Investigation, Hearing, and Decision Process

10 C.F.R. Part ..., Subpart C
in effectEffective: 2024-07-01

10 C.F.R. § 708.21 Referral to the Office of Hearings and Appeals.

(a) If a complaint is not dismissed for lack of jurisdiction or other good cause, the Head of Field Element or EC Director (as applicable) will forward the complaint to the OHA Director by the later of: (1) The 25th day after receipt of the employer's response, or (2) The 5th day after receipt of an order to continue processing the complaint following an appeal of dismissal. (b) 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. (c) The OHA Director and an Administrative Judge appointed to preside over any aspect of a part 708 proceeding are prohibited, beginning with the complaint's referral to the OHA and until a final agency decision is issued, from initiating or otherwise engaging in ex parte discussions with any party on the merits of the complaint. (d) In all proceedings under this subpart: (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 on their behalf, including requesting the issuance of subpoenas, if necessary; (2) Formal rules of evidence do not apply, but the OHA may use the Federal Rules of Evidence as a guide.

10 C.F.R. § 708.22 Investigation of complaints.

(a) The OHA Director will appoint a person to conduct an investigation. The investigator may not participate or advise in any proceedings in the case subsequent to the investigation's completion. (b) 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 individuals who may have relevant information; take sworn statements; and require the production of any documents or other evidence. (c) All parties must cooperate fully with the investigator by making all pertinent evidence available. The contractor must make employees available upon request. (d) A person being interviewed in an investigation has the right to be represented by a person of his choosing. (e) Parties to the complaint are not entitled to be present at interviews conducted by an investigator. (f) If a person other than the complainant requests that his 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. (g) At any point during the investigation, the investigator may request that the OHA Director appoint an Administrative Judge to whom the complaint will be referred for a decision on whether dismissal is appropriate. The investigator will serve the parties with notice of the referral. The investigator will submit a written statement to the Administrative Judge outlining the reasons he believes dismissal may be appropriate and any facts supporting that belief. The Administrative Judge will then decide whether to dismiss the complaint. In making such decision, the Administrative Judge will have access to the entire investigative file. The Administrative Judge's decision, regardless of outcome, will be served on all the parties. A complaint may be dismissed prior to the completion of the investigation for: (1) Any reason listed in § 708.18(c), or (2) Lack of merit, provided the facts obtained by the investigator indicate there is no genuine dispute of material fact. (h) If the Administrative Judge decides to dismiss the complaint, he will issue an initial agency decision that includes the factual and legal bases for the dismissal. The investigator's written statement will be attached to the Administrative Judge's initial agency decision and served on all the parties. No report of investigation will issue for a complaint dismissed by the Administrative Judge following a referral for dismissal by the investigator. (i) If the Administrative Judge decides not to dismiss the complaint, he will issue a written statement to that effect which will include the factual and legal basis for his decision. The investigation will then continue. The OHA Director may, at his discretion, appoint a new investigator. (j) Dismissals under paragraph (h) of this section may be appealed in accordance with the procedures set forth in §§ 708.32, 708.33, 708.34, and 708.35. Decisions not to dismiss under paragraph (i) of this section may not be appealed.

10 C.F.R. § 708.23 Time to issue a report of investigation.

(a) If the complaint is not dismissed prior to the completion of the investigation, 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. If a case is referred for dismissal by an investigator, the time to issue the report of investigation stops running on the day of referral and, if the Administrative Judge decides against dismissal, begins to run again on the day after the Administrative Judge's decision issues. (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.

10 C.F.R. § 708.24 Hearings not required.

(a) A complainant 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 Administrative Judge will issue an initial agency decision pursuant to § 708.31 of this subpart.

10 C.F.R. § 708.25 Appointment of Administrative Judge.

The OHA Director will appoint an Administrative Judge from the Office of Hearings and Appeals to conduct a hearing.

10 C.F.R. § 708.26 Time and location of hearings.

(a) The Administrative Judge will schedule a hearing to be held by the 90th day after issuance of the report of investigation. Any extension of the hearing date must be approved by the OHA Director. (b) The Administrative Judge will schedule the hearing for a location near the site where the alleged retaliation occurred or the complainant's place of employment, or at another location that is appropriate considering the circumstances of a particular case. Hearings may be conducted by video teleconference or other remote means, at the Administrative Judge's discretion.

10 C.F.R. § 708.27 The Administrative Judge may not require that the parties participate in alternative dispute resolution.

The Administrative Judge may recommend, but may not require, that the parties attempt to resolve the complaint through alternative dispute resolution. Within 5 days of appointment, the Administrative Judge will make the contact information for the DOE's Alternative Dispute Resolution Office available to the parties.

10 C.F.R. § 708.28 Hearing procedures.

(a) In all hearings under this part: (1) Testimony of witnesses is given under oath or affirmation, and witnesses must be advised of the applicability of 18 U.S.C. 1001 and 18 U.S.C. 1621, dealing with the criminal penalties associated with false statements and perjury; (2) Witnesses are subject to cross-examination; and (3) A court reporter will make a transcript of the hearing. (b) The Administrative Judge has all powers necessary to regulate the conduct of proceedings, including the following. (1) The Administrative Judge 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 Administrative Judge 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 Administrative Judge 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 Administrative Judge 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 Administrative Judge may, at the request of a party or on his own initiative, dismiss a claim, defense, or party. He may also make adverse findings upon the failure of a party or the party's representative to comply with a lawful order of the Administrative Judge, or, without good cause, to attend a hearing. If the Administrative Judge's rulings result in termination of the proceeding prior to the completion of the hearing, the Administrative Judge will issue an initial agency decision pursuant to § 708.31 of this subpart. (6) The Administrative Judge, 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 Administrative Judge. (7) The parties are entitled to make closing arguments, but post-hearing submissions are only permitted by direction of the Administrative Judge. (8) Parties allowed to file written submissions must serve copies upon the other parties within the time prescribed by the Administrative Judge.

10 C.F.R. § 708.29 Burdens of proof.

The complainant has the burden of establishing by a preponderance of the evidence that he 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 complainant by the contractor. Once the complainant 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 complainant's disclosure, participation, or refusal.

10 C.F.R. § 708.30 Timing for issuing an initial agency decision.

The Administrative Judge will issue an initial agency decision on the complaint by the 60th day after the later of: (a) The date the Administrative Judge approves the parties' agreement not to hold a hearing; (b) The date the Administrative Judge receives the transcript of the hearing; or (c) The date the Administrative Judge receives post-hearing submissions permitted under § 708.28(b)(7) of this subpart.

10 C.F.R. § 708.31 Procedure for issuing an initial agency decision.

(a) The Administrative Judge will serve the initial agency decision on all parties. (b) An initial agency decision issued by the Administrative Judge 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 Administrative Judge may rely upon, but is not bound by, the report of investigation. (c) If the Administrative Judge 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. If the Administrative Judge does not determine that an act of retaliation has occurred, the initial agency decision will state that the complaint is denied.

10 C.F.R. § 708.32 Appealing an initial agency decision.

(a) By the 15th day after receiving an initial agency decision from the Administrative Judge, 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 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.

10 C.F.R. § 708.33 Procedure for appeals.

(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) Will possess all powers necessary to adjudicate the appeal. (2) Will review findings of fact for clear error and conclusions of law de novo; and (3) Will close the record on appeal after receiving the last submission permitted under this section.

10 C.F.R. § 708.34 Procedure for issuing an appeal decision.

(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/or 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 does not determine that the employer has committed an act of retaliation, the appeal decision will deny the complaint. (4) If the OHA Director determines that the complaint was properly dismissed, the appeal decision will deny the appeal. (5) If the OHA Director determines that a complaint should not have been dismissed, the appeal decision will vacate the initial agency decision and order further processing of 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 the complainant was employed when the alleged retaliation occurred. (d) The appeal decision issued by the OHA Director—other than an appeal decision ordering further processing of a complaint—is the final agency decision unless a party files a petition for Secretarial review by the 30th day after receiving the appeal decision. A decision by the OHA Director to reverse a dismissal may not be the subject of a petition for Secretarial review.

10 C.F.R. § 708.35 Review by the Secretary of Energy of an 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) The Secretary (or his designee) 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. In the event the Secretary determines to reverse an appeal decision dismissing the complaint, the Secretary may, as appropriate, direct the OHA Director to issue a revised decision ordering further processing of the complaint. If no further processing is ordered, the Secretary's decision is the final agency action on the complaint.

10 C.F.R. § 708.36 Remedies.

(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 the complainant's 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 the complainant with relief. (b) Interim relief. If an initial agency decision contains a determination that an act of retaliation occurred, the decision may order the employer to provide the complainant 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.

10 C.F.R. § 708.37 Reimbursement of costs and expenses.

If a complaint is denied by a final agency decision, the complainant will not be reimbursed for the costs and expenses incurred in pursuing the complaint.

10 C.F.R. § 708.38 Implementation of final agency decision.

(a) The Head of Field Element having jurisdiction over the contract under which the complainant was 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) An employer'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.

10 C.F.R. § 708.39 The Contract Disputes Act.

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 41 U.S.C. 606).

10 C.F.R. § 708.40 Notice of program requirements.

Employers 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, address, telephone number, and website or email address of the DOE office where employees can file complaints under this part.

10 C.F.R. § 708.41 Referral to another agency.

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.

10 C.F.R. § 708.42 Extension of deadlines.

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). Failure by the DOE to comply with timing requirements does not create a substantive right for any party to overturn a DOE decision on a complaint.

10 C.F.R. § 708.43 Affirmative duty not to retaliate.

DOE contractors will 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) through (c).

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