                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                      June 12, 2006
                           FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                       Clerk of Court



    COPART, IN C.,

             Petitioner,

    v.                                                 No. 05-9577
                                                 (Nos. 04-027 and 04-138)
    AD M INISTRATIVE REVIEW                        (Petition for Review)
    BO AR D, UN ITED STATES
    DEPARTM ENT OF LABOR,

             Respondent,

    C HA RLES L. D A LTO N ,

             Intervenor.




                               OR D ER AND JUDGM ENT *


Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.




*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      Petitioner Copart, Inc., processes and sells salvage vehicles. Intervenor

Charles Dalton, a Copart driver, w as fired after refusing to drive his truck.

M r. Dalton filed a complaint with the Department of Labor asserting that his truck

was unsafe and that his firing violated a provision of the Surface Transportation

Assistance Act of 1982 (STAA) prohibiting the termination of an employee for

refusing to operate a vehicle when he or she “has a reasonable apprehension of

serious injury to the employee or the public because of the vehicle’s unsafe

condition.” 49 U.S.C. § 31105(a)(1)(B)(ii). Following a ruling by an

administrative law judge (ALJ) reinstating M r. Dalton with back pay, the United

States Department of Labor Administrative Review Board (ARB) reversed and

dismissed M r. Dalton’s complaint. This court, in turn, reversed the A RB’s

decision, see Dalton v. United States Dep’t of Labor, 58 F. App’x 442 (10th Cir.

2003), and the ALJ’s original ruling was subsequently reinstated.

      In the instant petition for review , Copart appeals the ARB’s refusal to

reopen the administrative record following remand by this court. Copart had

moved to reopen the record so that it could present evidence to show that

M r. Dalton would present a threat to its employees if reinstated. Copart argues

that the ARB’s refusal to reopen was arbitrary, capricious, or an abuse of

discretion. Because we believe it was not, we exercise our jurisdiction under

49 U.S.C. § 31105(c) and deny the relief requested in Copart’s petition.




                                          -2-
                                  BACKGROUND

      Following the A LJ’s original order of reinstatement and back pay, Copart

appealed and moved the ARB for emergency relief arguing that M r. Dalton was a

threat to its employees. The ARB’s decision (1) found the order was not

supported by substantial evidence, (2) dismissed M r. Dalton’s complaint, and

(3) dismissed Copart’s emergency motion as moot. This court reversed the

ARB’s decision and remanded to the ARB which remanded to the ALJ.

      Both parties then filed motions with the ALJ seeking to reopen the record.

In support of its motion Copart again argued that M r. Dalton would be a threat to

its employees if reinstated. Copart attached to its motion copies of petitions for

protective orders alleging that M r. Dalton had threatened and assaulted his

ex-wife and had threatened one of Copart’s managers. Copart also attached

copies of allegedly threatening letters M r. Dalton had sent Copart’s CEO. The

ALJ denied both parties’ motions to reopen, holding that Copart’s evidence was

not sufficiently probative to justify reopening. The ALJ also recommended that

the ARB adopt his findings and reinstate M r. D alton with back pay.

      On appeal, the ARB held that the ALJ had not abused his discretion in

refusing to reopen the record because “he fully and fairly considered both the

arguments presented and the evidence the parties sought to introduce.” The ARB

noted that under 29 C.F.R. § 18.54(c), “‘[o]nce the record is closed, no additional

evidence shall be accepted into the record except upon a showing that new and

                                         -3-
material evidence has become available w hich was not readily available prior to

the closing of the record.’” 1 Supp. App. at 110 (quoting 29 C.F.R. § 18.54(c)).

The ARB held (1) that the “[e]vidence about [M r.] Dalton’s violent nature and his

antipathy toward Copart employees that the ex parte protective orders purportedly

contain was . . . available earlier,” and (2) that “Dalton’s letters to [Copart’s

CEO] are not material to whether Dalton should be reinstated.” Id. at 111.

                                     ANALYSIS

      Copart argues that the ARB’s refusal to reopen was arbitrary and capricious

or an abuse of discretion because the ARB should have considered the proposed

new evidence and determined (1) whether reinstatement would endanger other

employees, (2) whether it was impossible for Copart and Dalton to having a

productive and amicable working relationship, and (3) whether Copart would have

terminated M r. Dalton for threatening one of its managers. Our review of the

ARB’s final order is under the Administrative Procedure Act (APA), 5 U.S.C.

§ 701-706. Under the APA , we must “hold unlawful and set aside agency action,

findings, and conclusions” found to be, among other possible infirmities,

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law .” 5 U.S.C. § 706(2)(A ); see BSP Trans, Inc. v. United States Dep’t of Labor,

160 F.3d 38, 46 (1st Cir. 1998) (applying § 706(2) in the context of the STAA).

1
      Under 29 C.F.R. § 18.54(a), “[w]hen there is a hearing, the record shall be
closed at the conclusion of the hearing unless the administrative law judge directs
otherwise.”

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“W hen we review an agency’s decision under the arbitrary, capricious or abuse of

discretion standard, our review is narrow and deferential; we must uphold the

agency’s action if it has articulated a rational basis for the decision and has

considered relevant factors.” Slingluff v. Occupational Safety & Health Review

Comm’n, 425 F.3d 861, 866 (10th Cir. 2005) (internal quotation omitted). 2 Here,

we find the ARB’s determination that the evidence in question was either not new

or not material to be a rational basis for refusing to reopen the record.

      W hile our research has revealed no case law defining “new and material

evidence” that is “not readily available prior to the closing of the record,” in the

context of the STAA, an analogy to our case law interpreting the relief from

judgment granted under Fed. R. Civ. P. 60(b)(2) for “newly discovered evidence

which by due diligence could not have been discovered in time to move for a new

trial” is helpful. In that context we have held that:

      A party seeking a new trial on newly discovered evidence must show
      “(1) the evidence was newly discovered since the trial; (2) [the
      moving party] was diligent in discovering the new evidence; (3) the
      newly discovered evidence could not be merely cumulative or
      impeaching; (4) the newly discovered evidence [was] material; and

2
       The regulations implementing Section 405 of the STAA are found at
29 C.F.R. §§ 1978.100 through 1978.115. Under 29 C.F.R. § 1978.109(c)(3), the
ARB must consider “conclusive” all factual findings of the A LJ that are
“supported by substantial evidence on the record considered as a whole.” Further,
29 C.F.R. § 1978.100(b) states that the “rules set forth at 29 C.F.R. Part 18,”
which are the rules promulgated under the APA, also apply. In turn, 29 C.F.R.
§ 18.1 states that “[t]he Rules of Civil Procedure for the District Courts of the
United States shall be applied in any situation not provided for or controlled by
these rules, or by any statute, executive order or regulation.”

                                          -5-
      (5) that a new trial, with the newly discovered evidence[, will]
      probably produce a different result.”

Joseph v. Terminix Int’l Co., 17 F.3d 1282, 1285 (10th Cir. 1994) (quoting

Graham v. Wyeth Labs., 906 F.2d 1399, 1416 (10th Cir. 1990)) (alterations in

original).

      In the administrative context, the Federal Circuit has had the opportunity,

in Wright v. USPS, 183 F.3d 1328, 1332 (Fed. Cir. 1999), to interpret 5 C.F.R.

§ 1201.115(d), a regulation that provides that a petition for review to the M erit

Systems Protection Board may be granted on the grounds that “new and material

evidence is available that, despite due diligence, was not available when the

record closed.” The Federal Circuit held that the evidence in question must be

“of sufficient weight to warrant an outcome different from that of the initial

decision” in order to be considered “material.” Wright, 183 F.3d at 1332.

      Similarly, in NLRB v. Albion Corp., this court interpreted 29 U.S.C.

§ 160(e), which provides that when a petition for enforcement of a decision by the

NLRB is before the circuit court:

      [i]f either party shall apply to the court for leave to adduce additional
      evidence and shall show to the satisfaction of the court that such
      additional evidence is material and that there were reasonable
      grounds for the failure to adduce such evidence in the hearing before
      the Board . . . the court may order such additional evidence to be
      taken before the Board . . . and to be made a part of the record.

593 F.2d 936, 941 (10th Cir. 1979). In that case, although we determined that

remand w as required, we “attach[ed] weight to the Board’s prior determination of

                                          -6-
non-materiality,” and noted that “[w]e w ould not remand to the Board if there

were but a ‘remote possibility’ that the outcome w ould be affected thereby.” Id.

(quoting NLRB v. Process and Pollution Control Co., 588 F.2d 786, 790

(10th Cir. 1978)). Likewise, in Process and Pollution Control Co., we held that:

      [w]e should not remand if there is but a remote possibility that the
      outcome w ould be affected by admitting the evidence, or if the
      evidence is merely cumulative. However, remand is proper where it
      would not be a useless gesture, but might produce a different result
      due to consideration of material evidence previously excluded.

588 F.2d at 790-91 (quotations and citations omitted).

      Here, most of the alleged threats to Copart’s manager were made before the

initial hearing. The first petition filed by M r. Dalton’s ex-wife was also filed

before the initial hearing. In denying Copart’s motion to reopen, the ALJ noted

that protective orders are issued in response to ex parte allegations. The ALJ

further noted that he had previously determined that M r. Gille had “significant

credibility problems,” Supp. App. at 103, and that it was pure speculation that ex

parte allegations made by M r. Dalton’s ex-wife showed that M r. Dalton had

continued hostility toward Copart. In its final decision, the ARB found that the

protective orders and the allegations therein could not serve as grounds for

reopening because the “[e]vidence about [M r.] Dalton’s violent nature and his




                                          -7-
antipathy toward Copart employees that the ex parte protective orders purportedly

contain was . . . available [prior to closing of the record].” 3 Supp. App. at 111.

      Copart argues that the ARB erred in determining that the evidence

regarding the protective orders was not new evidence.

      [E]ven if Copart had been aware of Dalton’s history of violence,
      Dalton’s conduct, both before and after the hearing must be viewed
      as a whole. Though Dalton’s violent conduct may have began before
      the hearing, it continued and accumulated to such a level following
      the hearing that only then was the true extent of his instability and
      propensity for violence evident.

Pet’r Reply Br. at 1-2. W e disagree. Of the allegations contained in the petition

for protective order filed by the Copart manager, the only one that clearly

occurred after the initial hearing was an allegation that M r. Dalton called the

manager’s home and told his wife that he planned on making her husband’s life

miserable and that he then contacted the manager at work. Further, although

three of the four petitions for protective order filed by M r. Dalton’s ex-wife w ere

filed after the initial hearing, ex parte allegations of threats and assaults against a

party unrelated to Copart are of such limited relevance that we cannot say that the

ARB erred in finding the final three petitions merely cumulative of the first.

      As to whether consideration of the allegedly threatening letters sent to

Copart’s CEO would have produced a difference result, we note the ALJ found

3
       Although some of M r. Dalton’s alleged actions in regards to his ex-wife
and M r. Gille occurred after the initial hearing, the ARB evidently determining
that this evidence of was merely cumulative of the evidence regarding actions that
occurred prior to the hearing.

                                          -8-
that they showed at best “an individual who is frustrated after being fired” and

that “they certainly [did] not rise to the level of threats of violence.” Supp. App.

at 103. The ARB agreed, finding that they were not material to whether Dalton

should be reinstated. W e disagree with Copart’s assertion that “[a] reasonable

reader of . . . the letters . . . would conclude that the writer was hostile toward the

recipient and perhaps unstable” and would “expect the recipients of such letters to

feel disturbed and event threatened by the sentiment expressed in them.” Pet’r

Opening Br. at 12-13. A review of the letters shows that M r. Dalton felt that

Copart’s counsel orchestrated the manager’s petition for protective order in order

to avoid compliance with the reinstatement order and that the letters specifically

state that M r. Dalton did not intend for them to be threatening. Further, while

M r. Dalton’s letters include copies of biblical quotations asserting that God

protects the righteous and punishes the wicked, the letters themselves contain no

threats of physical violence, but simply assert that M r. Dalton intended to

continue to pursue his legal rights and to expose Copart’s unjust treatment of him

in the press if necessary. W e do not read the letters as threatening physical

violence and cannot say the ARB erred in finding them to not be material.




                                           -9-
      The relief requested in Copart’s petition for review is DENIED. Intervenor

C harles Dalton’s M otion for Sur-Reply is DENIED.


                                                  Entered for the Court


                                                  David M . Ebel
                                                  Circuit Judge




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