This proceeding arises under the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1982).

that "Complainant was discharged for legimate reasons completely unrelated to his filing of the initial OSHA claim." R.D. and O. at 11.

    Subsequent to transmittal of this case for my review, the parties each filed briefs in support of their respective positions. In addition, Complainant, who appears pro se before me, filed a Motion to Reopen the Record so that twenty-one (21) exhibits not presented at the hearing might be entered in the record before me for review. These exhibits are characterized by Complainant as exhibits which were not presented at the hearing "because, Complainant's attorney chose not to present them, even though Complainant had given them to his attorney for the purpose of using them at the hearing" and exhibits which were "not presented because, Complainant did not have them at the time of the hearing." Complainant's Motion To Reopen the Record at 1. Respondent opposes Complainant's motion arguing, among other things, that "[a]ll of the documents were apparently known to Complainant prior to the May 5 hearing, and be concedes that many of them were actually in his possession at that time. In fact, a number of the documents were produced by Respondent prior to the hearing pursuant to the discovery requests of Complainant's former counsel." Respondent Belcher Oil Company's Brief in Opposition to Complainant's motion to Reopen the Record at 3.

    Complainant's Motion to Reopen the Record is denied. My review of this case must be based on the record made before the ALJ and on the ALJ's decision. See 29 C.F.R. § 1978.109 (c)(1) (1987). Reliance, during my review, on exhibits not already in the record is, therefore, not permitted.

    Nevertheless, and particularly since Complainant appears pro se, I have examined the exhibits he submits to determine whether this case should be remanded to the ALJ for reopening of the record and acceptance of the exhibits, and I have concluded that it should not. It is clear from Complainant's own statements that these exhibits do not constitute "newly discovered evidence" which would warrant a new hearing before the ALJ.

Newly discovered evidence must be evidence in existence of which a party was excusably ignorant, discovered after trial. In addition facts implying reasonable diligence must be provided by the movant.

United States v. 41 Cases More or Less, 420 F.2d 1126, 1132 (5th Cir. 1970). Accord Shook & Fletcher Insulation v. Central Rigging, 684 F.2d 1383, 1385 (11th Cir. 1982). Moreover, Complainant seeks to offer each of these exhibits for the sole purpose of discrediting the testimony of certain witnesses and contradicting the ALJ's conclusion that Respondent did not retaliate against Complainant for filing an OSHA complaint. It has already been held in McDaniel v. Boyd Brothers Transportation, Case No. 86-STA-6, Final Order of Dismissal, issued March 16, 1987, slip op. at 5-6, that evidence offered to contradict or impeach witnesses so as to overcome the ALJ's findings of fact does not afford a basis for a new hearing. Accordingly I have limited my review of this case solely to the record before the ALJ.