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

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. 

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 
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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 

 

1 Prior to a hearing after the first remand, two of the three dockets settled, leaving Sunbelt the 

sole Respondent.
3

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 
4

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 

 

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. 
5

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). 
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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

 

Thomas P. McCarthy

Administrative Law Judge

 

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.
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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