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TBA-0066 - In the Matter of David L. Moses

This Decision considers an Appeal of an Initial Agency Decision (IAD) issued on September 3, 2008, involving a Complaint of Retaliation filed by David L. Moses (also referred to as the employee or the complainant) under the Department of Energy (DOE) Contractor Employee Protection Program, 10 C.F.R. Part 708.1 In his Complaint, Moses alleged that his former employer, UT-Battelle, L.L.C. (UT-Battelle or the contractor), retaliated against him for engaging in activity protected under Part 708. In the IAD, an Office of Hearings and Appeals (OHA) Hearing Officer determined that Moses engaged in activity protected under Part 708, but UT-Battelle established that it would have taken the same adverse personnel action in the absence of the protected activity. Moses appealed that determination. The IAD also made a finding regarding the applicability of the attorney-client privilege with respect to two exhibits submitted at the hearing, finding that certain redacted portions of those exhibits were not shielded by the attorney-client privilege and should be released. UT-Battelle appealed the portion of the IAD ordering the release of the redacted information. As set forth below, we find that the determination in the IAD that UT-Battelle met its burden under Part 708 is correct. In addition, we find that the issue of whether the redacted portions of two exhibits are protected by the attorney-client privilege is moot and, therefore, UT-Battelle shall not be required to release the documents.