                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    July 28, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES DEPARTMENT
    OF LABOR, Secretary of Labor,

                Plaintiff-Appellee,

    v.                                                    No. 10-5148
                                             (D.C. No. 4:07-CV-00077-TCK-FHM)
    COPART, INC.,                                         (N.D. Okla.)

              Defendant-Appellee.
    _______________________

    CHARLES L. DALTON,

                Intervenor-Appellant.


                             ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, EBEL and O’BRIEN, Circuit Judges.



         Intervenor Charles L. Dalton appeals from the district court’s order

granting summary judgment to plaintiff, the Secretary of Labor, and ordering



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
defendant Copart, Inc. to pay Dalton $241,570.32 in back pay and interest, as the

Secretary had requested. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm in part and reverse and remand in part.


                           I. Administrative Proceedings

      Dalton worked as a salvage hauler for Copart at its facility in Tulsa,

Oklahoma, from January 11, 1999, until March 4, 1999, when Copart fired him

for refusing to drive his assigned truck. On March 8, 1999, Dalton filed a

complaint with the Occupational Safety and Health Administration (OSHA),

alleging that he had reasonably refused to drive an unsafe truck and that Copart

had violated the Surface Transportation Assistance Act of 1982 (STAA) when it

fired him for refusing to drive it. See 49 U.S.C. § 31105(a)(1)(B)(ii). OSHA

investigated Dalton’s STAA complaint, but dismissed it for lack of merit.

      Dalton requested a hearing before an administrative law judge (ALJ), which

was held on May 10, 2000. Jt. App. at 12. On November 27, 2000, the ALJ

issued a Recommended Decision and Order (RDO) concluding that Copart had

violated the STAA when it fired Dalton. Id. at 11, 43. The ALJ directed Copart

to reinstate Dalton to his position and to restore his job benefits. Id. at 44. The

ALJ also noted that Dalton was “entitled to a mandatory award of back pay[,]”

and that “[i]nterest is due on back pay awards from the date of discharge until the

date when payment of back pay is made.” Id. at 43 (citing Johnson v. Roadway


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Express, Inc., ARB No. 99-111, 2000 WL 35593006, at *13 (ARB Mar. 29,

2000)). Accordingly, the ALJ directed Copart to pay Dalton back pay “until

[Copart] reinstates [Dalton] or makes him an offer of reinstatement,” and to pay

“[i]nterest on back pay . . . from the date of discharge until the date [Dalton] is

paid[.]” Id. at 44. The ALJ also directed Dalton to file a petition for attorney’s

fees. Id. at 45.

      Copart sought administrative review of the ALJ’s RDO, and, on July 19,

2001, the Administrative Review Board (ARB) issued a Final Decision and Order

(FDO) reversing the ALJ’s decision. Dalton then appealed to this court, and we

reversed the ARB’s FDO and remanded for additional proceedings. See Dalton v.

U.S. Dep’t of Labor, 58 F. App’x 442, 446-50 (10th Cir. 2003).

      On remand, the parties moved the ARB to reopen the record to submit

additional evidence; the motion was remanded to the ALJ along with the

substantive case. Jt. App. at 112b. In relevant part, Copart sought to add

evidence that it no longer employed truck drivers except at its facility in Detroit,

Michigan. See id. at 72 & n.2. The ALJ reminded the parties in his second RDO,

issued on July 1, 2004, that the record was closed on the date of the hearing, id.

at 71, that is, May 10, 2000, id. at 12. The ALJ also noted that Copart still

employed drivers in Detroit, and that Dalton’s rebuttal evidence showed that

Copart owned multiple public auction facilities in several states and operated

more than 650 tow trucks. Id. at 72. The ALJ denied the parties’ request to

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reopen the record and restated its recommendations that Copart should reinstate

Dalton, restore his benefits, and pay him back pay from March 4, 1999, “until the

date of reinstatement, or the date of [Copart’s] offer of reinstatement if [Dalton]

declines reinstatement[,]” with interest. Id.

      Copart offered Dalton a job at its Detroit facility on July 16, 2004, but

informed him that it would “not pay any relocation expenses” and that it would be

ceasing trucking operations at its Detroit facility at the end of that same month, so

he would be “permanently laid-off” after two weeks. See id. at 112p. Dalton

refused the offer, and Copart terminated all of its remaining truck drivers on

July 29 and July 30, 2004.

      Copart also sought administrative review of the ALJ’s second RDO. On

June 30, 2005, the ARB issued an FDO affirming the ALJ’s decision. Id. at 112a,

112h. Copart subsequently paid Dalton’s attorney’s fees as ordered, but did not

pay him any back pay.


                             II. District Court Proceedings

      The Secretary of Labor brought this action under 49 U.S.C. § 31105(e) in

February 2007, seeking civil enforcement of the ARB’s June 30, 2005, FDO.

Dalton was permitted to intervene. The parties all agreed that Copart owed

Dalton back pay, and they disputed only the end date for the back pay award.

See Supp. to Jt. App. at 178 & n.4. The Secretary moved for summary judgment,


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seeking a ruling that Copart owed Dalton $241,570.32 in back pay and interest

“through” May 31, 2009, based on its calculation of back pay until July 31, 2004,

when Copart ceased to employ drivers, and interest until May 31, 2009, the last

day of the month in which the Secretary filed her summary judgment motion.

See Jt. App. at 105, 111, 112r. Copart and Dalton both filed briefs in opposition.

See id. at 116, 123. Dalton disputed that his back pay award should be cut off on

July 31, 2004. Id. at 117. Copart argued that Dalton’s back pay award should

end on July 16, 2004, the date when it offered him a job in Detroit. Id. at 123.

      The district court granted the Secretary’s motion for the exact amount

requested in it, resolving in favor of the Secretary the parties’ dispute concerning

the date on which Dalton’s back pay award ceased to accrue. See Supp. to Jt.

App. at 178 & n.4, 179-81. The court’s decision also effectively ended Dalton’s

interest award on May 31, 2009, however, although the parties never disputed that

interest would accrue until his back pay award was paid. Dalton appeals.


                       III. Issues on Appeal and Discussion

      “We review de novo a grant of summary judgment.” Mata v. Anderson,

635 F.3d 1250, 1252 (10th Cir. 2011). “‘The court shall grant summary judgment

if the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.’” Id. (quoting

Fed. R. Civ. P. 56(a)). We view the record on summary judgment “in the light


                                         -5-
most favorable to the nonmoving party.” Mumby v. Pure Energy Servs. (USA),

Inc., 636 F.3d 1266, 1269 (10th Cir. 2011).

      Dalton argues on appeal that the district court erred by: (1) ending his back

pay award on July 31, 2004, the date on which Copart had ceased to employ

drivers; and (2) ending the interest on his back pay award on May 31, 2009, rather

than continuing interest until the award has been satisfied.


                                 a. Back Pay Award

      Dalton argues that although he prevailed and an award was entered, the

district court erred by expanding the record to add information not before the

ARB. Dalton argues that the court was tasked only with the ministerial

enforcement of the ARB’s June 30, 2005, FDO, and should not have accepted

additional evidence presented by the Secretary, such as the fact that Copart no

longer employed any drivers as of July 31, 2004, the date the court used as the

end date for its back pay award. Dalton argues that Copart ended its employment

of drivers before the ARB entered its FDO, but Copart did not make that fact

known to the ARB. Dalton argues that it was too late for Copart to add facts in

the district court, and argues that the doctrines of collateral estoppel (issue

preclusion), res judicata (claim preclusion), and judicial estoppel precluded the

issue of the correct end date for his back pay award from being relitigated.




                                          -6-
      We conclude that it was proper for the court to consider the date Copart

ceased trucking operations (July 31, 2004) when calculating back pay. “The

purpose of a back pay award is to make the employee whole—i.e., restore the

economic status quo that would have obtained but for the wrongdoing on the part

of the employer[.]” Aguinaga v. United Food & Commercial Workers Int’l

Union, 993 F.2d 1463, 1473 (10th Cir. 1993). It would be nonsensical, as the

district court noted, to place Dalton in a better position than all other drivers

Copart had employed. Cf. Olsen v. Arrington, 621 F.2d 363, 368 (10th Cir. 1980)

(holding that court “cannot” put employee “in a better position than if he had not

been wrongfully separated” under the Back Pay Act). Back pay would not be

appropriate for the time when Dalton could not have been employed with Copart

as a driver, even if Copart had treated him fairly. See Aguinaga, 993 F.2d

at 1473. Although the ARB’s order specified either of two conditions to end the

accrual of back pay, Dalton has failed to cite any authority holding that the

district court was precluded from applying basic back-pay principles to end the

accrual of back pay on another date when the district court found that neither of

the specified conditions could be met.

      Moreover, the date Copart ceased trucking operations occurred after the

ALJ issued its second RDO on July 1, 2004 (and long after the record was

closed), so the ALJ could not have considered that fact when he ruled. As a

result, some of the cases Dalton cites are distinguishable in that they involve facts

                                          -7-
known before a court or adjudicatory body ruled and, therefore, hold that the fact

could not be asserted later when it could have been asserted earlier. Although the

ARB’s ruling in this case was entered after Copart ceased trucking, at that point,

the administrative record was closed. The new evidence of the date of Copart’s

cessation of trucking operations could not have been admitted at the

administrative level because it did not exist at the time of the hearing. Shields v.

James E. Owen Trucking, Inc., ARB No. 08-021, 2009 WL 4324727, at *4-*5

(ARB Nov 30, 2009) (discussing 29 C.F.R. § 18.54(c)). Finally, although Copart

argues that the court should have used July 16, 2004, as its end date because that

is when Copart offered Dalton the two-week position in Detroit, we “‘may not

alter a judgment to benefit a nonappealing party[,]’” and Copart has not filed a

cross-appeal. June v. Union Carbide Corp., 577 F.3d 1234, 1248 n.8 (10th Cir.

2009) (quoting Greenlaw v. United States, 554 U.S. 237, 244 (2008)).


                                     b. Interest

      Dalton’s interest issue is more difficult. He argues that the court erred in

not awarding interest after May 31, 2009. The court awarded the specific amount

the Secretary requested in her motion for summary judgment, so we must decide

whether Dalton is bound by the Secretary’s failure to ask for interest until the

back pay award is paid, or conclude that the district court erred in not awarding

interest for the longer period, although the Secretary did not request it. The


                                          -8-
Secretary argues that the court was correct to limit interest to the period the

Secretary requested in its motion. But the Secretary also argues that the district

court’s “silence on the matter” (i.e., not addressing interest after May 31, 2009),

cannot be read as modifying the ARB’s June 2005 order—and implies that Dalton

should seek the additional interest in another suit. See Sec’y Br. at 28-29. That

we would send Dalton into yet another round of litigation to resolve the interest

issue seems punitive and unnecessary. It is also probable that such an action

would be barred by either collateral estoppel or res judicata. See B. Willis,

C.P.A. Inc. v. BNSF Ry., 531 F.3d 1282, 1301 (10th Cir. 2008).

      We conclude that the district court erred in not awarding interest until the

judgment for back pay has been satisfied. The statute provides that back pay is

paid with interest. 49 U.S.C. § 31105(b)(3)(A)(iii). The ARB has decided that

interest accrues from the date of discharge until the back pay award is paid, and

the ALJ so stated in his RDO. Jt. App. at 43-44 (citing Johnson v. Roadway

Express, Inc., ARB No. 99-111, 2000 WL 35593006, at *13 (ARB Mar. 29,

2000)). The Secretary acknowledges that she did not raise the date through which

interest would run as an issue in her summary judgment motion, Sec’y Br.

at 27-28, and we may review this forfeited issue for plain error. See Richison v.

Ernest Grp., Inc., 634 F.3d 1123, 1127-28 (10th Cir. 2011). We conclude that

“the correct resolution of [Dalton’s interest issue] is beyond a reasonable doubt

and the failure to intervene would result in a miscarriage of justice.” Id. at 1128.

                                          -9-
Copart concedes that it owes Dalton interest until his back pay is paid in

full—and it would have been appropriate for the Secretary to have joined in that

concession as well.

      We AFFIRM the district court back pay calculation, but REVERSE and

REMAND its interest calculation.


                                                    Entered for the Court



                                                    Mary Beck Briscoe
                                                    Chief Judge




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