source: Caselaw Access Project

author: VANASKIE, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America v. Roger HENDERSON, Appellant
    No. 15-1562
    United States Court of Appeals, Third Circuit.
    Argued November 6, 2015
    (Opinion Filed: November 8, 2016)

      Rebecca R. Haywood, Esq., Laura S. Irwin, Esq. (argued), Office of United States Attorney, 700 Grant Street, Suite 4000, Pittsburgh, - PA 15219, Counsel for Appellee, United States of America
    Linda E. J. Cohn, Esq., Renee Pietro-paolo, Esq., (argued),- Office of.Federal Public Defender, 1001 Liberty Avenue, 1500 Liberty Center, Pittsburgh, PA 15222, Counsel for Appellant, Roger Henderson
    Before: FUENTES, JORDAN, and VANASKIE, Circuit Judges.
   OPINION

VANASKIE, Circuit Judge.

Roger Henderson appeals the District Court’s determination that he was an Armed Career Criminal, pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). To resolve this case, we must determine whether 35 Pa. Stat. Ann. § 780—113(f)(1) of Pennsylvania’s Controlled Substance, Drug, Device and Cosmetic Act is “divisible” and subject to the modified categorical approach in light of the Supreme Court’s decision in Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). We find that it is, and that the District Court properly used the modified categorical approach to determine that Henderson had three qualifying predicate offenses under ACCA. We will affirm.

I.

The underlying facts are not in dispute. On October 6, 2012, detectives who were conducting surveillance on a middle school in Pittsburgh, Pennsylvania observed Henderson in the bleachers with a firearm and called uniformed police officers to the scene. When the uniformed officers arrived, Henderson slid the firearm from his waistband, placed it behind a seat, and walked away. The uniformed officers recovered the weapon and placed Henderson under arrest after recognizing him as a known felon.

A grand jury returned an indictment charging Henderson with unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Henderson entered a guilty plea on March 6, 2014. Henderson’s Presen-tence Investigation Report revealed that Henderson had at least three qualifying convictions for serious drug offenses within the meaning of ACCA. Henderson objected to the classification of two of his prior convictions as serious drug offenses. The District Court disagreed, finding that three of Henderson’s prior convictions were ACCA serious drug offenses within the meaning of ACCA.

Specifically, the District Court, referencing various charging instruments and other pertinent documents, found that Henderson had separate convictions for possession with intent to deliver cocaine on June 25, 2002; possession with intent to deliver cocaine on January 25, 2004; and possession with intent to deliver heroin on March 13, 2009. Each conviction was for a violation of 35 Pa. Stat. Ann. § 780-113(a)(30), and the District Court concluded that each conviction constituted “a serious drug offense within the meaning of the ACCA.” (App. 11.) Henderson was sentenced to the mandatory minimum prison term of fifteen years. This appeal followed.

II.

The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction over this appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We exercise plenary review over purely legal questions, such as Henderson’s legal challenge to the District Court’s application of ACCA. See United States v. Jones, 332 F.3d 688, 690 (3d. Cir. 2003). We review Henderson’s challenge to the constitutionality of ACCA de novo. See United States v. Fontaine, 697 F.3d 221, 225 n.7 (3d Cir. 2012).

III.

Henderson argues that two of his previous convictions do not qualify as serious drug offenses under ACCA. We disagree.

Under ACCA, a “serious drug offense” includes “an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). The State law at issue here is Pennsylvania’s Controlled Substance Act, which prohibits “the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, ... or knowingly creating, delivering or possessing with intent to. deliver, a counterfeit controlled substance.” 35 Pa. Stat. Ann. § 780-113(a)(30). Section 780-113(f)(l) of Pennsylvania’s Controlled Substance Act sets forth the following penalty for violating Section 780-113(a)(30) of the statute:

(f) Any person who violates clause ... (30) of subsection (a) with respect to:
(1) A controlled substance or counterfeit substance classified in Schedule I or II which is a narcotic drug, is guilty of a felony and upon conviction thereof shall be sentenced to imprisonment not exceeding fifteen years

35 Pa. Stat. Ann. § 780-113(f)(l) (internal footnote omitted). Notably, this section dis-junctively incorporates all of the “controlled substances classified in Schedule I or II” as the substances for which a defendant may receive a maximum sentence of fifteen years for possession with intent to deliver. See id. (footnote omitted). In order to identify the “substances classified in Schedule I or II,” Section 780—113(f)(1) cross-references Section 780-104 of Pennsylvania’s Controlled Substance Act, which provides an exhaustive list of controlled substances that fall within each schedule of prohibited drugs. See 35 Pa. Stat. Ann. §§ 780-104(1), (2).

To determine whether Henderson’s convictions under Pennsylvania’s Controlled Substance Act are ACCA predicate offenses, we employ a “categorical approach” that involves comparing “the elements of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime—ie., the offense as commonly understood.” Descamps v. United States, — U.S.-, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). When applying the categorical approach, we “ ‘look only to the statutory definitions’— ie., the elements—of a defendant’s prior offenses, and not ‘to the particular facts underlying those convictions.’ ” Id. at 2283 (quoting Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). The Supreme Court has explained that “[t]he prior conviction qualifies as an ACCA predicate only if the statute’s elements are the same as, or narrower than, those of the generic offense.” Id. at 2281 (emphasis added). In other words, “when a statute sets out a single (or ‘indivisible’) set of elements to define a single crime,” this Court’s analysis is “straightforward” because we need only “line[ ] up that crime’s elements alongside those of the generic offense and see[ ] if they match.” Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016).

Our analysis, however, is' not as straightforward when faced with statutes that “list[ ] multiple, alternative elements” that must be proven to secure a conviction for violating the statute. See Descamps, 133 S.Ct. 'at 2285. These statutes are known as “divisible statutes,” id. at 2284, because they “list elements in the alternative, and thereby define multiple crimes.” Mathis, 136 S.Ct. at 2249. When faced with divisible statutes, we apply a “modified categorical approach” that allows us “to consult a limited class of documents ... to determine which alternative formed the basis of the defendant’s prior conviction.” Descamps, 133 S.Ct. at 2281. The modified categorical approach permits us to “do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.” Id.-, see also id. at 2285 (noting that “the modified approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute” because it “retains the categorical approach’s central feature: a focus on the elements, rather than the facts, of a crime”).

In United States v. Abbott, we determined that Section ,78,0-113(a)(30) of Pennsylvania’s Controlled Substance Act—the section that underlies Henderson’s previous convictions—is “divisible” and subject to the modified categorical approach. 748 F.3d 154, 156 (3d Cir. 2014). Henderson argues that Abbott is distinguishable because the prior conviction at issue in Abbott involved cocaine, for which defendants are sentenced under Section 780-113(0(1.1) of Pennsylvania’s Controlled Substance Act. 35 Pa. Stat. Ann. § 780-113(f)(l.l). Here, on the other hand, Henderson stresses that his convictions were under Section 780—113(f)(1), therefore requiring a different analysis because the Schedules in Section 780—113(f)(1) contain more substances than the federal schedules. Because Section 780-113(f)(l) lists more substances, Henderson contends Section 780—113(f)(l)’s listing of controlled substances under “Schedule I or II” makes Section 780—113(f)(1) indivisible, such that the modified categorical approach does not have a role to play. Specifically, he maintains that Section 780-113(f)(l) is indivisible because he contends it addresses different means of committing the offense, rather than different elements. We disagree. In light of the Supreme Court’s recent decision in Mathis, 136 S.Ct. 2243, we find Section 780—113(f)(1) is divisible because it addresses different elements of the offense; not the different means of committing the offense.

In Mathis, the Supreme Court reiterated that we may use the categorical approach to analyze a statute if it “lists multiple elements disjunctively,” but may not do so if a statute “enumerates various factual means of committing a single element.” 136 S.Ct. at 2249. Accordingly, the Court explained that “[t]he first task for a sentencing court faced with an alternatively phrased statute is thus to determine whether its listed items are elements or means.” Id. at 2256. “If they are elements,” the Court explained, we should “review the record materials to discover which of' the enumerated alternatives played a part in the defendant’s prior conviction, and then compare that element (along with all others) to those of the generic crime.” Id. “[I]f instead they are means,” however, the Supreme Court explained that we have “no call to decide which of the statutory alternatives was at issue in the earlier prosecution.” Id.

Given the importance of the threshold inquiry—elements or means—the Supreme Court stressed that “[djistinguish-ing between elements and facts is [ ] central to ACCA’s operation.” 136 S.Ct. at 2248. The Court explained that “[elements are the constituent parts’ of a crime’s legal definition—the things the ‘prosecution must prove to sustain a conviction.” Id. (citation omitted); see also id. (“At a trial, they are what the jury must find beyond a reasonable doubt to convict the defendant; and at a plea hearing, they are what the defendant necessarily admits when he pleads guilty.”) (internal citations omitted). By contrast, the Court explained that “[ffects ... are mere real-world things— extraneous to the crime’s legal requirements.” Id.; see also id. (“They are circumstance[s] or eventfs] having no legal effect [or] consequence: In particular, they need neither be found by a jury nor admitted by a defendant.”) (citation omitted).

In Mathis, the Supreme Court outlined three methods for sentencing courts to make the elements/means determination. First, the sentencing court should ascertain whether “a state court decision definitively answers the question....” Mathis, 136 S.Ct. at 2256. Second, the District Judge may look to “the statute on its face,” which “may resolve the issue.” Id. Finally, explained the Court, “if state law fails to provide clear answers,” sentencing courts may look to “the record of a prior conviction itself.” Id. These three approaches confirm that Section 780-113(f)(1) is divisible and subject to the modified categorical approach, and that the District Court properly found that Henderson’s prior convictions were ACCA predicates.

A.

For the first and “easy” method outlined by the Supreme Court, we look to see if a Pennsylvania state court decision definitively answers the question. Mathis, 136 S.Ct. at 2256. “When a ruling of that kind exists, a sentencing judge need only follow what it says.” Id. (citing Schad v. Arizona, 501 U.S. 624, 636, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (plurality opinion)). In Abbott, we recognized that the Pennsylvania Superior Court has ruled that the particular type of drug is an element of the offense under Section 780-113(a)(30). See 748 F.3d at 159 n.4 (citing Commonwealth v. Swavely, 382 Pa.Super. 59, 554 A.2d 946 (1989), petition for allowance of appeal denied, 524 Pa. 619, 571 A.2d 382 (1989)). Specifically, as it pertains to the delivery of controlled substances under Section 780-113(a)(30), the Pennsylvania Superior Court found that the specific type of drug used was an element of the offense; not a means of committing the offense. See Swavely, 554 A.2d at 949 (“[WJhen the vial containing the two separate drugs was delivered, two separate offenses occurred.”). As the Superior Court in Swavely explained:

[I]n order to find appellant guilty of count six, delivery of a Schedule IV controlled substance, [Drug 1], the jury had to conclude that there was a transfer of [Drug 1] from appellant to another person. Thus, delivery of [Drug 1] is not a lesser offense to be included within the offense of delivery of [Drug 2]. Each offense includes an element distinctive of the other, ie. the particular controlled substance.

Id. (emphasis added); see also Commonwealth v. Smith, No. 1140, 2013 WL 11253788, at *3 (Pa. Super. Ct. Sept. 23, 2013) (“Appellant was found in possession of three different controlled substances. Each would support a separate criminal count”); Pennsylvania Bar Institute, Pennsylvania Suggested Standard Criminal Jury Instructions §§ 16.01,16.13 (a)(30)(B) (3d Ed. 2016).

The same logic applies with respect to Section 780-113(f)(l). In order to find Henderson guilty of possession of heroin, a jury would have to conclude that Henderson, in fact, possessed that specific drug which has been classified as a controlled substance in Schedule I or II by the Pennsylvania General Assembly. Those particular controlled substances are, thus, distinct elements of the crime; not means of committing the crime. Therefore, as dictated by the Pennsylvania state courts, Section 780-113(f)(l) sets forth different elements of the offense; not different means.

B.

The second method outlined by the Supreme Court leads to the same conclusion. For the second method, the Supreme Court directs us to consider the language of Section 7S0—113(f)(1) to make the elements or means distinction. Cf. Mathis, 136 S.Ct. at 2256. Specifically, the Court explained that if “statutory alternatives carry different punishments, then ,.. they must be elements.” Id. (citations omitted). On the other hand, the Court explained that “if a statutory list is drafted to offer ‘illustrative examples,’ then it includes only a crime’s means of commission.” Id. (citing, inter alia, United States v. Cabrera-Umanzor, 728 F.3d 347 (4th Cir. 2013)).

Henderson points to the Fourth Circuit’s opinion in United States v. Cabrera-Umanzor to support his argument that Section 780—113(f)(1) provides different “means” of committing the offense rather than different “elements.” In Cabrera-Umanzor, however, the Fourth Circuit addressed a statute that was fundamentally different from -the statute before us now because the statute at issue in Cabrerar-Umanzor addressed sexual abuse of children and provided a list of sex crimes that Maryland’s highest court found to be “ ‘merely illustrative — ’ ” 728 F.3d at 353 (quoting Walker v. State, 432 Md. 587, 69 A.3d 1066, 1084 (2013)). Because Maryland’s state courts had deemed the list of sex crimes in the statute to be illustrative, the Fourth Circuit rightly found that the crimes listed “simply provide[d] examples of acts that come within the [statutory] definition,” and “serve[d] only as a non-exhaustive list of various means by which the elements of sexual molestation or sexual exploitation can be committed.” Id. (citations omitted).

Here, far from offering a list of illustrative examples, Section 780—113(f)(1) provides a list.of specific statutory alternatives by cross-referencing the “Schedule I or II” controlled substances listed in Section 780-104—a disjunctive and exhaustive list of stand-alone alternative definitions that captures the entire universe of substances for which defendants may be convicted and given separate maximum sentences for possession with intent to deliver under Section 780-113(f)(l). By cross-referencing Section 780-104, Section 780-113(f)(1) criminalizes the possession of specific substances listed in Schedules I or II, creating several alternative elements;' not separate means of commission. Cf. Coronado v. Holder, 759 F.3d 977, 984 (9th Cir. 2014), cert. denied, — U.S. -, 135 S.Ct. 1492, 191 L.Ed.2d 430 (2015) (concluding that a California controlled substances statute that “identifies a number of California drug schedules and statutes and organizes them into five separate groups, which are listed in the disjunctive” is divisible and that use of the modified categorical approach was appropriate). Accordingly, we find that, on its face, Pennsylvania’s Controlled Substances Act provides a clear answer with respect to the elements or means inquiry, and is different from the statute at issue in Cabrera- Umanzor, because Section 780—113(f)(1) provides an exhaustive list of all the specific controlled substances that the Act intends to cover, thereby creating separate elements. Section 780—113(f)(1) does not attempt to illustrate the different means of carrying out the offense—i.e., the countless ways people may manufacture,- distribute, or possess the specified controlled substances.

C.

The third method outlined by the Supreme Court in Mathis leads to the same result. The final method from Mathis calls for an examination of “the record of a prior conviction itself’ in order to make the means or elements determination. 136 S.Ct. at 2256. Specifically, the Court explained that sentencing courts may take a “peek at the [record] documents [ ] for the sole and limited purpose of determining whether [the listed .items are] elements] of the offense.” Id, at 2256-57 (all alterations in original) (citation and quotation omitted). When taking this peek, the Court emphasized that the record materials must “speak plainly.... to satisfy ‘Taylor’s demand for certainty* when determining whether a defendant was convicted of a generic offense.” Id. at 2257 (quoting Shepard v. United States, 544 U.S. 13, 21, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). This leads to Henderson’s alternative argument: that the documents underlying his felony conviction under Section 780-113(a)(30) stemming from a January 25, 2004 indictment do not establish a serious drug offense under ACCA. Again, we disagree and find that the District Court did not err in determining that Henderson’s conviction on the January 25, 2004 indictment qualifies as a serious drug offense under ACCA.

Here, the District Court properly looked to Henderson’s charging instrument, change of plea form, sentencing order, and a conviction document to makes its determination that Henderson “pled guilty to and was sentenced for a serious drug offense within the meaning of the ACCA.” (App. 11.) Henderson argues that the documents—in particular, the charging instrument and the conviction document from the convicting court—did not establish with certainty that this conviction was a serious drug offense under ACCA. A review of the record reveals this is simply not the case.

The conviction at issue here stemmed from “count two” of the indictment at “Criminal Action No. 2004[0]-2883.” (App. 9 (citing (App. 68.))) Count two of the cited indictment specifically states that Henderson was charged with possessing “Heroin.” (App. 68.) Because the second qualifying conviction was for heroin, we find that the District Court did not err by looking to Henderson’s charging instrument to make the determination that Henderson’s second qualifying conviction was a serious drug offense under ACCA.

With respect to the conviction document relied upon by the District Court, Henderson contends that the conviction document used was not proper because it was not his “actual” conviction document. Actual conviction documents, however, are not required to provide the requisite certainty demanded by the Supreme Court. See Shepard, 544 U.S. at 26,125 S.Ct. 1254 (explaining that sentencing courts may look to “the charging document ... or ... some comparable judicial record of this information”) (emphasis added); see also United States v. Howard, 599 F.3d 269, 272 (3d Cir. 2010) (“This Court has never established a per se rule that certified copies of a conviction must be offered by the government before a judge may determine a defendant’s career offender status”). Indeed, we have deemed “other reliable judicial records,” id. at 273, to be sufficient, including incomplete certified conviction records and docket entries because we have found that “both ... are ‘records of the convicting court.’” Id. at 272-73 (quoting Shepard, 544 U.S. at 23, 125 S.Ct. 1254) (footnote omitted).

The District Court relied on a form entitled, “Report of Courts Showing the Conviction of Certain Violations of the Controlled Substance, Drug, Device and Cosmetic Act.” (App. 70.) This form is a reliable judicial record. Thus, there was no error in considering it along with the other mutually corroborating records relied upon by the District Court. These “are the type of judicial records that are permissible for sentencing courts to use to establish past convictions for sentencing purposes.” Howard, 599 F.3d at 273; cf. Shepard, 544 U.S. at 23, 125 S.Ct. 1254. Thus, the District Court properly determined that Henderson’s conviction on the January 24, 2004 indictment involved heroin, which is a controlled substance under 21 U.S.C. § 802, and was a predicate offense for the imposition of ACCA’s fifteen-year minimum sentence.

IV.

For the foregoing reasons, we will affirm the judgment of conviction and sentence.

      . If convicted under 18 U.S.C. 922(g), ACCA provides for a minimum fifteen year sentence when a defendant has three previous convictions for serious drug offenses. See 18 U.S.C. § 924(e)(1) ("In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years”),

      . The substance charged in the underlying state court indictment actually was heroin, not cocaine, as stated by the District Court. The District Court’s error is inconsequential.

      . Henderson also challenges the constitutionality of ACCA, arguing that his Fifth and Sixth Amendment rights were violated when his sentence was increased due to three prior convictions that were not charged in the indictment. As Henderson concedes, however, this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Justice Thomas, concurring in Descamps v. United States, - U.S. -, 133 S.Ct, 2276, 2295, 186 L.Ed.2d 438 (2013), observed that the Supreme Court has not yet reconsidered Al-mendarez-Torres, which draws an exception to the Apprendi line of cases for judicial fact-finding that concerns a defendant’s prior convictions,” We,' of course, remain bound by Almendarez-Torres, because only the Supreme Court has the power to overrule one of its precedents, even where the viability of that precedent has been called into question by subsequent Supreme Court decisions. See Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct 1997, 138 L.Ed.2d 391 (1997) ("We reaffirm that if a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” (internal quotation marks omitted)).

      . The Government concedes that Schedules I and II from Section 780-113(f)(1) contain more drugs than—and thus do not completely overlap with—the federal schedules.

      . This approach is also in accord with our previous rulings. As we explained in United States v. Tucker, "[p]ossession (or manufacture, or delivery) of a controlled substance is an element of the offense [under Section 780-113(a)(30)]; to prove it, the prosecution must prove that the substance in question was one of those enumerated in Pennsylvania’s controlled substance schedules_” 703 F.3d 205, 215 (3d Cir. 2012). Henderson contends that Commonwealth v. Kelly, 487 Pa. 174, 409 A.2d 21 (1979), supports his argument that the specific Schedule I or II drugs are means and not elements. This same argument was advanced in Tucker and Abbott. Both times "[w]e addressed th[e] contention ... and rejected it.” Abbott, 748 F.3d at 159 n.5 (citing Tucker, 703 F.3d at 215-16). Abbott remains good law. See Avila v. Attorney Gen., 826 F.3d 662, 666 (3d Cir. 2016) ("The statute under which [petitioner] was convicted, 35 Pa. Cons. Stat. § 780-113(a)(30), is divisible with regard to both the conduct and the controlled substances to which it applies.”) (citing Abbott, 748 F.3d at 159). We see no reason to find otherwise here.

      . Henderson argues that Section 780-104 of Pennsylvania’s Controlled Substance Act provides a non-exhaustive and "illustrative” list of substances. He places a particular emphasis on Section 780-104's language stating that the "schedules include the controlled substances listed or to be listed_” 35 Pa. Stat. Ann. § 780-104. This language, however, does not indicate that the schedules are meant to be illustrative. To the contrary, even though other substances may be added or removed through administrative or legislative processes, 35 Pa. Stat. Ann. § 780-103, Section 780-104 specifically indicates that "[t]he [] controlled substances [listed] are included in [the] schedules....” 35 Pa. Stat. Ann. §§ 780-104(1), (2); see also 28 Pa. Code § 25.72 (noting that Section 780-104 "designates specific substances for inclusion under the five schedules”) (emphasis added). Thus, Section 780-104 does not provide an "illustrative” list of substances, because only the specific controlled substances listed in Section 780-104 will fall within the purview of Section 780-113(f)(l).

      . Notably, the statute at issue in Coronado was strikingly similar to the statute at issue here, as it provided that a person who "possesses any controlled substance which is [] classified in Schedule III, IV, or V.... shall be punished-" 759 F.3d at 983.

      . Note that the Fourth Circuit has since distinguished its Cabrera-Umanzor decision. See United States v. Vinson, 794 F.3d 418, 425-26 (4th Cir. 2015) (distinguishing Cabrera-Uman-zor and concluding that the statute at issue in Vinson—N.C. Gen. Stat. § 14-33(c)(2) concerning domestic violence—was divisible because it was “fundamentally different,” as “[t]he nature and operation of the [elements of the statute] indicate[d] that they operate as alternate definitions or elements for file offense ... not alternate means of committing the offense.”).

      . Henderson's actual conviction document is not in the record.

      . The “Report of Courts” form was completed by the Clerk of Courts in the Court of Common Pleas for Allegheny Pennsylvania and was “to be used for reporting the [ ] listed violations of the Controlled Substance, Drug, Device and Cosmetic Act....” (App. 70.) Notably, this judicial record from the convicting court indicated that Henderson was convicted of violating Section 780-113(a)(30), and specifically indicated that the violation was a felony. Because this form was a “record[ ] of the convicting court,” Howard, 599 F.3d at 273 (quoting Shepard, 544 U.S. at 23, 125 S.Ct. 1254), we find that the form was a reliable judicial record.


author: WILKINSON, Circuit Judge:

text:
    Sharon T. THOMAS, Plaintiff-Appellant, v. THE SALVATION ARMY SOUTHERN TERRITORY; F. Bradford Bailey; The Salvation Army; Bobby Lancaster; Deronda Metz; Barbara Green; Victory Christian Center, Incorporated; Church in the City Ministries; Cathy Doe; Friendship Community Development Corporation, My Sister’s House Transitional Living Center; Iris Hubbard, Defendants-Appellees.

      No. 14-2214
    United States Court of Appeals, Fourth Circuit.
    Argued: September 21, 2016
    Decided: November 8, 2016

      ARGUED: Gregory Dolin, University of Baltimore School of Law, Baltimore, Maryland, for Appellant. Matthew David Lincoln, Moore & Van Allen PLLC, Charlotte, North Carolina, for Appellees. ON BRIEF: Catherine Florea, Third Year Law Student, Marie Langlois, Second Year Law Student, University of Baltimore School of Law, Baltimore, Maryland, for Appellant.
    Before WILKINSON and FLOYD, . Circuit Judges, and IRENE M. KEELEY, United States District Judge for the Northern District of West Virginia, sitting by designation.

      . Thomas’s original complaint named an additional charity—My Sister’s House—and various employees of the charities as defendants. Her counseled brief advances arguments only against the Salvation Army, Church in the City, and Victory Christian Center. Because Thomas has waived claims against the other defendants, we address only her claims against the Salvation Army, Church in the City, and Victory Christian Center. See Slezak v. Evatt, 21 F.3d 590, 593 n.2 (4th Cir. 1994).

   Affirmed as modified by published opinion. Judge WILKINSON wrote the opinion, in which Judge FLOYD and Judge KEELEY joined.

WILKINSON, Circuit Judge:

Sharon Thomas appeals the dismissal under 28 U.S.C. § 1915(e) of her claims against three charitable organizations, which she says unlawfully refused to admit her to homeless shelters because of her alleged mental health disability. We affirm the judgment of dismissal as modified to indicate that it be without prejudice.

I.

Thomas was receiving behavioral health services from Monarch Mental Health Care, a non-profit organization, when she became homeless on July 10, 2012. Monarch referred her to defendant Salvation Army. When she arrived at the Salvation Army shelter on July 12, 2012, Thomas completed some preliminary paperwork, agreed' to follow the shelter’s rules, and was admitted.

The Salvation Army shelter was crowded, and on July 16, a Salvation Army staff member informed Thomas that she would be transferred to defendant Church in the City, a shelter run by the third and final defendant, Victory Christian Center. During an intake interview with a Church in the City nurse, Thomas disclosed her mental health issues. In her complaint, Thomas describes Church in the City as having strict" rules and as being “very clean and quiet.” J.A. 13. Thomas stayed at Church in the City for almost a month before being evicted, and she claims that she followed all of the shelter’s rules during her stay.

While at Church in the City, Thomas visited the Salvation Army shelter twice. First, on July 19, Thomas completed the Salvation Army’s official intake assessment paperwork. In this paperwork, Thomas disclosed that she was receiving behavioral mental health services and authorized the release of some medical information to the Salvation Army. Second, on July 31, Thomas went to the Salvation Army to see a doctor to get medication. Thomas does not specify what medication she was receiving, but she notes that the doctor referred her to a behavioral health center. On the same visit, Thomas met with her Salvation Army case manager. The meeting included a discussion of Thqmas’s mental health issues.

Thomas’s problems with the sheltdrs began on August 12, when Church in the City evicted her. The shelter did not give Thomas a reason for her ejection. Another woman was evicted at the same time for missing the shelter’s curfew, though Thomas avers that she never missed curfew. Thomas’s complaint notes that she had been given additional chores the day before—cleaning three showers instead of two—by a volunteer who had, a few weeks earlier, told Thomas not to question the Bible during a Bible study class.

From August 12 through August 15, Thomas tried and failed to be admitted to the Salvation Army shelter a number of times. Immediately after being ejected from Church in the City, Thomas went to the Salvation Army shelter. She was told that she would not be allowed to stay there if she had been ejected from Church in the City. That same day, Thomas was hospitalized for chest pains, and a hospital social worker called the Salvation Army on her behalf. The social worker was informed that Thomas’s Salvation Army case worker had decided that Thomas would not be admitted to the Salvation Army shelter.

Thomas herself called the Salvation Army twice the next day, August 13. On the first phone call, Thomas’s case manager told her that she had been ejected from Church in the City for violating curfew. This call ended after Thomas accused her case manager of acting unethically. On the second phone call, the director of the Salvation Army shelter told Thomas she had been ejected from Church in the City because she was not a good fit.

The following night, August 14, Thomas had nowhere to stay and went to the police department for help. Two police officers escorted her to the Salvation Army shelter, where she was again denied entry. This time, a staff member told Thomas that the director of the shelter had instructed her not to let Thomas stay. The staff member did not give a specific reason for that instruction but apparently believed it was due to mental health issues and that if Thomas received a mental health evaluation, she would be admitted to the shelter. Thomas went to a psychiatric emergency room and was examined by a psychiatrist. The next day, August 15, Thomas returned to the Salvation Army shelter with her psychiatric discharge papers. She was again refused admission to the shelter, though this time Thomas was not given a reason for the denial.

Thomas does not allege that she sought admission at the Salvation Army shelter after August 15, but she did continue to seek an answer for why she had been denied admission. On September 12, 2012, she received an email from the Area Commander for the Salvation Army, explaining that he had investigated her case and that the denial of services was justified because Thomas had “exhibited disrespect and hostility toward the staff.” J.A. 21. The Area Commander offered shelter if Thomas submitted to “a mental health evaluation and stabilization services from” a behavioral mental health organization. J.A, 21. In response, Thomas requested records of her stay and of the Salvation Army’s relationship with Church in the City. On October 23, 2012, Thomas received an email from another Salvation Army employee, denying her request for records.

Nearly two years later, on July 24, 2014, Thomas filed this action in the Western District of North Carolina, moving to proceed in forma pauperis. The district court granted Thomas’s motion. In the same order, however, the district court dismissed all of Thomas’s claims under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which relief could be granted. In addition, the district court warned Thomas that if she continued to file meritless lawsuits, it would require her to show cause as to why the court should not enter a pre-filing injunction against her. Thomas now appeals.

II.

Thomas challenges the dismissal of her claims under 42 U.S.C. § 1983, 42 U.S.C. § 1985, the Americans with Disabilities Act (“ADA”), the Fair Housing Act (“FHA”), and the Rehabilitation Act. The district court dismissed these claims under 28 U.S.C. § 1915(e)(2)(B)(ii). “The standards for reviewing a dismissal under § 1915(e)(2)(B)(ii) are the same as those for reviewing a dismissal under Federal Rule of Civil Procedure 12(b)(6).” De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). Thus, we review this dismissal de novo and accept pleaded facts as true. King v. Rubenstein, 825 F.3d 206, 212, 214 (4th Cir. 2016). While we construe allegations in a pro se complaint liberally, a complaint still “must contain ‘enough facts to state a claim for relief that is plausible on its face.’ ” Id. at 214 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). We shall address each of Thomas’s various claims in turn.

A.

Thomas’s § 1983 claim cannot proceed because none of the defendants are state actors. To state a claim under § 1983, a plaintiff must allege that he was “deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law.” Am. Mfrs. Mut. Ins, Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). The color of law requirement “excludes from its reach merely private conduct, no.matter how discriminatory, or wrongful.” Id. at 50, 119 S.Ct. 977 (internal quotations omitted). In rare cases, the state can “so dominate[ ] [private] activity as to convert it to state action.” Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 181 (4th Cir. 2009). The defendants here are three private charities, and Thomas has not alleged any facts that even remotely suggest that defendants’ actions were attributable to the state. Without state action, Thomas has no § 1983 claim.

B.

Thomas’s § 1985 claim of a civil conspiracy between the Salvation Army and Church in the City must also be dismissed because there are no allegations to support the existence of any conspiracy. To bring a claim under 42 U.S.C. § 1985, a plaintiff must show:

(1) a conspiracy of two or more persons, (2) who are motivated by a specific class-based, invidiously discriminatory animus to (3) deprive the plaintiff of the equal enjoyment of rights secured by the law to all, (4) and which results in injury to the plaintiff as (5) a consequence of an overt act committed by the defendants in connection with the conspiracy.

Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir. 1995). Allegations of “parallel conduct and a bare assertion of a conspiracy” are not enough for a claim to proceed. A Soc’y Without A Name v. Virginia, 655 F.3d 342, 347 (4th Cir. 2011) (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

Thomas provides no facts to suggest that the Salvation Army and Church in the City conspired to do anything, much lesS' to deprive her of rights because of her alleged mental disability. For example, Thomas claims that her Salvation Army identification badge included a mention of Church in the City and that she svas told she could not return to the Salvation Army after .being evicted from Church in the City. But these facts do not show any coordination or conspiracy—they simply show two charities working to help the same population of homeless people in Charlotte. Thomas’s complaint offers only conclusory allegations that the Salvation Army conspired with Church in the City, and that is not enough to proceed on a claim under § 1985.

C.

Thomas also raises a claim under the Americans with Disabilities Act but lacks standing to bring it. Title III of the ADA prevents discrimination on the basis of a disability in places of public accommodation. 42 U.S.C. § 12182. It provides a private right of action for injunctive relief but no right of action for monetary relief. 42 U.S.C. § 12188; see also Ervine v. Desert View Reg'l Med. Ctr. Holdings, LLC, 753 F.3d 862, 867 (9th Cir. 2014) (“Damages are not an available remedy to individuals under Title III of the ADA; individuals may receive only injunctive relief.”). Injunctive relief, however, “is unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again.” City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983).

Thomas fails to show any real or immediate threat that she will be wronged again. Any denial of access to the shelters occurred almost two years before Thomas filed this action. Her complaint does not allege that she is still homeless or that the defendants would still deny her access to the shelters because of her disability. Moreover, Thomas indicates that she filed her complaint “due [to] the persistent and distressing memories and thoughts about the experiences of abuse and discrimination,” J.A. 24, not to prevent future discrimination. Without the threat of future harm, Thomas is not entitled to injunctive relief and thus has no valid claim under Title III of the ADA.

In dismissing Thomas’s ADA claim for failure to exhaust administrative remedies, the district court erred by characterizing her claim as an employment claim under Title I of the ADA. The district court was correct that Title I requires a plaintiff to exhaust administrative remedies by filing a .charge with the Equal Employment Opportunity Commission before pursuing .litigation in federal court. 42 U.S.C. § 12117; see also Sydnor v. Fairfax Cnty., 681 F.3d 591, 593 (4th Cir. 2012). But because Thomas’s claims do not concern her employment, they do not fall under Title I and thus are not subject to the administrative exhaustion requirement. McInerney v. Rensselaer Polytechnic Inst., 505 F.3d 135, 138 (2d Cir. 2007) (per cur riam) (“Title III, unlike Title I, does not require administrative exhaustion.”). Nonetheless, we may affirm the district court on alternate grounds, Cochran v. Morris, 73 F.3d 1310, 1315 (4th Cir. 1996) (en banc), and we have done so here.

In her original complaint, Thomas cites the sections of the ADA that comprise Title II. Title II, however, applies only to “the services, programs, or activities of a public entity.” 42 U.S.C. § 12132; see also Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 209, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998). None of the defendants here are public entities, so Thomas cannot proceed under Title II of the ADA either.

D.

Thomas’s FHA claim was properly dismissed because her complaint does not contain a plausible allegation of discrimination. As relevant here, the' FHA makes it unlawful to “make unavailable or deny ... a dwelling to any buyer or renter because of a handicap,” 42 U.S.C. § 3604(f)(1), or to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling ... because of a handicap.” 42 U.S.C. § 3604(f)(2). A handicap is “a physical or mental impairment which substantially limits' one or more of such person’s major life activities.” 42 U.S.C. § 3602(h). The Salvation Army argues that homeless shelters are not covered under § 3604(f) because the residents are not buyers or renters and because a homeless shelter does not meet the definition of a dwelling under the FHA. Courts have differed on these points. See, e.g., Hunter ex rel. A.H. v. D.C., 64 F.Supp.3d 158, 177 (D.D.C. 2014) (homeless shelter is a dwelling under the FHA); Intermountain Fair Hous. Council v. Boise Rescue Mission Ministries, 717 F.Supp.2d 1101, 1109 (D. Idaho 2010), aff'd on other grounds, 657 F.3d 988 (9th Cir. 2011) (homeless shelter is not a dwelling under the FHA). We see no need to reach these questions here because Thomas’s complaint independently suffers from serious defects, as discussed below.

One such defect is that Thomas’s complaint fails to adequately identify her mental disability. Thomas provides limited evidence in her complaint that she has some type of mental illness—she received care from a behavioral health organization, she had an appointment with a doctor, and she was on medication. In her informal appellate brief, Thomas specifies her mental illness as a mood disorder. This evidence, though, does not suggest that her mental illness is a handicap covered by the FHA. Moreover, Thomas alleges that she was ^'mentally stable”.and that the mental evaluation requested by the Salvation Army was “unnecessary.” J.A. 5, 20. These facts do not give rise to a “reasonable ■inference,” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), that Thomas is handicapped under the FHA.

Another defect is that Thomas’s complaint does not draw a sufficient nexus of causation between whatever mental illness she may have and the defendants’ actions. To state a claim under the FHA, Thomas must show that the defendants denied her housing “because of’ her handicap. 42 U.S.C. § 3604(f)(1). Thomas’s allegation against Church in the City on this point is purely conclusory. Church in the City did not give Thomas a reason for the denial of shelter, and nothing in Thomas’s complaint suggests that the denial was because of her alleged mental disability. While Thomas’s allegations against the Salvation Army are somewhat more detailed, the complaint does not make a plausible allegation that the Salvation Army unlawfully denied Thomas shelter “because of’ a mental disability. Even when construed liberally and with all reasonable inferences made in Thomas’s favor, De’Lonta, 330 F.3d at 633, this is not a “claim to relief that is plausible on its face,” Twombly, 550 U.S. at 570, 127 S.Ct. 1955.

The communications between the Salvation Army and Thomas indicate that the Salvation Army had legitimate reasons to be wary of admitting Thomas and sought reasonable reassurance that Thomas would not cause problems as a resident. The most detailed explanation of the Salvation Army’s concerns was in the September 12, 2012 email sent by the Area Commander for the Salvation Army summarizing his investigation of Thomas’s situation: ‘Tour actions during your time at the shelter exhibited disrespect and hostility toward the staff that was endeavoring to help you, therefore you were asked to leave the facility.” J.A. 21. The email also offered shelter if Thomas would “receive a mental health evaluation and stabilization services.” J.A. 21. It is not reasonable to read this email as evidence that the Salvation Army refused to admit Thomas because of a mental disability. Rather, it is clear that the Salvation Army’s decision to deny Thomas access was an effort to exercise prudence and to ensure that, with the support of appropriate medical evidence, any mental condition of hers was under control. This is consistent with the only other instance in Thomas’s complaint of a Salvation Army staff member referencing her mental illness. In denying her access to the shelter, the staff member suggested Thomas would be readmitted if she obtained a mental health evaluation. J.A. 19.

The Salvation Army was within its rights to require reasonable steps to ensure that Thomas was stable before admitting her to the shelter. The' Salvation Army is charged with protecting all of those in its shelters, and it simply cannot run the serious risk of admitting a resident who will be disruptive and may inflict harm on others. Admitting such a resident jeopardizes the safety of other residents and may subject the shelter to significant liability. See e.g. Corporan v. Barrier Free Living Inc., 19 N.Y.S.3d 160, 133 A.D.3d 497 (2015) (affirming denial of homeless shelter’s motion for summary judgment where factual issues existed as to whether fatal attack by resident was foreseeable); Keri Blakinger & Reuven Blau, NYC Shelter to Pay $1,2M to Stabbed Resident’s Kin, N.Y. Daily News, March 31, 2016, at 22 (describing $1.2 million settlement in Corporan).

If denying access to an unstable applicant subjected a shelter to extended litigation and potential liability, the shelter would be faced with a difficult dilemma. Charitable organizations would be subject to liability whichever way they turned. Denial of access would lead to lawsuits like this one, and ill-advised grants of access could lead to staggering judgments against the charitable organization if another resident was seriously harmed. The time and expense involved in all of this would risk impairing the humane mission of sheltering homeless persons that is these organizations’ very reason for being.

In fact, Congress anticipated this very problem and repeatedly declined to extend statutory protection to individuals who present a threat to public health or the safety of others. See 42 U.S.C. § 3604(f)(9) (“Nothing in [the FHA] requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat' to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.”); 42 U.S.C. § 12182(b)(3) (“Nothing in [the ADA] shall require an entity to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of such entity where such individual poses a direct threat to the health or safety of others.”); McGeshick v. Principi, 357 F.3d 1146, 1151 (10th Cir. 2004) (“[I]t is a defense to claims under the Rehabilitation Act that [a plaintiff] may pose a ‘direct threat’ to the welfare of others.”). The district court was right not to put the shelter between a rock and a hard place by imposing liability for exercising prudence in the course of its admissions decisions.

In an effort to clear the bar of plausibility, Iqbal, 556 U.S. at 678, 129 S.Ct. 1937, Thomas claims in her complaint that “[t]here were no instances ... of conflict with staff,” J.A. 21, but this assertion seems limited to her brief stay at the Salvation Army before she was transferred to the Church in the City. Her own descriptions of her later interactions with Salvation Army staff do not serve to undermine the Salvation Army’s explanation. In fact, those descriptions indicate the possibility of hostility, including Thomas’s accusations of unethical staff conduct and her threats of legal action. See J.A. 17, 20. Moreover, Thomas’s alleged mental health problems are not inconsistent with hostile interactions with staff members. In short, these problems may have contributed to any unfortunate friction.

Thomas argues that she received different explanations from different Salvation Army staff members for refusing to admit her. These explanations, however, show once again the Salvation Army exercising caution when confronted with a potentially disruptive resident, and any minor inconsistencies are evidence of multiple shelter employees dealing with a difficult situation. Cf. Price v. Thompson, 380 F.3d 209, 217 n.5 (4th Cir. 2004) (finding inconsistencies that “ar[o]se from reading applications hastily or from being nervous during depositions” were not evidence of pretext).

Thomas also complains that the Salvation Army did not accept her discharge papers from the emergency room as a mental health evaluation. These papers were the result of a brief consultation and fell short of being the considered opinion of a mental health professional. The Salvation Army was under no obligation to accept such an abbreviated assessment as an adequate response to its offer of shelter if Thomas submitted to a fuller mental health evaluation from a behavioral health organization.

In sum, Thomas’s complaint does not contain “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Because we cannot make a reasonable inference from her complaint— even when liberally construed—that Thomas is handicapped under the FHA or that the defendants impermissibly denied Thomas shelter because of her mental illness, Thomas’s FHA claim must be dismissed.

E.

Finally, Thomas’s claim under the Rehabilitation Act was also properly dismissed. As with the ADA and the FHA, the Rehabilitation Act forbids discrimination based on a disability. The Rehabilitation Act, though, differs in two key ways. First, it applies only to programs receiving federal assistance. 29 U.S.C. § 794; see also Disabled in Action v. Mayor & City Council of Baltimore, 685 F.2d 881, 883 (4th Cir. 1982). Second, the Rehabilitation Act requires that a plaintiff show that the exclusion was “solely by reason of her or his disability.” 29 U.S.C. § 794. This is a stricter causation requirement than the ADA or FHA, under which the disability can be one of .multiple causes. Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 461-62 (4th Cir. 2012) (“To succeed on a claim under the Rehabilitation Act, the plaintiff must establish he was excluded ‘solely by reason of his disability; the ADA requires only that the disability was ‘a motivating cause’ of the exclusion.”); Asbury v. Brougham, 866 F.2d 1276, 1279 (10th Cir. 1989) (holding the discriminatory reason “need not be the only factor in the decision” for a violation of the FHA).

Thomas’s complaint alleges that the Salvation Army received federal funding; there is no similar allegation for Church in the City or Victory Christian Center. Assuming that the Salvation Army would be subject to the Rehabilitation Act, Thomas’s claim should nonetheless be dismissed for the same reasons as her FHA claim. Thomas’s complaint fails to allege (1) a mental illness that would qualify as a disability under the Act or (2) a nexus between the Salvation Army’s decision not to admit her and her alleged mental disability, The heightened causation required for the Rehabilitation Act claim makes the inadequacy of Thomas’s complaint even more apparent.

F.

Because we affirm the district court’s dismissal of all of Thomas’s federal claims, we also affirm its decision to decline to exercise supplemental jurisdiction and thus to dismiss Thomas’s state law claims without prejudice. See Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995).

III.

The district court was right to dismiss the complaint given its multiple deficiencies, namely the omission of the nature of any illness much less the presence of such illness as a causative agent of the Salvation Army’s decision. The Salvation Army was justified in exercising prudence, protecting other residents and its staff, and requesting a more thorough evaluation of Thomas’s mental health, Thomas has not thrown this reasonable explanation into plausible doubt. Twombly, 550 U.S. at 570, 127 S.Ct. 1955, We therefore affirm the district court. We note that Thomas did not have an opportunity to respond before the district court dismissed her complaint sua sponte or an opportunity to amend her complaint. Thus, we modify the judgment only to the extent that the dismissal be without prejudice.

AFFIRMED AS MODIFIED

      . Thomas advances arguments for her § 1983 and § 1985 claims in her informal brief but not in her counseled brief. Appellant’s Reply Br. 2 n.l. We have held in similar circumstances that this results in waiver of the claims. Slezak, 21 F.3d at 593 n.2 (declining to consider issues not raised in counseled brief). Nonetheless, we will in the exercise of our discretion address her § 1983 and § 1985 claims.

      . As the district court noted, Thomas has filed at least eight lawsuits in the Western District of North Carolina, prevailing in none, and at least five additional suits in the Middle District of North Carolina. J.A. 59. Our opinion herein does not reflect on whether Thomas should be subject to a pre-filing injunction, a matter we leave to the district court in the first instance.


author: WYNN, Circuit Judge:

text:
    CONSOL BUCHANAN MINING COMPANY, LLC, Petitioner, v. SECRETARY OF LABOR; Federal Mine Safety & Health Review Commission; Federal Mine Safety & Health Administration, Respondents.
    No. 15-1321
    United States Court of Appeals, Fourth Circuit.
    Argued: September 22, 2016
    Decided: November 10, 2016
    Amended: November 23, 2016

      ARGUED: Billy Ray Shelton, Jones, Walters, Turner & Shelton PLLC, Lexington, Kentucky, for Petitioner. Cheryl C. Blair-Kijewski, United States Department of Labor, Arlington, Virginia, for Respondents. ON BRIEF: Randall C. Eads, Eads & Eads, Abingdon, Virginia, for Petitioner. M. Patricia Smith, Solicitor of Labor, Office of the Solicitor, Washington, D.C., Heidi W. Strassler, Associate Solicitor, Office of Civil Penalty Compliance, MSHA, W. Christian Schumann, Appellate Litigation, United States Department of Labor, Arlington, Virginia, for Respondent, Secretary of Labor.
    Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.
   Petition for review denied by published opinion. Judge WYNN wrote the opinion, in which Judge WILKINSON and Judge DUNCAN joined.

WYNN, Circuit Judge:

Following a fatal accident in a coal mine operated by Consol Buchanan Mining Co. (“Consol”), the Federal Mine Safety and Health Review Commission (the “Commission”) determined that the accident resulted from Consol’s “unwarrantable failure” to ensure that certain equipment in the mine was maintained in a safe,- working condition. Seeking review by this Court, Consol argues that it lacked- notice that hazardous conditions in- the mine violated applicable mine safety regulations. Further, Consol asserts that the agency erred in concluding that the company demonstrated aggravated negligence in failing to rectify evident safety concerns. We disagree and therefore deny Consol’s petition for review.

I.

A.

Consol operates a large underground coal mine in Buchanan, Virginia. On January 11, 2012, acting Shift Foreman Lynn Semones directed Section Foreman Gregory Addington and miners David Green and Joseph Saunders to move a shuttle car from one part of the mine to another. In general, foremen were not assigned to assist with such a move. Recognizing Ad-dington’s lack of experience moving equipment, however, Semones assigned Adding-ton to oversee this particular move to “get him some experience” with the process. J.A. 656. Semones directed Addington to “[fjollow [Green and Saunders], learn from them, [and] help them [move the car] through tight places.” Id.

At the time of the accident, a six-inch water supply line ran along the mine floor immediately adjacent to the trackway on which miners moved equipment through the mine. Though originally situated above the mine floor, this waterline was effectively buried by the accumulation of years of dust and debris from the mine. As the mine’s main water supply, the line supplied water for various uses throughout the mine, including firefighting and the suppression of coal dust generated through the mining process.

To enable these distinct uses, multi-out-let water manifolds were installed at regular intervals along the line. Connected to each manifold were valves, each of which could be adjusted to control the flow of water for a designated purpose. Separately, to stem the flow of water entirely, the main six-inch waterline included larger shutoff valves. These valves were arranged in a “ladder system,” such that three separate valves had to be closed to fully stop the flow of water to a particular section of the line. J.A. 40.

Due to their proximity to the trackway, machinery regularly struck the manifolds and valves extending from the main waterline as the machinery moved through the mine. Though aware that fire valves were occasionally damaged by moving equipment, Semones did not instruct Addington on how to respond to such an incident, instead relying on the miners’ prior experience to. ensure that the move was accomplished safely. Nonetheless, aware of the possibility that the passing shuttle car may damage a protruding valve, Addington looked unsuccessfully for replacement valves before joining the move crew.

B.

Soon after the crew began to move the shuttle car, the car struck a fire valve connected to a manifold extending from the main waterline, breaking the valve in two and leaving a fountain of water shooting from the manifold. While Addington dried himself, Green and Saunders set about to stop the flow of water and repair the broken valve. To do so, Green and Saunders, along with a third miner, first sought to close the shutoff valves on the main six-inch waterline. Because Consol had removed the “leverage bars” provided by the valve manufacturer to assist in opening and closing the valves, the miners attempted to close the valve using a nearby steel bar.

As the miners worked to close the shutoff valves, Addington contacted Semones to report the accident. Semones later recounted that he directed Addington to continue moving the shuttle car to allow a second crew to repair the damaged valve. Addington testified, however, that he did not hear Semones’s instruction. At any rate, rather than following this direction, Addington returned to the scene of the accident and found Green and Saunders working to reassemble the broken fire valve. Assuming' the miners knew how to repair the valve, Addington watched as Green and Saunders worked to reattach the valve, to the manifold.

Unfortunately, due to the accretion of debris on the main waterline, the miners were unable to fully close one of the'shutoff valves. With the valve partially open, water continued to flow through the manifold as the miners attempted to reattach the broken fire valve. At the same time, the dislocation of the fire valve- from the manifold damaged the valve’s threading such that it could no longer bear the level of water pressure it was designed to withstand. Although the miners visually inspected the threading before attempting to reattach the vaive, investigators later determined that the damage to the threading was difficult to detect without magnification. Saunders was unable, however, to reattach the valve by hand and instead used a pipe wrench to attempt to tighten the valve into place.

Ultimately, the damage to the threading, coupled with the building water pressure, caused the valve to fail. As a result, the valve was suddenly ejected from the manifold, striking' Saunders and fatally injuring him. A Mine Safety & Health Administration (“MSHA”) investigator who arrived at the scene soon thereafter observed a fountain of water flowing from the manifold and concluded that one of the shutoff valves was not fully closed. Upon further inspection, the investigator noted that the shutoff valve remained visually and audibly (that is, making a hissing sound) open. A more extensive MSHA inquiry followed, with investigators concluding that the accident resulted from the failure to ensure that the shutoff valve was fully closed before attempting to reattach the inoperable fire valve. ■

C.

Following its investigation, MSHA petitioned the Commission to assess civil penalties against Consol for violations of two mine safety regulations: (1) 30 C.F.R. § 75.1725(a) (the" “Mining Equipment Rule”), which requires mine operators to remove unsafe mining machinery or equipment from service, for reusing the damaged fire valve after it was dislocated from the water manifold; and (2) 30 C.F.R. § 75.1100-3 (the “Fire Equipment Rule”), which requires all firefighting equipment to be maintained in a usable and operative condition, for failing to ensure leverage bars were, available to be used to close the shutoff valves and otherwise failing to ensure that the valves could be fully closed.

After conducting an evidentiary hearing, at which the parties presented testimony from MSHA inspectors and the miners involved in the accident, a Commission Administrative Law Judge (“ALJ”) upheld the investigators’ findings and concluded that each of the violations stemmed from Consol’s “unwarrantable failure” to comply with the identified MSHA regulations. Pursuant to Section 104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1), the ALJ imposed a civil penalty of $70,000 for each violation. The Commission subsequently denied Consol’s petition for discretionary review, and the ALJ’s decision thus became a final Commission order on March 4, 2015.

Consol now petitions 'this Court for review and challenges the Commission’s final order on three grounds. First, the company contends that it lacked fair notice that using an inoperable shutoff valve violated the Fire Equipment Rule because MSHA had not previously cited Consol for failing to ensure that shutoff valves on the mine’s central waterline could be closed. Second, asserting that Addington was not responsible for supervising Green and Saunders in their efforts to repair the damaged fire valve, Consol challenges the ALJ’s conclusion that Addington served as Consol’s agent, such that any negligence attributable to him may be imputed to Consol. Last, Consol contests the ALJ’s ultimate finding that Consol demonstrated heightened negligence in failing to comply with applicable MSHA regulations.

II.

Because the Commission adopted the ALJ’s factual findings, we review those findings-under a substantial evidence standard. Knox Creek Coal Corp. v. Sec’y of Labor, Mine Safety & Health Admin., 811 F.3d 148, 157 (4th Cir. 2016); see also 30 U.S.C. § 816(a)(1) (providing that the Commission’s findings are “conclusive” if they are “supported by substantial evidence on ' the record considered as a whole”). Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Almy v. Sebelius, 679 F.3d 297, 301 (4th Cir. 2012) (internal quotations omitted) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). We review the Commission’s legal conclusions de novo, affording deference when appropriate to the Secretary’s interpretations of ambiguous statutory language. Knox Creek Coal, 811 F.3d at 157 (citing Sec’y of Labor ex rel. Wamsley v. Mut. Mining, Inc., 80 F.3d 110, 113-15 (4th Cir. 1996)).

A.

Congress enacted the Mine Act to address the “urgent need to provide more effective means and measures for improving the working conditions and practices” in the nation’s mines. 30 U.S.C. § 801(c). In so doing, Congress made plain that the “first priority and concern of all in the coal ... mining industry must be the health and safety of its most precious resource— the miner.” Id. § 801(a). To that end, Congress explained that mine operators “have the primary responsibility to prevent the existence of’ dangerous conditions in their mines. Id. § 801(e). The Act also authorizes the Secretary of Labor to adopt “mandatory health or safety standards for the protection of life and prevention of injuries in coal or other mines.” Id. § 811(a).

Promulgated pursuant to this rulemak-ing authority, the Fire Equipment Rule requires mine operators to ensure that “[a]ll firefighting equipment ... be maintained in a usable and operative condition.” 30 C.F.R. § 75.1100-3. MSHA regulations explicitly include “waterlines” among designated “firefighting equipment” that must be installed in all covered mines. See id. § 75.1100~l(a) (requiring lines capable of delivering 50 gallons of water a minute at a nozzle pressure of 50 pounds per square inch). Similarly, the Mining Equipment Rule provides that all “[m]obile and stationary machinery and equipment shall be maintained in safe operating condition and machinery or equipment in unsafe condition shall be removed from service immediately.” Id. § 75.1725(a).

The Mine Act further authorizes the Secretary, acting through MSHA, to conduct inspections to assess compliance with mine safety regulations. 30 U.S.C. § 813(a). Beyond these regular inspections, the Act mandates quarterly inspections of each underground coal mine “in its entirety.” Id. MSHA inspectors are responsible for issuing citations for any identified violations and otherwise assisting mine operators in complying with applicable regulations. Id. §§ 813(a), 814(a). Where, as here, investigators determine that a violation is either “of such a nature as could significantly and substantially contribute to the cause and effect of a ... mine safety or health hazard” or otherwise “caused by an unwarrantable failure of [the] operator to comply with [MSHA] mandatory health or safety standards,” these findings must be included in any resulting citation and may lead to enhanced penalties and other potential sanctions. See id. §§ 814(d)(1), (d)(2), (e).

B.

Consol first contends that it lacked adequate notice that MSHA interpreted the Fire Equipment Rule to require mine operators to maintain shutoff valves on central waterlines in operable condition. As a result, Consol asserts that it was deprived of due process before facing civil penalties for failing to ensure that the damaged shutoff valve at issue here could be fully closed. We disagree.

The Due Process Clause of the Fifth Amendment protects parties from being deprived of property without fair notice. U.S. Const. amend. V; United States v. Hoechst Celanese Corp., 128 F.3d 216, 224 (4th Cir. 1997). For this reason, and in light of the “quasi-criminal” nature of civil penalties, we have long recognized that “parties subject to ... administrative sanctions are entitled to ... ‘clear notice’ ” of what conduct is proscribed by a regulation before being subject to monetary, penalties for a particular violation. Id. (quoting First Am. Bank of Va. v. Dole, 763 F.2d 644, 651 n.6 (4th Cir. 1985)). Whether a sanctioned party had adequate notice of a particular violation turns on the “relevant facts of each case.” Id. (citing United States v. Bennett, 984 F.2d 597, 605 (4th Cir. 1993)).

Here, the ALJ explained that the Con-sol’s violation of the Fire Equipment Rule involved two interrelated issues. First, and most significantly,-.accumulated material on the exterior, of a shutoff valve on the main six-inch waterline prevented the valve from fully closing, permitting water to continue to flow into the damaged manifold as the miners attempted to reassemble the severed fire valve. Second, lacking manufacturer-provided leverage bars, the miners were unable to close the valve fully before attempting to reinstall the fire valve.

The parties agree that, prior to the accident, MSHA never alerted Consol that the agency viewed the condition of shutoff valves in the mine as a violation of the Fire Equipment Rule. Absent explicit prior notice, the Commission employs a “reasonably prudent miner” test to determine whether the operator nonetheless had .sufficient notice of the risk of civil penalties arising from a violative -condition. DQ Fire & Explosion Consultants, Inc., 36 FMSHRC 3083, 3087-88 (Dec. 2014); LaFarge N. Am., 35 FMSHRC 3497, 3499-500 (Dec. 2013). Under this standard, the Commission considers “whether a reasonably prudent person familiar with the mining industry and the protective purposes of the standard would have recognized the specific prohibition or-requirement of the standard.” DQ Fire & Explosion Consultants, 36 FMSHRC at 3087 (internal quotations omitted) (quoting Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990)).

Although we have yet to adopt the reasonably prudent miner test, our Sister Circuits have used this objective test in considering whether MSHA regulations provide adequate notice of proscribed conduct. See, e.g,, Black Beauty Coal Co. v. Fed. Mine Safety & Health Review Comm’n, 703 F.3d 553, 558 (D.C. Cir. 2012); Mainline Rock & Ballast, Inc. v. Sec’y of Labor, 693 F.3d 1181, 1187 (10th Cir. 2012); Stillwater Min. Co. v. Fed. Mine Safety & Health Review Comm’n, 142 F.3d 1179, 1182 (9th Cir. 1998). This test’s emphasis on the reasonably foreseeable scope of -regulatory directives derives in part from the recognition that administrative agencies tasked with carrying out wide-ranging health and safety . statutes cannot anticipate every danger that may arise under their purview. See Freeman United Coal Min. Co. v. Fed. Mine Safety & Health Review Comm’n, 108 F.3d 358, 362 (D.C. Cir. 1997).

By the same token, a rule requiring explicit notice of any conceivable violation as a condition of imposing civil sanctions would leave open “large loopholes allowing conduct which should be regulated to escape regulation.” Id. (internal quotations omitted) (quoting Ray Evers Welding Co. v. OSHRC, 625 F.2d 726, 730 (6th Cir. 1980); Phillips v. Interior Bd. of Mine Operations Appeals, 500 F.2d 772, 778 (D.C. Cir. 1974) (“Sporadic federal inspections can never be frequent or thorough enough to insure compliance.”). Such a rule likewise would contradict Congress’s admonition that miners and mine operators themselves are primarily responsible for ensuring that their mines are safe. 30 U.S.C. § 801(e); Power Fuels, LLC v. Fed. Mine Safety & Health Review Comm’n, 777 F.3d 214, 217 (4th Cir. 2015); see also Dickenson-Russell Coal Co., LLC v. Sec’y of Labor, 747 F.3d 251, 254 (4th Cir. 2014) (observing that a rule holding MSHA inspectors principally responsible for mine safety “would be manifestly unreasonable and unjustified in light of the clear Congressional purpose to ensure that the primary responsibility for safety remains with the mine owners and miners”) (internal quotations and alterations omitted) (quoting Myers v. United States, 17 F.3d 890, 904 (6th Cir. 1994))). For these reasons, we agree with the Commission and our Sister Circuits that MSHA regulations that permit a reasonably prudent person familiar .with the mining industry and the health and safety objectives of the Mine Act to determine what conduct is required or prohibited provide sufficient notice to mine operators to satisfy due process and support potential sanctions.

Acknowledging that this objective standard applies, Consol nonetheless argues that it lacked fair-notice that its conduct violated the Fire Equipment Rule in this case. Specifically, Consol argues that MSHA inspectors were aware that Consol removed leverage bars provided by the shutoff valve manufacturer soon after the valves were installed. Yet, according to Consol, MSHA inspectors had never identified the bars’ absence as a violation of the rule prior to the accident. According to Consol, the agency’s failure to identify this known condition as a violation left Consol without fan- notice that failing to provide the bars would result in civil sanctions,

In support, Consol notes that the Commission has held that prior inconsistent enforcement has a role, in appropriate circumstances, in determining whether a mine operator has fair notice of a potential violation. See Alan Lee Good, 23 FMSHRC 995, 1005 (Sept. 2001) (explaining that “the consistency of the agency’s enforcement” is one of a “wide variety of factors” considered by the Commission). We agree that an affirmative statement from a regulatory body empowered to implement and enforce a particular regulatory scheme, may be sufficient to deprive regulated parties of clear notice of a later, conflicting interpretation. See Hoechst Celanese Corp., 128 F.3d at 224-27 (finding lack of fair notice where state agency exercising delegated federal authority provided waiver of federal air quality standards based on interpretation later rejected by federal regulators).

Here, however, Consol asks us to go a step further by suggesting that prior inaction is sufficient to deprive an operator of notice. We decline to do so. As previously noted, it is the operator that bears principal responsibility for providing safe working conditions in a mine. 30 U.S.C. § 801(e). Although MSHA investigators are required to issue citations for known violations, id, §§ 813(a), 814(a), Consol offers no support for the proposition that, absent prior enforcement, the agency is precluded from seeking civil penalties related to a particular violation. Quite the opposite: because even the most stringent investigation may fail to identify every potential violation, the objective test we adopt today ensures that MSHA may take action to correct violations that would be apparent to a reasonably prudent miner.

Moreover, although the lack of leverage bars contributed to the miners’ inability to close the valve fully, the ALJ concluded that the “sole reason the valve did not close ... was the accumulation of material around the handle stop.” J.A. 858 (emphasis added). In fact, investigators determined after the accident that the valve could not be fully closed even under significant force. For this reason, MSHA’s failure to recognize the absence of leverage bars prior to the accident does not call into question the ALJ’s finding that a reasonably prudent miner would have recognized that ah inoperable shutoff valve must be replaced under MSHA’s Fire .Equipment Rule.

Resisting this conclusion, Consol argues that it lacked notice that the shutoff valves themselves qualified as “firefighting equipment” within the .meaning of the rule. Specifically, Consol emphasizes that the valves control the flow of water through the mine’s central waterline, which delivers water for a variety of purposes throughout the mine. In Consol’s view, the valves thus do not qualify as “firefighting equipment” and, to the extent that MSHA now contends that they do, Consol lacked notice that the agency interpreted the Fire Equipment Rule to encompass the valves.

As an initial matter, we reject Consol’s contention that -shutoff valves on a mine’s central waterline do -not qualify as “firefighting equipment.” There is ample evidence in the record to demonstrate that such valves are- an integral element of a mine’s fire suppression system. For example, the ALJ noted- that the valve involved in the accident at issue was included on the mine’s fire protection map. Further, as previously explained, MSHA regulations specifically include waterlines among required firefighting equipment, with MSHA requiring that these, lines be capable of delivering specified flow-rates to ensure that fires may be effectively extinguished. 30 C.F.R. § 75.1100-l(a). At oral argument, counsel for Consol acknowledged that, had miners been unable to fully open a shutoff valve, the flow of water may fall below these minimum thresholds, violating the Fire Equipment Rule. Much the same, here, damage to the shutoff valve led directly to a catastrophic failure of the fire valve, which Consol acknowledges constitutes a piece of “firefighting equipment.” For this reason, Consol’s effort to distinguish between covered waterlines and the valves that • control the flow of water through those lines is unavailing.

Moreover, we are - unpersuaded that Consol lacked fair notice that the failure to replace ári inoperable shutoff valve would violate the Fire Equipment Rule. Unlike the leverage bars, Consol does not suggest that -MSHA was aware that shutoff valves could not be fully closed. On the contrary, the evidence demonstrates that the valve’s defective condition became reasonably apparent only after miners attempted to close the valves at the time of the accident. Nonetheless, Consol’s assertion that the ALJ improperly focused on the moments immediately preceding the accident misses the mark. Indeed, it is likely often the case that the specific conditions rendering a piece of equipment inoperable become apparent only under certain circumstances. As such, that neither MSHA nor the operator previously noted a particular violation has, little bearing on whether, upon realizing that a valve could not be fully closed, a reasonably prudent miner would recognize that the valve was inoperable and must be removed from service.

In sum, the record evidence demonstrates that a reasonably prudent miner would recognize that using inoperative shutoff valves violated- MSHA regulations and placed miners at risk. Consequently, Consol had fair notice that the failure to replace defective shutoff valves raised the possibility of sanctions, and MSHA is therefore not barred from seeking civil penalties in connection with this violation.

C.

Consol next challenges the ALJ’s conclusion that Addington was acting -as Consol’s agent at the time of the accident, such that any negligence attributable to him in connection with-the accident may be imputed to Consol. Again, Consol is mistaken.

Under the Mine Act, a mine operator may be held responsible for the knowledge and negligence of any person who qualifies as the operator’s “agent” .within the meaning of the statute. See Capitol Cement Corp. v. Sec’y of Labor, Mine Safety & Health Admin., 229 F.3d 1141, 2000 WL 1205389 at *4 (4th Cir. 2000) (per curiam) (citing Sec’y of Labor v. Southern Ohio Coal Co., 4 FMSHRC 1458, 1463 (Aug. 1982)). The Act defines “agent” to mean “any person charged with responsibility for the operation of all or a part of a coal or other mine or the supervision of the miners in a coal or other mine.” 30 U.S.C. § 802(e).

We have explained that this “broad definition of agent indicates that Congress did not intend to limit the vicarious liability of an owner or lessee to common law concepts of agency.” Bituminous Coal Operators’ Ass’n v. Sec’y of Interior, 547 F.2d 240, 247 (4th Cir. 1977). And, in applying this definition, the Commission and other Circuits have focused on whether the miner exercised managerial or supervisory responsibilities at the time of his negligent conduct. Martin Marietta Aggregates, 22 FMSHRC 633, 637-38 (May 2000); see also Original Sixteen to One Mine, Inc. v. Fed. Mine Safety & Health Admin., 175 Fed. Appx. 825, 827 (9th Cir. 2006).

Applying this standard here, the ALJ concluded that Addington served as a supervisor—and therefore was Consol’s “agent”—when he oversaw the miners’ efforts to repair the damaged fire valve. In reaching this conclusion, the ALJ acknowledged that Addington had never overseen an equipment move, but noted that Serm-ones expected Addington to act as a foreman during the move. The ALJ further observed that the other testifying miners referred to Addington as the “boss” and agreed that he was in charge of Green and Saunders as they moved the shuttle car through the mine. J.A. 855. Finally, the ALJ rejected Consol’s suggestion that, because Addington lacked experience moving equipment, he was not in a position to oversee Green and Saunders as they attempted to repair the damaged valve. To so hold, the ALJ explained, would allow mine operators to avoid liability by assigning untrained foreman to oversee tasks with which they are unfamiliar.

On appeal, Consol renews its argument that, lacking experience moving equipment, Addington was not in a position to act as a supervisor at the time of the accident. Consol further notes that miners frequently moved equipment through the mine without the assistance of a foreman, and Addington was assigned to assist Green and Saunders merely to act as an “extra set of eyes” and learn more about moving equipment through the mine. Appellant’s Br. at 16. In light of this evidence, Consol faults the ALJ’s “conclusory” finding that Addington was acting as Consol’s agent at the time of the accident and suggests that the ALJ simply assumed that, as a foreman, Addington was by definition an agent within the meaning of the Mine Act. Id. at 17.

We disagree. The ALJ’s conclusion that Addington acted as Consol’s agent in responding to the damaged valves is amply supported by the evidence. Importantly, to determine whether Addington’s negligence may be imputed to Consol, the parties agree that we must consider whether he “exercised managerial responsibilities at the time of his negligent conduct.” Martin Marietta Aggregates, 22 FMSHRC at 638 (citing Rochester & Pittsburgh Coal Corp., 13 FMSHRC 189, 194 (Feb. 1991)). In this light, Consol misplaces reliance on Adding-ton’s authority to direct the movement of the shuttle car. Instead, the relevant question is whether the ALJ properly held Consol responsible for Addington’s failure to recognize the danger presented by the damaged valves and subsequent failure to respond appropriately to that danger. Pocahontas Fuel Co. v. Andrus, 590 F.2d 95 (4th Cir. 1979) (per curiam) (upholding MSHA orders attributing knowledge of rank-and-file miner - assigned to conduct pre-shift safety examination to operator).

With this in mind, testimony elicited from the miners provides significant support for the ALJ’s findings. In particular, although Semones testified that he did not expect Addington to direct Green and Saunders as they moved the shuttle car, he acknowledged that he expected Addington to act as a foreman during the move. Sem-ones testified that he expected Addington to assign tasks to the other miners; ensure compliance with company policies; remind the other miners to wear safety gear; and, most important, . alert Semones in the event of an emergency. See J.A. 686-89. Similarly, although Green and Saunders did not await instructions from Addington before attempting to reassemble the broken fire valve, Green testified that he would not have ignored instructions from Addington and would have stopped working to.repair the valve if Addington had directed him to do so. Thus, Green testified that, because Addington did not provide any direction to the contrary, he assumed Addington approved of the miners’ efforts to reattach the valve.

In the end, Green’s testimony that he would have followed Addington’s instructions in the most critical moments preceding the accident—that is, while the miners attempted to repair the damaged fire valve—supports the ALJ’s finding that Ad-dington was acting as a supervisor “at the time of his negligent conduct.” Original Sixteen to One Mine, 175 Fed.Appx. at 827. Likewise, Addington’s testimony that he contacted Semones to report the damaged valve indicates that he understood that he was responsible for managing the miners’ response. Finally, the ALJ correctly dismissed Consol’s suggestion that, because Addington failed to supervise Green and Saunders more closely as they attempted to repair the valve, he cannot be viewed as Consol’s agent.

As such, substantial evidence supports the ALJ’s conclusions, and therefore those conclusions are conclusive. Almy, 679 F.3d at 301-02. Accordingly, because Addington was acting as Consol’s agent in connection with the accident response, the ALJ properly imputed his knowledge and negligence in connection with the accident to Consol.

D.

Finally, Consol contests the ALJ’s finding that both of the violations resulted from Consol’s unwarrantable failure to comply with MSHA regulations. As noted, we review these findings “to determine if they are supported by substantial evidence in the record.” Windsor Coal Co. v. Sec’y of Labor, 166 F.3d 337 (4th Cir. 1998) (per curiam) (citing authorities).

Under § 104(d) of the Mine Act, civil sanctions resulting from the failure to comply with MSHA health and safety regulations are determined based on the significance of the violation and the degree of negligence exhibited by the operator. See 30 U.S.C. § 814(d)(1). Violations found to be “significant and substantial” or to have resulted from an operator’s “unwarrantable failure” to comply with MSHA regulations lead to increased fines and other penalties. Id. §§ 814(d); 30 C.F.R. § 100.3(a), (d), (e); Knox Creek Coal, 811 F.3d at 153; Eagle Energy, Inc. v. Sec’y of Labor, 240 F.3d 319, 321-22 (4th Cir. 2001).

Here, the ALJ found that both of the charged violations resulted from Consol’s unwarrantable failure to comply with applicable MSHA regulations. In so doing, the ALJ considered a variety of “aggravating factors” identified by the Commission as relevant to determining whether an operator demonstrates at least a “serious lack of reasonable care” in failing to abide by a particular regulation. J.A. 844.

In general, an- “unwarrantable failure” involves “conduct that is ‘not justifiable’ or is ‘inexcusable,’” Windsor Coal Co., 166 F.3d at 337 (quoting Sec’y of Labor v. S & H Mining, Inc., 15 FMSHRC 2387, 2390 (1993))—that is, an operator’s “aggravating conduct constituting more than ordinary negligence,” Eagle Energy, 240 F.3d at 321-22. The Commission has identified a variety of factors to be considered in determining whether a violation constitutes an unwarrantable failure to corrtply. These factors include: “(1) the extent of the violative condition, (2) the length of time that the violative condition existed, (3) whether the violation posed a high degree of danger, (4) whether the violation was obvious, (5) the operator’s knowledge of the existence of the violation, (6) the operator’s efforts in abating the violative condition, and (7) whether the operator had been placed on notice that greater efforts were necessary for compliance.” Wolf Run Mining Co., 35 FMSHRC 3512, 3520 (Dec. 2013) (citing authorities); Black Beauty Coal Co., 703 F.3d at 560.

After reviewing each of these factors in this case, the ALJ concluded that each violation resulted from an unwarrantable failure to comply with MSHA regulations. As to the fire equipment violation, the ALJ concluded that the failure to ensure that all shutoff valves on the main waterline could be fully closed “stemmed from extensive underlying negligence.” J.A. 866. In particular, the ALJ noted that Consol had long failed to maintain the valve in a clean condition and removed the leverage bars soon after the valve was installed. Moreover, the ALJ explained that, at the time of the accident, the inoperable shutoff valve was obviously open, posing significant danger to surrounding miners. Finally, the ALJ cited Addington’s failure to recognize and properly address this danger—negligence, which the ALJ properly imputed to Consol, see supra Part II.C, as further evidence of Consol’s negligent failure to replace the damaged shutoff valve before attempting to repair the severed fire valve. Thus, although MSHA had never previously cited Consol’s failure to provide leverage bars, the ALJ concluded that this lack of notice was “outweighed by the very significant aggravating factors” counseling in favor of an enhanced penalty. Id.

Likewise, with respect to the Mining Equipment Rule violation, the ■ ALJ explained that, though relatively brief in duration and small in scale, the damage to the fire valve was obvious and presented significant danger to numerous' miners. Given that passing machinery frequently struck protruding valves (including at least one prior incident involving a similar, if less severe, injury) and that Addington was aware that this particular valve was damaged but failed to more closely supervise Green and Saunders, the ALJ found that Consol displayed an aggravated lack of due care in failing to remove the damaged valve from service.

Consol contests these findings on two bases. First, Consol argues that the ALJ’s finding that the fire valve’s inoperability was obvious is not supported by the record. Specifically, Consol notes that the miners were initially able to reattach the valve with a pipe wrench and that MSHA’s expert testified that the damage to the valves was apparent only upon closer investigation. Consol further suggests that signs that the shutoff valve was not fully closed at the time of the accident would not have been apparent in the mine setting. ,

Again, however, substantial evidence supports' the ALJ’s conclusions, and thus we may not set them aside On appeal. Windsor Coal Co., 166 F.3d at 337. As to the fire valve, the ALJ relied on testimony from Green that he had to forcibly reattach the damaged valve, as well as testimony from the MSHA’ inspector that anyone familiar with such a valve would understand that it likely would be damaged under the circumstances, to find that the damage to the threading would have been obvious at the time of the accident. Likewise, the ALJ noted that the valve manufacturer’s manual suggests that disassem-bly of the valve'may damage the valve and render it inoperable. The ALJ also relied on the MSHA investigator’s testimony that the damaged shutoff valve was audibly and visibly open at the time of the accident, as well as the miners’ testimony that water continued to flow out of the manifold as they began to reattach the broken fire valve, to conclude that the shutoff valve was obviously not functioning at the time of the accident. The MSHA inspector likewise testified that a second mine foreman confirmed that the valve was “audibly leaking” soon after the accident. J.A. 86.

Second, relying on its earlier argument that Addington did not serve as Consol’s agent, Consol suggests that the ALJ improperly considered Addington’s knowledge and actions in assessing Consol’s negligence in connection with the. accident. As previously explained, however, the. ALJ did not reversibly err in concluding that Addington qualified as Consol’s agent with respect to the ■ miners’ response to the damaged fire valve. . Supra Part II.C. Moreover, even absent such imputation, the ALJ’s unwarrantable-failure findings are supported by substantial evidence. As the ALJ explained, the present accident followed an extensive history of similar incidents in the mine. For instance, the mine’s safety supervisor testified that he was aware of the risk of damaging fire valves while moving equipment. And other miners agreed that valves were struck frequently by moving equipment. Similarly, the ALJ reasonably concluded that the material on the inoperable shutoff valve would have accumulated over time and would have been readily apparent upon close inspection. In fact, following the accident, Consol took steps to ensure that leverage bars are accessible throughout the mine and rerouted the entire waterline to move it farther away from the haulage track.

In light of the record evidence showing that Consol was or should have been aware of the conditions that led to the accident well before the accident, the ALJ’s conclusion that Consol demonstrated more than ordinary negligence in failing to address these conditions is supported by substantial evidence. Windsor Coal Co., 166 F.3d at 337 (upholding unwarrantable-failure finding where the operator “knew of the problems with [mine equipment, but] failed to take adequate measures to ... prevent” an obvious danger). Consequently, we affirm the ALJ’s findings that the challenged violations stemmed from Consol’s unwarrantable failure to comply with applicable MSHA health and safety regulations.

III.

After carefully considering the record as a whole, we conclude that the ALJ did not err in finding that Consol had fair notice that the dangerous conditions that ultimately led to the avoidable death of a miner constituted an “unwarrantable failure” to comply with applicable mine safety regulations. Accordingly, for the foregoing reasons, the petition for review is denied.

PETITION FOR REVIEW DENIED

      . Addington later testified that he believed that water flowing through the manifold was simply a reservoir in the waterline that remained after the shutoff valves were closed.

      , ' The ALJ also found that each of the charged violations was significant and substantial, and Consol does not contest that finding on appeal.