Coded message warning of mine inspectors not free speech – 6th Circ

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  • Court affirms $18k fine against KenAmerican Resources for coded message between mine employees
  • Advance-disclosure ban protects government’s compelling interest in mine safety, appeals court panel says

(Reuters) - A federal appeals court upheld a civil penalty against coal-mine operator KenAmerican Resources based on a conversation between two employees about having “company” – a coded tipoff for a surprise visit by inspectors from the U.S. Labor Department’s Mine Safety and Health Administration.

The 6th U.S. Circuit Court of Appeals said Wednesday the conversation violated a federal ban on providing advance notice of an unannounced MSHA inspection, rejecting KenAmerican’s claims that the rule was an overbroad, content-based restraint on speech that violated the First Amendment to the U.S. Constitution.

The law, section 103(a) of the Mine Safety Act, survived the strictest level of scrutiny because it “is narrowly tailored to serve a compelling governmental interest” in conducting “meaningful inspection of the nation’s mines,” Circuit Judge Helene White wrote for the panel.

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“In sum, section 103(a) prohibits communication that provides advance notice of an MSHA inspection. It does not bar all communication about MSHA nor prevent discussion of MSHA inspections after they have occurred,” White added, joined by Circuit Judges Danny Boggs and Eric Clay.

A spokeswoman for the U.S. Labor Department had no immediate comment. KenAmerican’s attorneys at Fabian VanCott did not immediately respond to requests for comment.

According to the 6th Circuit, the case began with an anonymous report of potentially dangerous conditions at KenAmerican’s Paradise No. 9 mine in Muhlenberg County, Kentucky, in 2012.

Several MSHA inspectors went to the mine the next day. One group approached dispatcher Lance Holz to call for a “mantrip” or shuttle down into the mine – a 35-minute trip - but instructed him not to mention that they were there.

The conversation about having “company” occurred after Holz called for the shuttle. It was overheard by MSHA inspector Doyle Sparks, who was monitoring the call.

Sparks issued KenAmerican a civil citation for violating the advance-notice ban. In February 2020, after several administrative appeals and remands, the company received a civil penalty of $18,742 and filed its appeal to the 6th Circuit.

In its decision Wednesday, the panel also rejected KenAmerican’s arguments that section 103(a) only applies to Labor Department employees, not mine operators; and that it did not apply to Holz’s conversation, since he never disclosed the inspectors’ destination or what they were looking for.

The case is KenAmerican Resources Inc v. U.S. Secretary of Labor, et al, 6th U.S. Circuit Court of Appeals, No. 20-4102.

For KenAmerican Resources: Jason Hardin and Artemis Vamianakis of Fabian VanCott

For the U.S.: Emily Toler Scott of the U.S. Labor Department; John Sullivan of the Federal Mine Safety and Health Review Commission

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