Jim Walter Resources, Inc.

Plain-English summary

Jim Walter Resources sought to reopen uncontested civil penalty assessments after paying them in full, arguing that the penalties had been improperly increased under the Secretary's interim excessive-history program. The Commission held that it has jurisdiction to reopen final orders in appropriate circumstances under Rule 60(b), but concluded that JWR did not satisfy the requirements for relief based on misrepresentation or equitable principles. The Commission denied JWR's motion for partial relief and dismissed the proceeding. It did not order refunds.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a), 30 U.S.C. § 820(i), 5 U.S.C. § 553(b)(3)(A), and 29 C.F.R. § 2700.1(b)
• Outcome: The motion to reopen was denied and the proceeding was dismissed.
• Key point: The Commission may reopen a final order in appropriate circumstances, but a party that paid an uncontested penalty must still satisfy the applicable Rule 60(b) or equitable-relief criteria.

Full text (FMSHRC public release)

May 25, 1993

JIM WALTER RESOURCES, INC. :
:
v. : Docket No. SPECIAL 92-01
:
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :

BEFORE: Holen, Chairman; Backley, Doyle and Nelson, Commissioners

                                 DECISION

BY THE COMMISSION:

  In this proceeding arising under the Federal Mine Safety and Health Act

of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Jim Walter
Resources, Inc. ("JWR") filed with the Commission a Notice of Contest and
Motion for Partial Relief from Final Order seeking to reopen certain
uncontested civil penalty assessments in which JWR had paid in full the
penalties proposed by the Secretary of Labor. As the basis for its motion,
JWR cites Rule 60(b), Federal Rules of Civil Procedure ("Fed. R. Civ. P."),
and principles of equity.

  This is the lead case in a group of 19 special proceedings in which

similar notices of contest and motions for relief from final orders were filed
by mine operators (Docket Nos. SPECIAL 92-02 through -16; and 93-01 through
-03). The operators contend that the penalties in dispute were invalidly
augmented on the basis of the interim "excessive history" program set forth in
the Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"),
which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992),
and related cases, could be accorded no legal weight or effect. The operators
seek refunds of those portions of paid penalties attributable to augmentations
under the PPL.

  The Commission granted the motions of the American Mining Congress

("AMC") and National Coal Association ("NCA") to participate as amici curiae
and heard oral argument. For the reasons that follow, we hold that the
Commission possesses jurisdiction to reopen final orders, including orders in
which uncontested penalties were paid, but conclude that JWR's request does
not meet the requisite criteria under Fed. R. Civ. P. 60(b) or principles of
equity for the grant of such relief. Accordingly, we deny JWR's motion to
reopen and we dismiss this proceeding.

                                  I.

                              Background

   A.   General Legal and Regulatory Background

  The Mine Act establishes a bifurcated civil penalty system in which the

Secretary proposes and the Commission assesses, based on specified
criteria,(Footnote 1) all civil penalties for violations of the Act, of
mandatory safety and health standards, and of other regulations issued under
the Act. 30 U.S.C. § 815(a) & (d), 820(a) & (i); see, e.g., Sellersburg
Stone Co., 5 FMSHRC 287, 290-92 (March 1983), aff'd, 736 F.2d 1147 (7th Cir.
1984). Section 105(a) of the Act states in pertinent part that, after the
Secretary has issued a citation or withdrawal order to a mine operator for an
alleged violation, he "shall ... notify the operator ... of the civil penalty
proposed to be assessed ... for the violation...." 30 U.S.C. § 815(a).
Section 105(a) allows the operator 30 days within which to contest a proposed
penalty and further provides that, if the operator does not contest it, the
assessment "shall be deemed a final order of the Commission and not subject to
review by any court or agency." Id.

  The Secretary, acting through the Department of Labor's Mine Safety and

Health Administration ("MSHA"), promulgated regulations at 30 C.F.R. Part 100
to implement the proposal of penalties.(Footnote 2) Two methods were provided
for calculating proposed penalties, regular and special assessment. In 1982,
MSHA added a "single penalty" assessment of $20 for a timely abated non-
significant and substantial ("non-S&S") violation.(Footnote 3) See Drummond,
14 FMSHRC at 663-64.

1 Section 110(i) of the Act provides in relevant part:

        In assessing civil monetary penalties, the Commission
        shall consider the operator's history of previous
        violations, the appropriateness of such penalty to the
        size of the business of the operator charged, whether
        the operator was negligent, the effect on the
        operator's ability to continue in business, the
        gravity of the violation, and the demonstrated good
        faith of the person charged in attempting to achieve
        rapid compliance after notification of a violation.

30 U.S.C. § 820(i).

2 The civil penalty regulations were adopted pursuant to section 508 of the
Mine Act. 30 U.S.C. § 957. See Drummond, 14 FMSHRC at 663.

3 The S&S terminology is taken from section 104(d) of the Act, which
distinguishes as more serious in nature any violation that "could
significantly and substantially contribute to the cause and effect of a ...
mine safety or health hazard." 30 U.S.C. § 814(d)(1).

  In Coal Employment Project v. Dole, 889 F.2d 1127, 1136-38 (D.C. Cir.

1989), the D.C. Circuit found that the Secretary's procedure for assessing
single penalties failed to take into account violation history, one of the
Mine Act's penalty criteria. The Court remanded the case to MSHA "for
appropriate amendment of the regulations." 889 F.2d at 1128. The Court
ordered MSHA, in the interim, to consider an operator's history of non-S&S
violations in proposing single penalties and to include an operator's history
of single penalties in proposing regular assessments. 889 F.2d at 1138, 1139.

  Issuance of the PPL was one of the actions taken by MSHA in response to

the Court's interim remand. See Drummond, 14 FMSHRC at 678. The Secretary
did not publish the PPL in the Federal Register but sent it to all operators
on May 29, 1990. In addition to incorporating single penalties in the
violation history scheme, the PPL augmented penalty assessments by specified
percentage amounts, depending on the degree of "excessive history."(Footnote
4) On December 28, 1990, the Secretary published proposed rules, "Criteria
and Procedures for Proposed Assessment of Civil Penalties," which generally
incorporated the provisions of the PPL. 55 Fed. Reg. 53482, 53483. See
Drummond, 14 FMSHRC at 667-68.

   B.   The Drummond Litigation and Related Developments

  The Secretary began proposing civil penalties based on the PPL in May

1990. The Commission docketed 2,803 contests from mine operators contending
      that the proposed penalties were improper because they were not based on the
      Part 100 penalty regulations alone but, instead, were increased in accordance
      with the PPL's interim excessive history program, which, the operators argued,
      had been unlawfully issued outside the notice-and-comment rulemaking process
      required by the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (1988)
      ("APA"). The operators also moved to have the proposed penalties remanded to
      the Secretary for recalculation without reference to the PPL. The Commission
      granted seven petitions for review of decisions by its administrative law
      judges and, while these cases were pending on review, proceedings in the other
      excessive history contests were stayed. The petitions for review resulted in
      Drummond and related decisions.(Footnote 5) See Drummond, 14 FMSHRC at 661-
      62, 669-70.

4 The PPL provided that non-S&S violations, if associated with excessive
history, would no longer be eligible for a single penalty but would be
assessed under the regular assessment formula. PPL at 2. S&S violations
associated with excessive history would receive a regular assessment augmented
by a percentage increase of 20%, 30% or 40%. Violations specially assessed
would receive a similar percentage increase for excessive history. Id.

5 Also issued the same date were a second Drummond decision, 14 FMSHRC 695
(May 1992), as well as: Cyprus-Plateau Mining Corp., 14 FMSHRC 702 (May 1992);
Utah Power and Light Co., Mining Div., 14 FMSHRC 709 (May 1992); Hobet Mining,
Inc., 14 FMSHRC 717 (May 1992); Texas Utilities Mining Co., 14 FMSHRC 724 (May
1992); and Zeigler Coal Co., 14 FMSHRC 731 (May 1992).

  In Drummond, the Commission determined that it possessed subject matter

jurisdiction to review the validity of the PPL and to require the Secretary to
propose penalties in a manner consistent with the Part 100 penalty
regulations. 14 FMSHRC at 673-78. It further determined that the PPL
exceeded the Coal Employment Project interim mandate. 14 FMSHRC at 678-80.
The Commission determined that, under established APA precedent, the PPL could
not be regarded as an interpretative rule, policy statement, or agency
procedure excepted from notice-and-comment rulemaking (see 5 U.S.C. § 553(b)
(3)(A)) (14 FMSHRC at 684-88), and that it did not otherwise qualify for
exception from that process (14 FMSHRC at 689-90). The Commission held that
the PPL was an "invalidly issued substantive rule" that could not be "accorded
legal effect." 14 FMSHRC at 692. Accordingly, the Commission remanded the
proposed penalties in Drummond and the related matters to the Secretary for
recalculation in accordance with the existing Part 100 regulations, without
use of the PPL. The 2,779 other pending penalty matters were also remanded to
the Secretary for reproposal in accordance with Drummond.

  By letter dated June 3, 1992, the Department of Labor's Associate

Solicitor advised the Commission's Chief Administrative Law Judge that the
Secretary had decided that he would not appeal Drummond. The Associate
Solicitor also stated, in effect, that new penalties would be proposed for S&S
violations with excessive history, i.e., to rescind penalty augmentations, but
not for non-S&S violations with excessive history.

  While Drummond was pending on review, certain final Part 100 rules were

published, containing, as relevant here, the final version of MSHA's interim
action in response to the Coal Employment Project order to include single
penalties in an operator's history of violations. 57 Fed. Reg. 2968-71
(January 24, 1992). That same day, the Secretary published a revised proposed
penalty rule. 57 Fed. Reg. 2972-77. On January 29, 1992, MSHA also issued
Program Policy Letter No. P92-III-1 ("PPL-II"), which superseded the PPL and
mirrored the new proposed penalty rule. PPL-II, like the earlier PPL, was not
published in the Federal Register. Drummond, 14 FMSHRC at 668.

  A final penalty rule, taking into account an operator's history of

violations in determining eligibility for a single penalty assessment, was
issued by the Secretary on December 21, 1992, completing MSHA's response to
the Coal Employment Project order.(Footnote 6) 57 Fed. Reg. at 60690-97. The
penalty system underlying the final rule continues to incorporate the Mine
Act's penalty criteria, including violation history. The final rule, however,
is significantly different from MSHA's two PPL's and the two proposed rules in
that it does not provide for percentage augmentations of penalties based on
excessive history.

6 The Coal Employment Project Court had retained jurisdiction over its remand
to MSHA. 889 F.2d at 1138, 1139. Upon receiving the Secretary's Notification
of Completion of Rulemaking, the Court issued an order removing the case from
its docket on January 19, 1993, thus terminating its jurisdiction in the case.

   C.   JWR's Motion

  Relying on Drummond's invalidation of the PPL, JWR filed its Notice of

Contest and Motion for Partial Relief from Final Order on June 29, 1992.
Eighteen similar pleadings from other operators followed. In all these
matters, the operators had failed to contest, within the time provided by
section 105(a) of the Act, the proposed penalties and, instead, had paid the
penalties in full. The Commission heard oral argument on January 28, 1993.

                                   II.

                        Disposition of Issues

  Two major issues are presented: (1) whether, in view of the language in

section 105(a) of the Mine Act, the Commission possesses jurisdiction to
reopen these final orders; and (2), if the Commission does have such
jurisdiction, whether JWR has satisfied appropriate criteria for such
reopening. We answer the first question in the affirmative and the second in
the negative.

   A.   Commission Jurisdiction

        1.    Parties' arguments

  JWR and the amici (hereafter, the "operators") do not seek refund of the

basic penalty amounts nor do they contest the underlying citations. Rather,
they request reduction of the penalties by the amount attributable to
augmentation under the PPLs. They assert that Fed. R. Civ. P. 60(b) ("Rule
60(b)"), which the Commission has invoked frequently to reopen final orders
such as default judgments, may serve as the basis for reopening these matters,
which have become "final orders of the Commission" by operation of section
105(a). The operators point to case law under the Occupational Safety and
Health Act of 1970, 29 U.S.C. § 651 et seq. (1988)(the "OSHAct"), permitting
Rule 60(b) relief, notwithstanding analogous "final order" language in section
10(a) of that statute, 29 U.S.C. § 659(a). See, e.g., J.I. Hass Co. v. OSHRC,
648 F.2d 190, 192-95 (3rd Cir. 1981). The operators also note that section
105(a) specifically precludes "agency" but not "Commission" review and, thus,
does not bar this Commission's review of these matters.

  The Secretary contends that the Commission is without jurisdiction to

consider JWR's challenge because JWR failed to timely contest the penalty
proposals as provided in section 105(a) of the Mine Act. He relies on the
language in section 105(a), which provides that a final order of the
Commission is not subject to review "by any court or agency." 30 U.S.C. § 815(a). Thus, by operation of the statute, these matters are final and ma
not be reopened for review by the Commission.

        2.    Disposition

  In construing the Act, the Secretary, this Commission, and the Courts of

Appeals must give effect to the "unambiguously expressed intent of Congress."
Chevron U.S.A. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).

In general, the Commission also is required to accord "weight" to the
Secretary's interpretations of the statute and his implementing regulations.
S. Rep. No. 181, 95th Cong., 1st Sess. 49 (1977)("S. Rep."), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d
Sess., Legislative History of the Federal Mine Safety and Health Act of 1977,
at 637 (1978)("Legis. Hist."). However, as the Commission stated in Drummond,
"we perceive no indication in the statute or its legislative history, or in
sound policy, that [Commission] deference to the Secretary's views of
Commission jurisdiction is required." 14 FMSHRC at 674 n.14.

  The Secretary argues that the language of section 105(a), "not subject

to review by any court or agency," is unambiguous and precludes the Commission
itself from reopening its final orders. We disagree. In our view, section
105(a) merely sets forth a general principle of finality covering the
procedure for the contest of citations and proposed penalties. The Commission
has recognized that, in appropriate circumstances, it may grant various forms
of relief from final Commission orders. See generally, e.g., Danny Johnson v.
Lamar Mining Co., 10 FMSHRC 506, 508 (April 1988); M.M. Sundt Const. Co., 8
FMSHRC 1269, 1270-71 (September 1986). In reopening final orders, the
Commission has found guidance in, and has applied, "so far as practicable,"
Rule 60(b), dealing with relief from judgments or orders.(Footnote 7) See
Commission Procedural Rule 1(b), 29 C.F.R. § 2700.1(b).

  The legislative history indicates that Congress enacted section 105 to

end the lengthy and repetitive procedure of penalty assessment and collection
under the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et
seq. (1976)(amended 1977)("1969 Coal Act"). UMWA v. Ranger Fuel Co., 12
FMSHRC 363, 372-73 (March 1990). Under the 1969 Coal Act, operators had the
right to seek de novo review of those penalties in United States District
Courts. See S. Rep. at 16, 44, 45, reprinted in Legis. Hist. at 604, 632,

633. The legislative history makes clear that the "not subject to review"
     language was intended to abolish this cumbersome process by preventing
     collateral attacks on penalty determinations. See, e.g., S. Rep. at 34, 45-
     46, reprinted in Legis. Hist. at 622, 633-34; see also Legis. Hist. at 89

7 In relevant part, Rule 60(b) provides:

              Mistakes; Inadvertence; Excusable Neglect; Newly
        Discovered Evidence; Fraud, etc. On motion and upon
        such terms as are just, the court may relieve a party
        or his legal representative from a final judgment,
        order, or proceeding for the following reasons: (1)
        mistake, inadvertence, surprise, or excusable neglect;
        ...
        (3) fraud (whether heretofore denominated intrinsic or
        extrinsic), misrepresentation, or other misconduct of
        an adverse party; (4) the judgment is void; ... or (6)
        any other reason justifying relief from the operation
        of the judgment. The motion shall be made within a
        reasonable time, and for reasons (1) ... and (3) not
        more than one year after the judgment, order, or
        proceeding was entered or taken....

(remarks of Sen. Williams introducing S. 717, the bill upon which the Mine Act
was based). There is nothing in the legislative history to suggest that
Congress intended to bar the Commission itself from granting Rule 60(b) type
post-judgment relief in appropriate circumstances.(Footnote 8)

  The Commission's view of section 105(a) is supported by analogous case

law. Section 10(a) of the OSHAct, 29 U.S.C. § 659(a), also provides that an
uncontested citation or proposed penalty "shall be deemed a final order of the
[Occupational Safety and Health Review] Commission and not subject to review
by any court or agency." In J.I. Hass, the Third Circuit held that section
10(a) of the OSHAct cannot be reasonably construed to prohibit all late-filed
notices of contest:

        The Secretary contends that the final clause of
        section 10(a) is jurisdictional and must be read
        literally to prohibit review of citations if an
        employer files no timely notice of contest. Under
        this interpretation of section 10(a), once any
        employee of the employer signs the certified receipt
        for the citations, no circumstances would permit a
        late notice of contest. Thus, if an employee signed
        for citations and then was killed while returning from
        the post office, and the letter destroyed, an employer
        with a meritorious defense could still get no relief
        if 15 working days elapsed before he learned of the
        citations. We do not believe that Congress intended
        such a harsh result.

648 F.2d at 194. See also Capital City Excavating Co. v. Donovan, 679 F.2d
105, 109-10 (6th Cir. 1982).

8 Amicus AMC argues that section 105(a) precludes review only by other
agencies and courts but does not explicitly preclude Commission review. AMC
Reply at 7. The Secretary argues that Commission Procedural Rule 25, 29
C.F.R. § 2700.25, which stated that section 105(a) orders were not subject to
review by the Commission or a court, precludes relief. Procedural Rule 25
first appeared in Rule 23 of the Interim Procedural Rules published on March
10, 1978, prior to the assumption of office by Commission members. 43 Fed.
Reg. 10320, 10324 (1978). No explanation of the Interim Rule was provided.
Id. When the Commission adopted its Procedural Rules in 1979, Interim Rule
23, which departed from section 105(a) of the Mine Act, was substantially
retained in Rule 25, without comment. 44 Fed. Reg. 38227, 38229 (1979). The
Commission has published new final Procedural Rules, which took effect on May
3, 1993, and, in a number of instances, has revised the text of rules to
conform to the statute. 58 Fed. Reg. 12158-74 (March 3, 1993). Revised Rule
27, which replaces prior Rule 25, conforms the earlier rule to the language of
section 105(a) of the Mine Act, "not subject to review by any court or
agency." (Emphasis added.) 58 Fed. Reg. 12167. In any event, we construe
the prior rule in a manner consistent with the language of the Mine Act and
the analysis set forth in this decision.

  For the foregoing reasons, we hold that a final order of the Commission

may be reopened by the Commission in appropriate circumstances pursuant to
Rule 60(b).

   B.   Whether JWR Meets Criteria for Post-Judgment Relief

        1.    Parties' arguments

  JWR invokes Rule 60(b)(3), alleging misrepresentation by the Secretary

in the proposal of the penalties, and Rule 60(b)(6), asserting that the
requested relief would ensure that justice is served. JWR alleges that, in
proposing the penalties, the Secretary misrepresented his actions by stating
that the proposals had been calculated pursuant to 30 C.F.R. Part 100, when,
in fact, that was not the case. Only when the Commission in Drummond found
the PPL to be invalid, did JWR realize that it had paid invalidly determined
penalties. The operators argue that it is unfair to require the payment of
illegally proposed penalties and contend on separate equitable grounds that
they should be relieved from these final orders.

  The Secretary responds that the criteria of Rule 60(b) have not been

satisfied. The Secretary points out that the penalty proposals stated on
their face that the penalties had been increased under the excessive history
program. (See Attachment A to JWR's Notice of Contest.) He also notes that
the PPL was disseminated to all regulated operators and, in light of such
notification, the operators cannot claim misrepresentation as to the penalty
calculations. He further argues that these motions are essentially attempts
to change litigating positions in light of subsequent legal developments, and
that neither Rule 60(b) nor other equitable relief is appropriate under such
circumstances.

        2.    Disposition

  Motions to reopen under Rule 60(b) are committed to the sound discretion

of the judicial tribunal in which relief is sought. See, e.g., Randall v.
Merrill Lynch, 820 F.2d 1317, 1320-21 (D.C. Cir. 1987).(Footnote 9) However,
discretion in this regard is not open-ended. As the Court stated in Randall:
"Rule 60(b) is the mechanism by which courts temper the finality of judgments
with the necessity to distribute justice. It is a tool which ... courts are
to use sparingly...." 820 F.2d at 1322. See also Ronald Tolbert v. Chaney
Creek Corp., 12 FMSHRC 615, 619 n.1 (April 1990).

  We reject JWR's Rule 60(b)(3) claim alleging misrepresentation by the

Secretary. In a Rule 60(b)(3) motion, misrepresentation must be shown by
clear and convincing evidence. 11 Wright & Miller, Federal Practice and
Procedure: Civil 2860 (1973), and authorities cited. The Secretary's
notifications to JWR and other operators of the proposed penalties stated
expressly that the penalties were augmented by the excessive history program.
As to the invalidity of the PPL, a conclusion subsequently reached in

9 Because we dispose of JWR's motion on substantive grounds, we do not reach
issues of time limitation.

Drummond, we do not regard this as a "fact" that the Secretary would be
obligated to disclose in proposing penalties. Rather, it is a legal
conclusion that was reached following timely challenges to penalty proposals.
Accordingly, we discern no misrepresentation for Rule 60(b)(3) purposes.

  We are similarly unpersuaded by the operators' Rule 60(b)(6) arguments.

Rule 60(b)(6) provides for relief for "any other reason justifying relief,"
but cannot be used to relieve a party from the duty to take legal action to
protect its interests by challenging dubious enforcement actions. See, e.g.,
Ackermann v. U.S., 340 U.S. 193, 199-202 (1950); McNight v. U.S. Steel Corp.,
726 F.2d 333, 336 (7th Cir. 1984); Wright & Miller, supra 2864. Nor does
Rule 60(b)(6) obviate the general principles of finality of judgments. Here,
JWR chose to pay certain penalties rather than to contest them. JWR now
attempts to rely on the litigation efforts of other operators who questioned
and successfully contested penalties augmented under the PPL. Many operators
questioned the validity of the excessive history program and pursued their
rights under Mine Act review procedures.

     As noted in Parks v. U.S. Life and Credit Corp., 677 F.2d 838 (11th Cir.

1982):

           An unsuccessful litigant may not rely on appeals by
           others and share in the fruits of victory by way of a
           Rule 60(b) motion. ...

                 The strong interest in the finality of
           litigation demands rejection of appellant's
           suggestion. During the pendency of an appeal, the
           parties recognize the possibility of reversal; thus,
           modification of a judgment being appealed impacts not
           at all on finality concerns. "There must be an end to
           litigation some day, and free, calculated, deliberate
           choices are not to be relieved from." [Ackermann v.
           United States,] 340 U.S. 193, 198, 71 S.Ct. 209, 211,
           95 L.Ed. 207 [(1950)].

677 F.2d at 840-41.

   The operators argued that a large operator such as JWR must regularly

process hundreds of notifications of proposed penalties. Its decisions to
contest are largely administrative and cannot realistically be characterized
as deliberate litigation choices. Tr. Oral Arg. 20, 23-26, 32-34. Under the
Mine Act, however, JWR is required to make such deliberate choices and its
failure to contest proposed penalties as provided in section 105 is at its
peril.

  As to the equity principles invoked, the Commission is not a court of

general equity. Cf. Kaiser Coal Corp., 10 FMSHRC 1165, 1169-71 (September
1988). In any event, it is a fundamental premise that equity aids those who
have vigilantly pursued their rights. E.g., 27 Am. Jur. 2d Equity 130
(1966). JWR was less than vigilant.

  We conclude that the operators have failed to make a clear and

convincing demonstration of justification for Rule 60(b)(3) or (b)(6) relief
or for general equitable relief.(Footnote 10)

   C.   Res Judicata and Sovereign Immunity

  The Secretary argues that the paid penalties have a res judicata effect,

precluding JWR's attempt at relitigation. He further contends that sovereign
immunity has not been waived by the United States as to recoupment of these
penalties and, accordingly, any refund is barred, and that the proper forum
for monetary claims is the Court of Claims or a United States District Court.
The operators argue that res judicata is inapplicable under the circumstances
and contend that, notwithstanding sovereign immunity, the Commission possesses
ample power under the Act to direct relief. Given our preceding disposition,
we need not rule on the Secretary's res judicata and sovereign immunity
arguments.

   D.   Merits of the Requested Refunds

  Although we are constrained to deny JWR's motion, we express our

disapproval of the Secretary's actions regarding attempted compliance with the
Coal Employment Project mandate. The Secretary has pursued a confusing course
of action, issuing proposed rules for comment at the same time as he issued
and implemented PPLs outside the aegis of the APA. See Drummond, 14 FMSHRC at
678-90. A joint industry and labor comment received during the rulemaking
process "contended that the proposed excessive history criteria and program
were inherently flawed because they did not target the appropriate [i.e.,
higher fatality rate] mines." 57 Fed. Reg. at 60693 (preamble to final rule).
Based on further substantive analysis, the Secretary deleted from the final
rule percentage augmentations of penalties based on excessive history.

10 Amicus AMC also argues that Rule 60(b)(4) relief is justified in that the
underlying section 105(a) final orders are "void" pursuant to the principles
announced in Drummond. We decline to reach this issue. JWR premised its
motion only on Rule 60(b)(3) and (b)(6) and on equitable principles. Absent
exceptional circumstances, not shown here, an amicus cannot expand the scope
of an appeal beyond the issues raised by the parties. E.g., Richardson v.
Alabama State Bd. of Educ., 935 F.2d 1240, 1247 (11th Cir. 1991); Christopher
M. v. Corpus Christi Ind. Sch. Dist., 933 F.2d 1285, 1292 (5th Cir. 1991).

  The Secretary has argued that making the requested refunds would be

administratively chaotic, because thousands of cases would have to be reopened
and approximately $1,500,000 refunded. Sec. Opp. at 19. However, following
the Commission's remand of penalty cases in accordance with Drummond, the
Secretary recalculated thousands of penalties that had been proposed pursuant
to the PPL and reduced the assessments involved by $859,038. Letter from
Secretary's Counsel to Commission (in response to Commission's written
inquiries) at 2 (February 4, 1993)("Sec. Letter").(Footnote 11) The Secretary
further argues that he is barred from granting refunds, relying, in part, on a
Comptroller General opinion issued more that fifty years ago in matters that
are not analogous. Sec. Surreply Br. at 8-10 & n.7. The Secretary, however,
has not requested the Comptroller General's opinion as to the legality of
refunds in these matters nor did the Secretary seek such opinion on the
refunds he made voluntarily. See Oral Arg. Tr. at 38-39; see also Sec. Letter
at 2. The Secretary has informed the Commission that, as of February 4, 1993,
he had refunded to operators $249,513 in excessive history penalty
overpayments based on "retroactivity considerations." Sec. Letter at 1-2.
These refunds were made by MSHA to remove any "doubt as to the fairness and
consistency of [MSHA's] Assessment policies and procedures." Notification to
Mine Operator[s], Attachment C to JWR's Notice of Contest.

  In not appealing Drummond, in reproposing many penalties in accordance

with Drummond, and in modifying the final penalty rule, the Secretary has
implicitly recognized that percentage augmentations based on excessive history
were misplaced. In other cases involving the excessive history program, the
Secretary has undertaken penalty recalculations and has made refunds on a
broad scale. We urge the Secretary to evaluate further the legality and
feasibility of providing refunds in these matters and to reconsider his
position.

11 We note that, in addition to those reproposals for S&S violations, the
Secretary has agreed, based on Drummond, to reduce penalty proposals for non-
S&S violations with excessive history. See JWR Citation of Supplemental
Authority (Letter of May 21, 1993).

                                 III.

                             Conclusion

  For the foregoing reasons, JWR's motion for relief is denied and this

proceeding is dismissed.

                                        Arlene Holen, Chairman


                                        Richard V. Backley, Commissioner


                                        Joyce A. Doyle, Commissioner


                                        L. Clair Nelson, Commissioner