On July 12, 2016, OHA denied the Appeal of a dismissal of a Complaint filed by Charles K. MacLeod MacLeod against Fluor-BWXT Portsmouth LLC (FBP) under the Department of Energy’s (DOE) Contractor Employee Protection Program, 10 C.F.R. Part 708. In his Complaint, Mr. MacLeod alleged that FBP had terminated him from his position in the Labor Relations Office in retaliation for his opposition to FBP’s use of a particular law firm to investigate allegations of irregularities in that office. Specifically, Mr. MacLeod asserted that the law firm had a conflict of interest, due to a “direct financial interest” in the case, because he (MacLeod) had been hired to “largely replace” the law firm’s services at FBP. He alleged that utilizing the firm constituted a breach of the FBP policy on conflicts of interest/ethics. The Portsmouth/Paducah Project Office (PPPO) Employee Concerns Program Manager dismissed the allegation on the basis that the allegation did not meet the criteria of a protected disclosure, as defined by 10 C.F.R. § 708.5. On appeal, OHA agreed with the PPPO. Mr. MacLeod also noted, in his appeal, that the PPPO had failed to explicitly address his allegation of retaliation for “participation in the Fluor BWXT Employee Concerns Program.” In its decision, OHA stated that the PPPO decision made clear that the Complaint was dismissed in its entirety, and further, that “participation in the DOE Employee Concerns Program, without more, is not participation in a Part 708 proceeding, and accordingly does not give rise to protection under 10 C.F.R. Part 708.“ Consequently, OHA denied Mr. MacLeod’s Appeal. OHA Case No. WBU-16-0005
Following the issuance of the July 12, 2016 decision denying Mr. MacLeod’s appeal, it came to the attention of OHA that the Portsmouth/Paducah Project Office (PPPO) Employee Concerns Manager had not provided Mr. MacLeod with two responses to his complaint submitted by FBP. Based on this information, OHA initiated a sua sponte reconsideration of this matter. In its decision on the reconsideration, issued August 3, 2016, OHA determined that, while the regulations do not explicitly require that the responses be provided to the individual, the Federal Rules of Civil Procedure require that all such documents be provided to every party to the action. Using the Federal Rules as guidance, and based on the interests of equity, fairness and due process, OHA vacated its decision of July 12, 2016, and remanded the matter back to the PPPO for further processing, including providing Mr. MacLeod with the documents he had not previously received, and allowing him an opportunity to respond before issuing a new decision. WBU-16-0005.