3. We VACATE the ALJ’s order that Combined pay Hobson $20,000 in compensatory damages because the cost of the tractor that Hobson bought does not constitute an actual pecuniary loss suffered as the result of the unlawful discharge.
4. We AFFIRM the ALJ’s order that Combined pay Hobson $5,000 compensatory damages for his emotional suffering.
5. We AFFIRM the ALJ’s order that Combined pay Randall D. Huggins, Esq. of Shook, Huggins, and Johnson, P.C. the sum of $6440.00 in attorney’s fees and $251.22 for expenses incurred.
SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
WAYNE C. BEYER
Administrative Appeals Judge
[ENDNOTES]
1 U.S.C.A. § 31105 (West 1997). Regulations implementing the STAA are found at 29 C.F.R. Part 1978 (2007). The STAA has been amended since Hobson filed his complaint. See Implementing Recommendations of the 9/11 Commission Act of 2007, P.L. 110-53, 121 Stat. 266 (Aug. 3, 2007). It is unnecessary for us to determine whether the amendments apply to Hobson’s complaint because they are not implicated by the issues presented and thus, even if the amendments were applicable to this complaint, they would not affect our decision.
2 Hearing Transcript (Tr.) 18.
3 Tr. 57.
4 Tr. 19. The parties agree that Hobson was discharged on October 6, rehired on October 8, and discharged again on October 8. Tr. 13, 19-20, 45, 56-57. Hobson’s complaint pertains only to the October 8 discharge.
5 January 31, 2006 Recommended Decision and Order Awarding Attorney’s Fees and Costs.
6 49 U.S.C.A. § 31105 (b)(2)(C); 29 C.F.R. § 1978.109 (c)(1) (2007).
7 Secretary’s Order No. 1-2002, (Delegation of Authority and Responsibility to the Administrative Review Board), 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. § 1978.109(a).
8 29 C.F.R. § 1978.109(c)(3); Lyninger v. Casazza Trucking Co., ARB No. 02-113, ALJ No. 2001-STA-038, slip op. at 2 (ARB Feb. 19, 2004).
9 Clean Harbors Envtl. Servs. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998), quoting Richardson v. Perales, 402 U.S. 389, 401 (1971); McDede v. Old Dominion Freight Line, Inc., ARB No. 03-107, ALJ No. 2003-STA-012, slip op. at 3 (ARB Feb. 27, 2004).
10 5 U.S.C.A. § 557(b) (West 2004).
11 Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991); Monde v. Roadway Express, Inc., ARB No. 02-071, ALJ Nos. 2001-STA-022, -029, slip op. at 2 (ARB Oct. 31, 2003).
12 See 49 U.S.C.A. § 31105 (a).
13 Ridgley v. C. J. Dannemiller, ARB No. 05-063, ALJ No. 2004-STA-053, slip op. at 5 (ARB May 24, 2007).
14 49 C.F.R. § 392.3 ("No driver shall operate a commercial motor vehicle . . . while the driver’s ability or alertness is so impaired . . . through fatigue, illness, or any other cause . . . .").
15 Recommended Decision and Order (R. D. & O.) at 6-8.
16 Tr. 18-19, 57.
17 See 49 U.S.C.A § 31105(b)(3)(A)(ii).
18 Dale v. Step 1 Stairworks, Inc., ARB No. 04-003, ALJ No. 2002-STA-030, slip op. at 4-5 (ARB Mar. 31, 2005).
19 49 U.S.C.A. § 31105 (b)(3)(A)(iii).
20 See Dale, slip op. at 6; Michaud v. BSP Transp., Inc., ARB No. 97-113, ALJ No. 1995-STA-029, slip op. at 5-6 n.3 (ARB Oct. 9, 1997).
21 Dale, slip op. at 7.
22 Brief at 5-7.
23 Tr. 24-26
24 Tr. 77 (ALJ: "Okay. Mr. Bottjer, do you have anything to say about damages?" MR. BOTTJER: "It seems like a lot. I have no comment on the damages, Your Honor.")
25 Brief at 8.
26 Griffith v. Wackenhut Corp., ARB No. 98-067, ALJ No. 1997-ERA-052, slip op. at 10 n.7 (ARB Feb. 29, 2000), quoting Dozier v. Ford Motor Co., 707 F.2d 1189, 1194 (D.C. Cir. 1983).
27 See Young v. Schlumberger Oil Field Servs., ARB No. 00-075, ALJ No. 2000-STA-028, slip op. at 9 (ARB Feb. 28, 2003) citing Jessica Case, Note: Pro Se Litigants at the Summary Judgment Stage: Is Ignorance of the Law an Excuse?, 90 KY. L.J. 701 (2002). To support its due process argument, Combined moves us to reopen the record and admit two affidavits and three pages of additional exhibits it attached to its brief. In response Hobson submitted a Motion to Strike the affidavits and exhibits. When considering a motion to reopen the record, the Board relies upon the same standard found in 29 C.F.R. Part 18, the Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges. Williams v. Lockheed Martin Energy Sys., Inc., ARB No. 98-059, ALJ No. 1995-CAA-010, slip op. at 6-7 (ARB Jan. 31, 2001). The applicable Rule of Practice states: "Once the record is closed, no additional evidence shall be accepted into the record except upon a showing that new and material evidence has become available which was not readily available prior to the closing of the record." 29 C.F.R. § 18.54(c)(2007). Since Combined has not demonstrated that the additional evidence was unavailable during the hearing, we deny the motion. In doing so, Hobson’s Motion to Strike becomes moot.
28 Brief at 12.
29 R. D. & O. at 11.
30 Black’s Law Dictionary 416 (8th ed. 2004).
31 Smith v. Esicorp, ARB No. 97-065 and 97-112, ALJ No. 1993-ERA-016, slip op. at 5 n.4 (ARB Aug. 27, 1998).
32 Johnson v. Roadway Express, Inc., ARB No. 99-111, ALJ No. 1999-STA-005, slip op. at 14 (ARB Mar. 29, 2000).
33 Hobby v. Georgia Power Co., ARB No. 98-166, ALJ No. 1990-ERA-030, slip op. at 31 (ARB Feb. 9, 2001).
34 See Michaud v. BSP Transp., Inc., ARB No. 97-113, ALJ No. 1995-STA-029, slip op. at 9 (ARB Oct. 9, 1997) and cases cited therein.
35 Tr. 24-25 ("When I was terminated, I was terminated at a time when I was really stressed out and my nerves were messed up. My anxiety was real high. After I was terminated, the way I was, it just made it worse.").
36 See, e.g., Jackson v. Butler & Co., ARB Nos. 03-116 and 03-144, ALJ No. 2003-STA-026, slip op. at 9 (ARB Aug. 31, 2004); Roberts v. Marshall Durbin Co., ARB Nos. 03-071 and 03-095, ALJ No. 2002-STA-035, slip op. at 17 (ARB Aug. 6, 2004).
37 49 U.S.C.A. § 31105(b)(3)(B).
38 See Jackson, slip op. at 10 and cases cited therein.
39 See 26 U.S.C.A. § 6621(a)(2), Doyle v. Hydro Nuclear Servs., ARB Nos. 99-041, 99-042, 00-012, ALJ No. 1989-ERA-022, slip op. at 18-21 (ARB May 17, 2000) (outlining the procedures to be followed in computing the interest due on back pay awards).