Whether it violates the Due Process Clause for an MSHA inspector arbitrarily to refuse a mine operator an opportunity to accompany the inspector on his investigation of that operator's property

QUESTIONS PRESENTED In Donovan v. Dewey, this Court held that the warrantless inspection scheme in the Federal Mine Safety and Health Act of 1977 (“the Mine Act”) does not violate the Fourth Amendment because, inter alia, the certainty and regularity of its application provides a constitutionally adequate substitute for a warrant. See 452 U.S. 594, 602-03 (1981). The Mine Act gives operators of mines the right to accompany inspectors from the Mine Safety and Health Administration (“MSHA”) at every stage of such warrantless inspections. See 30 U.S.C § 813(f). These are commonly referred to as “walkaround rights.” Decisions of the Federal Mine Safety and Health Review Commission (‘the Commission”) have found that MSHA inspectors violated the Due Process Clause by failing to provide walkaround rights as required by statute. However, in this case the D.C. Circuit held that an MSHA inspector’s refusal to provide walkaround rights to the petitioner was not aconstitutional violation, despite the absence of any exigencies that would have made the provision of such rights impracticable. The questions presented in this case are: 1. Whether it violates the Due Process Clause for an MSHA inspector arbitrarily to refuse a mine operator an opportunity to accompany the inspector on his investigation of that operator’s property. 2. Whether it violates the Fourth Amendment for an MSHA inspector arbitrarily to refuse a mine operator the opportunity to accompany the inspector on his investigation of that operator’s property.