10 C.F.R. Subpart C—Investigation, Hearing and Decision Process
Title 10 - Energy
(a) If the attempt at informal resolution is not successful, the Head of Field Element or EC Director (as applicable) will notify you in writing that you have the following options: (1) Request that your complaint be referred to the Office of Hearings and Appeals for a hearing without an investigation; or (2) Request that your complaint be referred to the Office of Hearings and Appeals for an investigation followed by a hearing. (b) You must notify the Head of Field Element or EC Director (as applicable), in writing, by the 20th day after receiving notice of your options, whether you request referral of your complaint to the Office of Hearings and Appeals for a hearing without an investigation, or an investigation followed by a hearing. (c) If the Head of Field Element or EC Director does not receive your response to the notice of options by the 20th day after your receipt of that notice, DOE will consider your complaint withdrawn. (d) If you timely request referral to the Office of Hearings and Appeals, the Head of Field Element or EC Director (as applicable) will forward your complaint to the OHA Director by the 5th day after receipt of your request. (e) The Head of the Field Element or EC Director (as applicable) will notify all parties that the complaint has been referred to the Office of Hearings and Appeals, and state whether you have requested a hearing without an investigation or requested an investigation followed by a hearing. (a) If you request a hearing without an investigation, the OHA Director will not initiate an investigation even if another party requests one. (b) If you request an investigation followed by a hearing, the OHA Director will appoint a person from the Office of Hearings and Appeals to conduct the investigation. The investigator may not participate or advise in the initial or final agency decision on your complaint. (c) The investigator will determine the appropriate scope of investigation based on the circumstances of the complaint. The investigator may enter and inspect places and records; make copies of records; interview persons alleged to have been involved in retaliation and other employees of the charged contractor who may have relevant information; take sworn statements; and require the production of any documents or other evidence. (d) A contractor must cooperate fully with the investigator by making employees and all pertinent evidence available upon request. (e) A person being interviewed in an investigation has the right to be represented by a person of his or her choosing. (f) Parties to the complaint are not entitled to be present at interviews conducted by an investigator. (g) If a person other than the complainant requests that his or her identity be kept confidential, the investigator may grant confidentiality, but must advise such person that confidentiality means that the Office of Hearings and Appeals will not identify the person as a source of information to anyone outside the Office of Hearings and Appeals, except as required by statute or other law, or as determined by the OHA Director to be unavoidable. (a) The investigator will complete the investigation and issue a report of investigation by the 60th day after the complaint is received by the Office of Hearings and Appeals, unless the OHA Director, for good cause, extends the investigation for no more than 30 days. (b) The investigator will provide copies of the report of investigation to the parties. The investigation will not be reopened after the report of investigation is issued. (c) If the parties informally resolve the complaint (e.g., through mediation) after an investigation is started, you must notify the OHA Director in writing of your decision to withdraw the complaint. (a) No. An employee may withdraw a hearing request after the report of investigation is issued. However, the hearing may be canceled only if all parties agree that they do not want a hearing. (b) If the hearing is canceled, the Hearing Officer will issue an initial agency decision pursuant to §708.31 of this subpart. (a) The OHA Director will appoint a Hearing Officer from the Office of Hearings and Appeals to conduct a hearing. (b) The Hearing Officer may not be subject to the supervision or direction of the investigator. (a) The Hearing Officer will schedule a hearing to be held by the 90th day after receipt of the complaint, or issuance of the report of investigation, whichever is later. Any extension of the hearing date must be approved by the OHA Director. (b) The Hearing Officer will schedule the hearing for a location near the site where the alleged retaliation occurred or your place of employment, or at another location that is appropriate considering the circumstances of a particular case. The Hearing Officer may recommend, but may not require, that the parties attempt to resolve the complaint through mediation or other informal means at any time before issuance of an initial agency decision on the complaint. (a) In all hearings under this part: (1) The parties have the right to be represented by a person of their choosing or to proceed without representation. The parties are responsible for producing witnesses in their behalf, including requesting the issuance of subpoenas, if necessary; (2) Testimony of witnesses is given under oath or affirmation, and witnesses must be advised of the applicability of 18 U.S.C. 1001 and 1621, dealing with the criminal penalties associated with false statements and perjury; (3) Witnesses are subject to cross-examination; (4) Formal rules of evidence do not apply, but OHA may use the Federal Rules of Evidence as a guide; and (5) A court reporter will make a transcript of the hearing. (b) The Hearing Officer has all powers necessary to regulate the conduct of proceedings: (1) The Hearing Officer may order discovery at the request of a party, based on a showing that the requested discovery is designed to produce evidence regarding a matter, not privileged, that is relevant to the subject matter of the complaint; (2) The Hearing Officer may permit parties to obtain discovery by any appropriate method, including deposition upon oral examination or written questions; written interrogatories; production of documents or things; permission to enter upon land or other property for inspection and other purposes; and requests for admission; (3) The Hearing Officer may issue subpoenas for the appearance of witnesses on behalf of either party, or for the production of specific documents or other physical evidence; (4) The Hearing Officer may rule on objections to the presentation of evidence; exclude evidence that is immaterial, irrelevant, or unduly repetitious; require the advance submission of documents offered as evidence; dispose of procedural requests; grant extensions of time; determine the format of the hearing; direct that written motions, documents, or briefs be filed with respect to issues raised during the course of the hearing; ask questions of witnesses; direct that documentary evidence be served upon other parties (under protective order if such evidence is deemed confidential); and otherwise regulate the conduct of the hearing; (5) The Hearing Officer may, at the request of a party or on his or her own initiative, dismiss a claim, defense, or party and make adverse findings upon the failure of a party or the party's representative to comply with a lawful order of the Hearing Officer, or, without good cause, to attend a hearing; (6) The Hearing Officer, upon request of a party, may allow the parties a reasonable time to file pre-hearing briefs or written statements with respect to material issues of fact or law. Any pre-hearing submission must be limited to the issues specified and filed within the time prescribed by the Hearing Officer. (7) The parties are entitled to make oral closing arguments, but post-hearing submissions are only permitted by direction of the Hearing Officer. (8) Parties allowed to file written submissions must serve copies upon the other parties within the time prescribed by the Hearing Officer. (9) The Hearing Officer is prohibited, beginning with his or her appointment and until a final agency decision is issued, from initiating or otherwise engaging in ex parte (private) discussions with any party on the merits of the complaint. The employee who files a complaint has the burden of establishing by a preponderance of the evidence that he or she made a disclosure, participated in a proceeding, or refused to participate, as described under §708.5, and that such act was a contributing factor in one or more alleged acts of retaliation against the employee by the contractor. Once the employee has met this burden, the burden shifts to the contractor to prove by clear and convincing evidence that it would have taken the same action without the employee's disclosure, participation, or refusal. (a) The Hearing Officer will issue an initial agency decision on your complaint by the 60th day after the later of: (1) The date the Hearing Officer approves the parties' agreement to cancel the hearing; (2) The date the Hearing Officer receives the transcript of the hearing; or (3) The date the Hearing Officer receives post-hearing submissions permitted under §708.28(b)(7) of this subpart. (b) The Hearing Officer will serve the initial agency decision on all parties. (c) An initial agency decision issued by the Hearing Officer will contain appropriate findings, conclusions, an order, and the factual basis for each finding, whether or not a hearing has been held on the complaint. In making such findings, the Hearing Officer may rely upon, but is not bound by, the report of investigation. (d) If the Hearing Officer determines that an act of retaliation has occurred, the initial agency decision will include an order for any form of relief permitted under §708.36. (e) If the Hearing Officer determines that an act of retaliation has not occurred, the initial agency decision will state that the complaint is denied. (a) If no party wants a hearing after the issuance of a report of investigation, the Hearing Officer will issue an initial agency decision by the 60th day after the hearing is canceled pursuant to §708.24. The standards in §708.30, governing the issuance of an initial agency decision, apply whether or not a hearing has been held on the complaint. (b) The Hearing Officer will serve the initial agency decision on all parties. (a) Yes. By the 15th day after receiving an initial agency decision from the Hearing Officer, any party may file a notice of appeal with the OHA Director requesting review of the initial agency decision. (b) A party who appeals an initial agency decision (the appellant) must serve a copy of the notice of appeal on all other parties. (c) A party who receives an initial agency decision by a Hearing Officer has not exhausted its administrative remedies until an appeal has been filed with the OHA Director and a decision granting or denying the appeal has been issued. (a) By the 15th day after filing a notice of appeal under §708.32, the appellant must file a statement identifying the issues that it wishes the OHA Director to review. A copy of the statement must be served on the other parties, who may file a response by the 20th day after receipt of the statement. Any response must also be served on the other parties. (b) In considering the appeal, the OHA Director: (1) May initiate an investigation of any statement contained in the request for review and utilize any relevant facts obtained by such investigation in conducting the review of the initial agency decision; (2) May solicit and accept submissions from any party that are relevant to the review. The OHA Director may establish appropriate times to allow for such submissions; (3) May consider any other source of information that will advance the evaluation, provided that all parties are given an opportunity to respond to all third person submissions; and (4) Will close the record on appeal after receiving the last submission permitted under this section. (a) If there is no appeal of an initial agency decision, and the time for filing an appeal has passed, the initial agency decision becomes the final agency decision. (b) If there is an appeal of an initial agency decision, the OHA Director will issue an appeal decision based on the record of proceedings by the 60th day after the record is closed. (1) An appeal decision issued by the OHA Director will contain appropriate findings, conclusions, an order, and the factual basis for each finding, whether or not a hearing has been held on the complaint. In making such findings, the OHA Director may rely upon, but is not bound by, the report of investigation and the initial agency decision. (2) If the OHA Director determines that an act of retaliation has occurred, the appeal decision will include an order for any form of relief permitted under §708.36. (3) If the OHA Director determines that the contractor charged has not committed an act of retaliation, the appeal decision will deny the complaint. (c) The OHA Director will send an appeal decision to all parties and to the Head of Field Element or EC Director having jurisdiction over the contract under which you were employed when the alleged retaliation occurred. (d) The appeal decision issued by the OHA Director is the final agency decision unless a party files a petition for Secretarial review by the 30th day after receiving the appeal decision. (a) By the 30th day after receiving an appeal decision from the OHA Director, any party may file a petition for Secretarial review with the Office of Hearings and Appeals. (b) By the 15th day after filing a petition for Secretarial review, the petitioner must file a statement identifying the issues that it wishes the Secretary to consider. A copy of the statement must be served on the other parties, who may file a response by the 20th day after receipt of the statement. Any response must also be served on the other parties. (c) All submissions permitted under this section must be filed with the Office of Hearings and Appeals. (d) After a petition for Secretarial review is filed, the Secretary (or his or her delegee) will issue the final agency decision on the complaint. The Secretary will reverse or revise an appeal decision by the OHA Director only under extraordinary circumstances. In the event the Secretary determines that a revision in the appeal decision is appropriate, the Secretary will direct the OHA Director to issue a revised decision which is the final agency action on the complaint. (a) General remedies. If the initial or final agency decision determines that an act of retaliation has occurred, it may order: (1) Reinstatement; (2) Transfer preference; (3) Back pay; (4) Reimbursement of your reasonable costs and expenses, including attorney and expert-witness fees reasonably incurred to prepare for and participate in proceedings leading to the initial or final agency decision; or (5) Such other remedies as are deemed necessary to abate the violation and provide you with relief. (b) Interim relief. If an initial agency decision contains a determination that an act of retaliation occurred, the decision may order the contractor to provide you with appropriate interim relief (including reinstatement) pending the outcome of any request for review of the decision by the OHA Director. Such interim relief will not include payment of any money. No. If your complaint is denied by a final agency decision, you may not be reimbursed for the costs and expenses you incurred in pursuing the complaint. (a) The Head of Field Element having jurisdiction over the contract under which you were employed when the alleged retaliation occurred, or EC Director, will implement a final agency decision by forwarding the decision and order to the contractor, or subcontractor, involved. (b) A contractor's failure or refusal to comply with a final agency decision and order under this regulation may result in a contracting officer's decision to disallow certain costs or terminate the contract for default. In the event of a contracting officer's decision to disallow costs or terminate a contract for default, the contractor may file a claim under the disputes procedures of the contract. No. A final agency decision and order issued pursuant to this regulation is not considered a claim by the government against a contractor or “a decision by the contracting officer” under sections 6 and 7 of the Contract Disputes Act (41 U.S.C. 605 and 606). Yes. Contractors who are covered by this part must inform their employees about these regulations by posting notices in conspicuous places at the work site. These notices must include the name and address of the DOE office where you can file a complaint under this part. [64 FR 37397, July 12, 1999] Notwithstanding the provisions of this part, the Secretary of Energy retains the right to request that a complaint filed under this part be accepted by another Federal agency for investigation and factual determinations. [64 FR 37397, July 12, 1999] Yes. The Secretary of Energy (or the Secretary's designee) may approve the extension of any deadline established by this part, and the OHA Director may approve the extension of any deadline under §708.22 through §708.34 of this subpart (relating to the investigation, hearing, and OHA appeal process). [64 FR 37397, July 12, 1999] Yes. DOE contractors may not retaliate against any employee because the employee (or any person acting at the request of the employee) has taken an action listed in §§708.5(a)–(c). [65 FR 6319, Feb. 9, 2000; 65 FR 9201, Feb. 24, 2000]
Title 10: Energy
PART 708—DOE CONTRACTOR EMPLOYEE PROTECTION PROGRAM
Subpart C—Investigation, Hearing and Decision Process
§ 708.21 What are the employee's options if the complaint cannot be resolved informally?
§ 708.22 What process does the Office of Hearings and Appeals use to conduct an investigation of the complaint?
§ 708.23 How does the Office of Hearings and Appeals issue a report of investigation?
§ 708.24 Will there always be a hearing after a report of investigation is issued?
§ 708.25 Who will conduct the hearing?
§ 708.26 When and where will the hearing be held?
§ 708.27 May the Hearing Officer recommend mediation to the parties?
§ 708.28 What procedures govern a hearing conducted by the Office of Hearings and Appeals?
§ 708.29 What must the parties to a complaint prove?
§ 708.30 What process does the Hearing Officer follow to issue an initial agency decision?
§ 708.31 If no hearing is conducted, what is the process for issuing an initial agency decision?
§ 708.32 Can a dissatisfied party appeal an initial agency decision?
§ 708.33 What is the procedure for an appeal?
§ 708.34 What is the process for issuing an appeal decision?
§ 708.35 How can a party obtain review by the Secretary of Energy of an appeal decision?
§ 708.36 What remedies for retaliation may be ordered in initial and final agency decisions?
§ 708.37 Will an employee whose complaint is denied by a final agency decision be reimbursed for costs and expenses incurred in pursuing the complaint?
§ 708.38 How is a final agency decision implemented?
§ 708.39 Is a decision and order implemented under this regulation considered a claim by the government against a contractor or a decision by the contracting officer under sections 6 and 7 of the Contract Disputes Act?
§ 708.40 Are contractors required to inform their employees about this program?
§ 708.41 Will DOE ever refer a complaint filed under this part to another agency for investigation and a decision?
§ 708.42 May the deadlines established by this part be extended by any DOE official?
§ 708.43 Does this rule impose an affirmative duty on DOE contractors not to retaliate?
