**FEDERAL MINESAFETY AND HEALTH REVIEW COMMISSION**

 

OFFICE OFADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIAAVE., N.W., SUITE 520N

WASHINGTON, DC20004-1710

TELEPHONE:202-434-9958 / FAX: 202-434-9949

 

## March 31, 2020

 
| SECRETARY  OF LABOR

  MINE  SAFETY AND HEALTH      

  ADMINISTRATION  (MSHA),

                            Petitioner

 

                        v.

 

SUNBELT  RENTALS, INC.,

                            Respondent                                                                                   |   |   | CIVIL  PENALTY PROCEEDING

 

Docket  No. VA 2013-0291

A.C.  No. 44-00068-316647

 

 

 

Mine:  Roanoke Cement Company |
|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|---------------------------------------------------------------------------------------------------------------------------------------------------|

**DECISION ANDORDER AFTER REMAND**

 

Appearances:              AndrewTardiff, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington,Virginia, and

                                    WillowE. Fort, Esq., Office of the Solicitor, U.S. Department of Labor, 

                                    Nashville,Tennessee for Petitioner

 

Respondent:                TravisW. Vance, Esq., and Collin G. Warren, Fisher & Phillips LLP, Charlotte,North Carolina, for Respondent 

 

Before:                        JudgeMcCarthy

 

**I. Statement ofthe Case**

 

This case is before the undersigned aftera second remand from the Commission upon a Petition for Assessment of a Civil Penaltyunder section 105(d) of the Federal Mine Safety and Health Act of 1977, 30U.S.C. § 815(d) (the Act). Citation No. 8723677 remains at issue and charges scaffold-erectionsubcontractor Sunbelt Rentals, Inc. (Sunbelt or Respondent) with a highlynegligent and significant-and-substantial section 104(a) violation of 30 C.F.R.§ 56.18002(a) after a non-fatal accident occurred on January 8, 2013. Atthe time of the accident, § 56.18002(a) provided that “[a] competentperson designated by the operator shall examine each working place at leastonce each shift for conditions which may adversely affect safety or health. Theoperator shall promptly initiate appropriate action to correct such conditions.”30 C.F.R. § 56.18002(a) (2013).  MSHA proposed a specially-assessed civilpenalty of $51,900. 

 

The sole issue currently on remandbefore the undersigned is the assessment of the penalty for Citation No.8723677. 

 

**II. Procedural Background**

** **

As the facts and history of this caseare detailed in *Sunbelt Rentals, Inc.*, 40 FMSHRC 573 (April 2016)(ALJ) (*Sunbelt III*), only the relevant facts will be discussedhere. The undersigned initially issued an order granting the Respondent’sCross-Motion for Summary Decision. *Sunbelt Rentals, Inc., et al.*,35 FMSHRC 3208 (Sept. 2013) (ALJ) (*Sunbelt I*). On July 12,2016, the Commission vacated the undersigned’s summary decision in favor of allRespondents and remanded all three dockets. *Sunbelt Rentals, Inc., et al*.,38 FMSHRC 1619 (July 2016) (*Sunbelt II*).[1]

 

After holding a hearing in Roanoke,Virginia, on May 23-24, 2017—and after careful review of the record, and theparties’ post-hearing briefs, and accepting the Commission’s remand as the lawof the case—the undersigned found, as relevant here, that Sunbelt violated30 C.F.R. § 56.18002(a) by failing to adequately examine theseventh level of the preheat tower at least once during the January 8, 2013shift, and by failing to promptly initiate corrective action to remove afalling-material hazard. The undersigned further found that the violation resultedfrom Sunbelt’s high negligence. *Sunbelt III*, 40 FMSHRC at 603-05.

 

The undersigned assessed a penalty of $23,750based upon the consideration of the section 110(i) penalty criteria and the deterrentpurposes of the Act. 

 

The Respondentappealed *Sunbelt III* to the Commission. As relevant here, the Respondentchallenged the findings in *Sunbelt III* of a violation and that any violationwas significant and substantial and resulted from high negligence.

 

The Commissionersissued four opinions: one by Commissioners Young and Althen, presented as themajority opinion; one by Commissioner Jorden, concurring, in part, anddissenting, in part; one by Chairman Rajkovich, dissenting in part, concurringin part, and joining in result the opinion of Commissioners Young and Althenonly on the issue of negligence; and one by Commissioner Traynor, concurringwith Commissioner Jordan’s opinion. *Sunbelt Rentals, Inc.*, 2020 WL508744 (Jan. 2020) (*Sunbelt IV*). The initial question before theundersigned is whether, given the fractured opinions of the Commissioners, theundersigned has any further jurisdiction in this matter. 

 

            UnderCommission Procedural Rule 69, a judge’s jurisdiction “terminates when hisdecision has been issued.” 29C.F.R. § 2700.69(b). Jurisdiction may bereturned to a judge after a remand from the Commission. The contours of such aremand provide the sole and specific issues that a judge may consider onremand. *Boswell v. Nat’l Cement Co.*, 15 FMSHRC 935, 937 (June 1993).As such, it is paramount for a judge on remand to determine what, if any,majority opinion dictates how to proceed. 

 

            TheSupreme Court has stated that “[w]hen a fragmented Court decides a case and nosingle rationale explaining the result enjoys the assent” of a majority, “theholding of the Court may be viewed as that position taken by those Members whoconcurred in the judgments on the narrowest grounds.” *Marks v. United States*,430 U.S. 188, 193 (1977) (quoting *Gregg v. Georgia*, 428 U.S. 153, 169n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ). The Court of Appealsfor the District of Columbia has refined the *Marks* rule by defining oneopinion as “narrower” than another “only when one opinion is a logical subsetof other, broader opinions” and ruling that “the narrowest opinion mustrepresent a common denominator of the Court’s reasoning; it must embody aposition implicitly approved by” a majority. *King v. Palmer*, 950 F.2d771, 781 (D.C. Cir. 1992). The Supreme Court has also held that decisions ofadministrative agencies “must be set forth with such clarity as to beunderstandable” because a reviewing court “must know what a decision means beforethe duty becomes [that of the reviewing court] to say whether it is right orwrong.” *Chenery Corp. v. Fed. Water & Gas Corp.*, 332 U.S. 194,195-97 (1947) (quoting *United States v. Chicago, M., St. P. & P.R. CO*,294 U.S. 499, 511 (1935).

 

            Abrief analysis of the opinions in *Sunbelt IV*, as relevant here, is inorder. In their opinion, Commissioners Young and Althen affirmed the finding ofa violation and that finding that it was significant and substantial. However,Commissioners Young and Althen analyzed the evidence and found that “[t]herecord simply does not support the notion that [an examiner-agent of Sunbelt]showed an aggravated lack of care.” *Sunbelt IV*, 2020 WL 508744, at *11 (opinionof Commissioners Young and Althen). Commissioners Young and Althen concludedthat the violation “was a result of the operator’s ordinary negligence.” *Id.*at *14. Consequently, Commissioners Young and Althen voted to remand this matter“for a reassessment of the penalty” based on ordinary negligence. *Id*.

 

            CommissionerJordan, concurring, in part, and dissenting, in part, ruled that there wassubstantial evidence to support a finding of high negligence and voted touphold the undersigned’s findings in *Sunbelt III*. 

 

            Dissentingin part and concurring in part, Chairman Rajkovich found that there was “nosubstantial evidence of a violation” and stated that he would reverse on thosegrounds. *Id.* at *17 (opinion of Chairman Rajkovich). However, ChairmanRajkovich also stated that, in the alternative, he joined Commissioners Youngand Althen in finding “the lower level of negligence.” *Id.* at *21. Specifically,Chairman Rajkovich stated that “given [his] view that there was no violation,it would be wholly inconsistent for [him] to find that the record supports thenotion of an aggravated lack of care, warranting a label of ‘high negligence.’”*Id.*

 

            Finally,Commissioner Traynor wrote a separate opinion concurring with CommissionerJordan. In his opinion, Commissioner Traynor opined that, because of theinconsistency between Chairman Rajkovich’s two positions, there was no validmajority on the issue of negligence.

 

            Takingall of these separate opinions together, there is no common rationale for afinding of ordinary negligence. The opinion of Commissioners Young and Althenclearly states a rationale for finding ordinary negligence; however, ChairmanRajkovich does not join in that reasoning, only in the result. *Compare**id.*at *11-14 (opinion of Commissioners Young and Althen) (stating the reasoningfor finding ordinary negligence in Part III E), *with**id.* at *21 (opinionof Chairman Rajkovich) (joining Part III A and B but not E of the opinion ofCommissioners Young and Althen).[2]Both Commissioners Jordan and Traynor would have upheld the undersigned’s findingof high negligence. Without a common rationale, there is no rationale to formas the basis for precedential effect in other cases. *United States v. Davis*,825 F.3d 1014, 1016 (9th Cir. 2016).

 

            Asthere is no common rationale, the next question must be whether, without acommon rationale, there is a valid majority remanding the matter—and returningjurisdiction—to the undersigned. However, even without a common rationale, alower court is still bound by the specific result of a higher court’s decision.*See, e.g., id.* (“[W]here we can identify no rationale common to amajority of the Justices, we are bound only by the result.”); *King v. Palmer*,950 F.2d at 784. In *Sunbelt IV*, the result, at least, is clear: Chairman Rajkovichjoined the opinion of Commissioners Young and Althen in the result—a remandsolely on the issue of the penalty with ordinary negligence. *Sunbelt IV*,2020 WL 508744, at *16 (opinion of Chairman Rajkovich) (“I concur in resultonly in the opinion of Commissioners Young and Althen.”). Accordingly, theundersigned remains bound by the majority result on ordinary negligence. 

 

            Consequently,although lacking a common rationale, a majority of the Commission validly remandedthis case to the undersigned solely to decide the amount of the penalty givenordinary negligence. 

** **

**III. PenaltyAssessment**

** **

****It is well established that****the CommissionAdministrative Law Judges assess civil penalties de novo for violations of theAct. Section 110(i) of the Act delegates to the Commission the “authority toassess all civil penalties provided in [the] Act.” 30 U.S.C. § 820(i).The Act delegates the duty of proposing penalties to the Secretary. 30 U.S.C.§§ 815(a), 820(a). When an operator contests the proposed penalty, theSecretary petitions the Commission to assess the proposed penalty. 29 C.F.R. §2700.28. The Act requires, that “in assessing civil monetary penalties, theCommission [ALJ] shall consider” six statutory penalty criteria:

[1] the operator’shistory of previous violations, [2] the appropriateness of such penalty to thesize of the business of the operator charged, [3] whether the operator wasnegligent, [4] the effect on the operator's ability to continue in business,[5] the gravity of the violation, and [6] the demonstrated good faith of theperson charged in attempting to achieve rapid compliance after notification ofa violation.

30 U.S.C. § 820(i).

In keeping with this statutory requirement, theCommission has held that “findings of fact on the statutory penalty criteriamust be made” by its judges. *Sellersburg Stone Co.,* 5 FMSHRC 287,292 (Mar. 1983), *aff’d,* 736 F.2d 1147 (7th Cir. 1984). Once factual findingson the statutory penalty criteria have been made, a judge’s penalty assessmentfor a particular violation is an exercise of discretion, which is bounded byproper consideration of the statutory criteria and the deterrent purposes ofthe Act. *Id.* at 294; *Cantera Green,* 22 FMSHRC 616, 620 (May2000). In exercising this discretion to determine the amount of a penalty, theCommission has recognized that a judge is not bound by the penalty proposed bythe Secretary. *Spartan Mining Co.*, 30 FMSHRC 699, 723 (Aug. 2008). 

As the Commission only changed the level ofnegligence found in *Sunbelt III*, the findings and analysis from thatdecision largely stand with the notable exception of substituting the undersigned’sfinding and analysis in *Sunbelt III* of high negligence with the Commission’sfindings and “analysis” of ordinary negligence. 

            Whendetermining a proper assessment for this violation, the undersigned considered:1) the Respondent’s three prior violations of this standard in the 15 monthsprior to the accident; 2) the Respondent’s size as a small contractor whoworked only 26,667 hours in mines in 2012; 3) the Respondent’s ordinarylevel of negligence; 4) the presumption—given the Respondent’s failure tointroduce any specific evidence to support or substantiate its inability to payor any adverse impact on its ability to remain in business—that the penaltywill not have an effect on the Respondent’s ability to continue in business; 5)the high level of gravity of the significant and substantial violation; and 6)the timely abatement made in good faith.

Based upon the undersigned’sconsideration of the section 110(i) penalty criteria and thedeterrent purposes of the Act, the undersigned assesses a penalty of $17,300.00.This amount is the result of an independent determination by the undersigned ofthe statutory criteria and a penalty amount that would respond to theseriousness of the violation and would deter future violations. The undersigneddid not use the Secretary’s proposed specially assessed penalty as a baselineor starting point for this determination. *American Coal Co. v. FMSHRC*,933 F.3d 723, 728 (D.C. Cir. 2019). 

** **

**IV. ORDER**

Citation No. 8723677is **MODIFIED** by the Commission’s decision in *Sunbelt IV* to reducethe level of negligence from high to ordinary. Respondent, Sunbelt Rentals,Inc., is **ORDERED** to pay a total civil penalty of $17,300.00 within 30 daysof the date of this Decision and Order.[3]

** **

** **

** **

** **

** **

/s/Thomas P. McCarthy

                                                                        ThomasP. McCarthy

                                                                        AdministrativeLaw Judge

 

 

 

 

 

 

Distribution:

 

CharylC. Blair-Kijewski

U.S.Department of Labor

Officeof the Solicitor

20112th Street South

Suite401

Arlington,VA 22202

 

AliBeydoun

U.S.Department of Labor

Officeof the Solicitor

20112th Street South

Suite401

Arlington,VA 22202

 

AprilNelson

U.S.Department of Labor

Officeof the Solicitor

20112th Street South

Suite401

Arlington,VA 22202

 

TravisW. Vance

Fisher& Phillips LLP

227West Trade Street

Suite2020

Charlotte,NC 28202

 

R.Henry Moore

Fisher& Phillips LLP

SixPPG Place

Suite830

Pittsburgh,PA 15219

 

----

[1]Prior to a hearing after thefirst remand, two of the three dockets settled, leaving Sunbelt the soleRespondent.

[2]Chairman Rajkovich’s opinion,while a pragmatic decision to craft a majority result on the issue ofnegligence, adopts two seemingly contradictory positions. As an initialposition, Chairman Rajkovich finds that there was no violation; but as analternate position, Chairman Rajkovich finds that, “if [t]here [w]as a[v]iolation, it was [d]ue to [n]o [m]ore than [o]rdinary [n]egligence.” *Sunbelt IV*, 2020 WL 508744,at *21 (opinion of Chairman Rajkovich). As Chairman Rajkovich correctly notes,“[w]hen there is not a finding of violation, the issue of negligence is neverreached.” *Id*. ChairmanRajkovich also correctly notes that, “given [his] view that there was noviolation, it would be wholly inconsistent for [him] to find that the recordsupports the notion of an aggravated lack of care, warranting a label of ‘highnegligence.’” *Id.* However, it is equally inconsistent to find *any*levelof negligence, including ordinary negligence, given Chairman Rajkovich’sposition that there was no violation. 

[3] Payment shouldbe sent to: Pay.gov, a service of the U.S. Department of the Treasury, at https://www.pay.gov/public/form/start/67564508 or,alternately, Mine Safety & Health Administration, U.S. Department of Labor,Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.