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
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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.)
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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.