] Speaker 03:
Yes.

[00:28:37] Speaker 02:
How is that consistent with the statutory words?

[00:28:40] Speaker 03:
Because there are two different concerns.

[00:28:42] Speaker 03:
The statutory words have to do with the application of the Act itself and the guidance that was given by SCP-1.

[00:28:54] Speaker 02:
First, just to be clear, the views of the Commission don't guide us.

[00:29:02] Speaker 02:
Only the views of the Secretary guide us under the statute to the extent we're guided and don't have to just interpret statutory language.

[00:29:10] Speaker 02:
That's correct, right?

[00:29:11] Speaker 02:
Correct.

[00:29:12] Speaker 02:
So now I have just words.

[00:29:13] Speaker 02:
Compliance with this subsection, that's compliance with the walk-around section, shall not be a jurisdictional prerequisite to the enforcement of any provision of this chapter.

[00:29:25] Speaker 02:
So you're making it a prerequisite to enforcement, aren't you?

[00:29:31] Speaker 02:
Under your proposed remedy, it would be a prerequisite to enforcement.

[00:29:37] Speaker 03:
Under our argument, there is a standalone issue.

[00:29:41] Speaker 03:
which is if there is a abusive discretion, an arbitrary denial of the right to participate in that walk around, that is a separate question, a question separate and apart from whether the statutory provisions allow enforcement action.

[00:29:57] Speaker 03:
When there is an affirmative action, an abusive discretion on behalf of the agency, that is what we're saying must have a consequence.

[00:30:08] Speaker 02:
So you're saying

[00:30:09] Speaker 02:
Non-compliance by abuse of discretion should lead to non-enforcement.

[00:30:16] Speaker 02:
Is that what you're saying?

[00:30:17] Speaker 02:
What about totally intentional non-compliance?

[00:30:21] Speaker 02:
That is, totally intentional failure to comply.

[00:30:27] Speaker 02:
You would agree with that.

[00:30:27] Speaker 02:
Would also be exclusion, right?

[00:30:29] Speaker 03:
If I understand, yes, I believe I understand.

[00:30:31] Speaker 02:
So what's left of the sentence?

[00:30:33] Speaker 02:
If both intentional and the abuse of discretion non-compliance, bar enforcement,

[00:30:40] Speaker 02:
What's left of the meaning of that sentence?

[00:30:43] Speaker 03:
Well, I think that sentence, what it means is that, as it says, that that does not bar enforcement under the act itself.

[00:30:53] Speaker 03:
But again, if there is an affirmative act, if there's an affirmative wrongdoing by an agent of the government, there must be a consequence to that.

[00:31:01] Speaker 03:
That is the abuse of discretion argument that we're making.

[00:31:04] Speaker 02:
So it would be outside of the act that that remedy would be imposed?

[00:31:09] Speaker 02:
Yes.

[00:31:10] Speaker 02:
And who gave either this court or the commission the authority to act beyond the statute?

[00:31:17] Speaker 03:
The Constitution is a due process issue.

[00:31:23] Speaker 02:
That's only if your Fourth Amendment argument wins.

[00:31:26] Speaker 03:
No, I think that's independent of the Fourth Amendment argument.

[00:31:28] Speaker 03:
I think that's the Fifth Amendment argument.

[00:31:29] Speaker 02:
But you think all arbitrary and capricious violations of regulations are actually constitutional violations?

[00:31:36] Speaker 03:
Under the circumstances, depending on the circumstances, that's our argument.

[00:31:40] Speaker 02:
I will take the matter under submissions.

[00:31:41] Speaker 02:
Thank you all.

[00:31:42] Speaker 02:
I appreciate the argument.