Case No. 81-ERA-1

William Dan DeFord
    Complainant

    v.

Tennessee Valley Authority
    Respondent

Complainant has moved for reconsideration of my order of April 30, 1984 to supplement the relief granted in that order by increasing the amount awarded for medical expenses, damages for mental pain and suffering, and attorneys' fees, or in the alternative to remand the case to the ALJ to take evidence to determine whether such additional relief is appropriate. Complainant submitted, by way of affidavit, an itemization of his additional medical expenses and attorneys' fees incurred between December 1980 and May 1984. Respondent has filed a memorandum of law in opposition to the motion.

    There is not provision in either section 5851 of the Energy

Reorganization Act or Department of Labor implementing regulations for reconsideration of a final order of the Secretary. Assuming that Congressional silence on this question does riot indicate an intent to prohibit motions of this kind, I will look to other areas of law for guidance. One principal source, of course, is the Federal Rules of Civil Procedure, which have often been incorporated in rules of practice for administrative proceedings (see, e.g. 29 CFR 18.1; 41 CFR 60-30.1 (1982).) There are only two rules which might apply to this motion, Rule 59, New Trials; Amendment of Judgments, or Rule 60, Relief from Judgment or Order

    Under either rule, the only arguable basis for complainant's motion is that there is newly discovered evidence which justifies an amended order or a new trial. But the newly discovered evidence must relate to facts existing at the 'Lime of trial of which the moving party was excusably ignorant though he exercised due diligence to discover them. Wright & Miller, Federal Practice and Procedure, § 2805, (1973). A similar standard is applicable under the Tort Claims Act. Recovery there is limited to the amount demanded in the administrative claim unless a higher amount can be shown based on newly discovered evidence not reasonably discoverable at the time or intervening facts can be proven. See 28 U.S.C. 2675 (b) and McDonald v. U.S., 555 F. Supp. 935 (D. Pa. 1983).

    Some of the cases under the Tort Claims Act where these standards have been applied illustrate the circumstances in which a motion such as that made by DeFord here may be granted. Plaintiff, of course, has the burden in the original proceeding of proving each element of damage including future medical expenses and future pain and suffering. See McDonald v. U.S,, supra; Saleeby v. Kingway Tankers, 531 F. Supp. 879 (S.D.N.Y., 1981); Griffith v. Wheeling Pittsburg Steel Corp., 452 F. Supp. 841 (D.Pa. 1978). In McDonald, the court allowed an amendment of the administrative claim to seek additional damages because the case involved injuries resulting from injection of Swine Flu vaccine, including Guillain-Barre Syndrome. The court put the case in the class of cases involving complex and poorly understood conditions, calling it a "very subtle and complex injury, an injury which is to this day a mystery to the medical field." 555 F. Supp. 935, quoting from Smorgiassi v. U.S,, (D. Pa. July 1, 1981, unreported opinion.)

    DeFord had an opportunity in the original hearing before the ALJ to prove his future medical expenses and damages for mental pain and suffering. He did offer some evidence as to future mental pain and suffering, that he was at the time of the hearing seeing a psychiatrist, as well as evidence of damage to his reputation, which includes an element of future injury. My order on remand of April 30, 1984 included an award of damages for both mental pain and suffering and injury to reputation which took future injury into account. (See the Order on Remand at pages 3-4 which discusses the testimony of Dr. Prince that DeFord should not return to work (i.e., in the future) as long as his symptoms persist, and the degree of speculation involved in evaluating damage to reputation in the future.) But he presented no evidence on estimated future medical expenses. DeFord's medical condition caused by TVA's action, the complication of his preexisting mitral valve prolapse, is not such a complex, unusual or poorly understood problem as would justify granting a Rule 59 or Rule 60 motion.

    My decision on DeFord's "motion to supplement" my Order on Remand virtually forecloses entertaining the motion for additional attorneys' fees. Section 5851 (b) provides for the award of attorneys' fees "incurred...by the complainant for, or in connection with the bringing of the complaint upon which the [Secretary's] order was based." Having found that there is no basis here for either a new trial or relief from the original judgment, the work of DeFord's attorney on this post-judgment motion cannot be considered as "in connection with the bringing of the complaint". Work performed in that connection was completed upon the issuance of the Secretary's order. DeFord's motion to reconsider and supplement the Secretary's Order on Remand is accordingly DENIED.

       RAYMOND J. DONOVAN
       Secretary of Labor

Dated: August 16, 1984
Washington, D.C.