Patton Boggs Insights - December 2012: Litigation/Courts: MSHA Medical Records Demand Raises Constitutional Issues

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MSHA’s demand in 2010 for mine operators to disclose confidential medical and business records led to a court challenge alleging that it violated the Fourth Amendment prohibition against warrantless search and seizure as well as due process protections afforded by the Fifth Amendment. The agency sought the documents from 39 mines as part of an audit to determine compliance with Part 50 injury and illness reporting requirements.

The constitutionality of the agency’s records request was the central argument of an amicus curiae brief filed in a federal circuit court of appeals in September by Patton Boggs on behalf of the National Mining Association (NMA) in support of mine operators Big Ridge, Inc. and Peabody Midwest Mining, LLC. The operators went to court after MSHA cited them for refusing to turn over the documents. The case ended up before the Commission, which in a split vote, sided with the government, leading the operators to appeal to the Seventh Circuit.

MSHA’s initial request for documents included “worker compensation filings, FMLA [Family and Medical Leave Act] releases and records, sick leave records, tests including drug test studies, medical reports, treatment notes, fact sheets, and transfer records, etc.” covering the period from July 2009 through June 2010. MSHA subsequently revised the scope of its request, but it remained legally questionable.

Repeatedly citing case law to make its points, NMA argued that mine operators have a legitimate expectation of privacy in business records that the Mine Act does not require them to maintain. For those records, MSHA must go to court and make its case for a warrant. Alternatively, the agency can try and get what it wants through notice-and-comment rulemaking, a key point made by dissenting Commissioner Michael Duffy.

Both MSHA and the Commission cited Sec. 103(h) of the Mine Act to support their claims of MSHA’s warrantless right of records access. The provision requires operators to establish and maintain records, make reports and provide information that MSHA “may reasonably require from time to time.” But NMA argued that the Supreme Court said authority to provide such information goes away if it leads “‘to unchecked discretion of Government officers’ not governed by ‘an administrative plan containing specific neutral criteria.’ˮ The government’s interpretation of the provision and its implementing regulations fail “this threshold test,” NMA argued. “At that point a warrantless search becomes unreasonable,” it said.

MSHA imposed daily penalties on the operators when they refused to comply. NMA argued that these fines violate Fifth Amendment due process protections because fines rapidly accumulate and have the effect of discouraging operators from going to court. “MSHA’s scheme is calculated to deter an operator from exercising its Fifth Amendment right to judicial review to protect its Fourth Amendment right to be free from unreasonable intrusions on its privacy,” NMA wrote.

NMA argued that MSHA’s document demands also violate Sec. 103(e), which prohibits information requests from becoming an unreasonable burden on operators, especially small ones, and expressly goes against protections against government-imposed paperwork requirements enshrined in the Paperwork Reduction Act.

The Seventh Circuit has yet to issue its opinion on this case. Contact Hchajet@patttonboggs.com for further information