Office of Hearings and Appeals (2020 Presidential transition)
| Book 3 - Organization Overview
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| Entire 2020 DOE Transition book As of October 2020 |
The Office of Hearings and Appeals (HG) promotes nuclear security through its role in conducting hearings and issuing decisions under 10 CFR Parts 710 and 712. Part 710 proceedings involve the eligibility of DOE employees (contractor and federal) to hold a DOE access authorization (a security clearance). In these proceedings, HG Administrative Judges conduct a hearing on the record, receive evidence, and issue a decision either granting or denying (in the case of an initial applicant), or restoring or revoking (in the case of an incumbent) the individual’s security clearance. HG performs a similar function under Part 712, the Human Reliability Program, which establishes standards to ensure that individuals with unescorted access to nuclear materials meet the highest standards of reliability and physical and mental suitability.
HG supports Management and Performance in discharging its responsibilities under 10 CFR Part 708, pursuant to which HG investigates complaints, conducts hearings, and considers appeals filed by contractor employees who have allegedly suffered reprisal as a result of making a protected disclosure, such as reporting a matter related to public health and safety (i.e., “whistleblowers”). HG also issues orders, on behalf of the Secretary, on contractor whistleblower investigative findings by the Office of the Inspector General (IG), pursuant to 41 U.S.C. §4712.
In addition, HG’s Alternative Dispute Resolution Office (ADRO) serves as a resource to all DOE components and contractors to explore efficient and cost-effective ways of preventing and resolving disputes, without the formalities and costs of litigation. HG provides mediation services and training and promotes the use of dispute prevention and alternative dispute resolution techniques at all levels of conflict, and throughout the DOE complex.
HG supports a more economically competitive, environmentally responsible, and resilient U.S. energy infrastructure through its role supporting the DOE’s Energy Conservation Program for Consumer Products, codified at 10 CFR Parts 430 and 431. Under this program, DOE has established and continues to establish minimum energy efficiency standards for numerous residential and commercial products. These energy efficiency standards not only save money and provide consumers with the benefits of improved, more efficient technology, but also result in substantial environmental benefits by reducing carbon emissions. HG has been delegated authority to rule upon Applications for Exception (i.e., grant relief) from the product efficiency standards to ensure that manufacturers will not suffer a serious hardship, gross inequity, or unfair distribution of burdens as a result of compliance.
To ensure transparency, HG publishes virtually all of its decisions (other than decisions in classified cases) on the HG website.
Mission Statement
HG’s mission is to conduct fair and efficient hearings; to issue decisions of the Department of Energy with respect to any adjudicative proceedings which the Secretary may delegate; and to support the use of alternative dispute resolution methodologies throughout DOE.
Budget
| Fiscal Year | Budget |
| FY 2019 enacted | $3,739,000 |
| FY 2020 enacted | $4,852,000 |
| FY 2021 requested | $4,262,000 |
Human Resources
FY 2020 authorized full-time equivalents (FTEs): 22
Functions
HG is the quasi-judicial arm of DOE for conducting hearings and issuing initial Departmental decisions with respect to adjudicative proceedings which the Secretary has delegated. The procedures HG uses vary depending upon the type of case. HG’s procedures are flexible and easily adaptable, minimizing “start-up” times and resulting in high- quality work product. HG’s procedural regulations are codified at 10 CFR Part 1003. HG’s areas of jurisdiction include:
Personnel Security, 10 CFR Part 710
Under DOE’s personnel security program, HG conducts administrative hearings and issues decisions concerning individuals’ eligibility to hold a DOE security clearance and to access classified information or special nuclear material.
Human Reliability Program, 10 CFR Part 712
HG conducts hearings and issues recommendations with regard to individuals seeking certification to occupy positions affording unescorted access to certain nuclear materials, nuclear explosive devices, and facilities and programs. The program ensures that these people meet the highest standards of reliability and physical and mental suitability.
DOE Contractor Employee Protection (“Whistleblower”) Program, 10 CFR Part 708
Under this program, HG conducts investigations and hearings, and considers appeals concerning whistleblower claims filed by DOE contractor employees.
Enhancement of Contractor Protection from Reprisal for Disclosure of Certain Information, 41 U.S.C. §4712
HG issues orders, on behalf of the Secretary, on contractor whistleblower investigative findings by the Office of the Inspector General.
Alternative Dispute Resolution Office (ADRO)
HG’s ADRO serves as a resource to all DOE components and contractors to explore efficient and cost-effective means of preventing conflicts and resolving disputes, without the formalities and costs of litigation. ADRO directs the DOE Headquarters Mediation Program.
Freedom of Information Act (FOIA) and Privacy Act Appeals, 10 CFR Parts 1004 and 1008.
HG considers appeals of agency denials of requests for information under the FOIA and Privacy Act, and issues final agency decisions.
Exceptions and Special Redress, 10 CFR Part 430 and 431
HG rules on Applications for Exception filed by firms seeking relief from DOE’s energy efficiency standards for consumer products and considers petitions for special redress filed by parties requesting relief from DOE regulatory requirements in other miscellaneous proceedings.
Hydroelectric Production Incentives Program, §242 of the Energy Policy Act of 2005
To support the expansion of hydropower energy development, DOE’s Office of Energy Efficiency and Renewable Energy administers the Hydroelectric Production Incentives Program that provides incentive payments to qualified hydroelectric facilities based upon electric energy generated and sold. Under this program, the full or partial denial of an incentive payment may be appealed to HG.
Alternative Fuel Transportation Program, 10 CFR Part 490
Section 133 of the Energy Independence and Security Act of 2007 (EISA) mandates that DOE establish a regulatory program to promote the acquisition of alternative fuel vehicles (AFVs) by State governments and certain alternative fuel providers. Under DOE’s Alternative Fuel Transportation Program, codified at 10 CFR Part 490, a party seeking an exemption from the AFV purchase requirements may file for an exemption with HG.
Medical and Physical Fitness Qualification Standards, 10 CFR Part 1046
In September 2013, DOE established standards for medical, physical performance, training, and access authorizations for protective force (PF) personnel employed by contractors providing security services to the Department. Under these standards, a PF employee who receives a certification disqualification may request a final review by HG.
Worker Safety and Health Program, 10 CFR Part 851
DOE contractors are subject to penalties for failing to operate a safe workplace. A contractor that receives a DOE final notice of violation imposing a civil penalty may petition HG for review of the final notice
Fact-Finding Reviews and Management Inquiries
HG periodically conducts fact-finding reviews and management inquiries on behalf of various Departmental elements, and issues reports of its findings. These reviews concern sensitive DOE personnel matters, sometimes at a high level, that may require disciplinary or other remedial action by DOE management.
The majority of HG’s work involves personnel security clearance cases, whistleblower cases, Freedom of Information Act appeals, and alternative dispute resolution initiatives.
Recent Organization Accomplishments
HG’s recent significant organization accomplishments include:
Continuity of Operations During COVID-19
Prior to the outset of the COVID-19 pandemic, HG took numerous operational readiness measures to ensure continuity of operations in the event of such an incident. As a result, HG was fully telework- ready and well positioned to discharge its various adjudicatory responsibilities, despite the disruption in normal operations.
Personnel Security Decisions
HG’s average processing time for issuing personnel security decisions is currently 4 days from date of receipt of a trial transcript, a record low, and a 50% improvement over FY19. Despite these rapid processing times, the quality of work remains high; 94% of HG’s personnel security decisions were affirmed on appeal.
Freedom of Information Act (FOIA) and Privacy Act Appeals Decisions
HG’s average processing time for FOIA and Privacy Act appeals is currently at 9 days, 55% better than required by Federal law. For FY 2019 (the latest year for available statistics), HG’s processing times were the lowest of any Cabinet agency. Despite this, the quality of HG’s work remains consistently high; the Office of Government Information Services has previously cited HG’s FOIA decisions as a model for the Federal government.
Alternative Dispute Resolution
HG opened 102 new ADR cases in FY20, versus 87 in FY19, evidencing the success of HG’s outreach efforts. Mediations were completed, on average, within 48 days; the majority were conducted by HG Administrative Judges and ADRO staff. HG also transitioned ADR training to WebEx and related technology, resulting in enhanced participation; one such recent training had more than 800 participants.
Technology
HG is currently conducting 98% of its security clearance hearings by VTC/WebEx/telephone, thus increasing AJ efficiency and saving travel dollars. Electronic files and web content were transitioned from the DOE hosting environment to the new, less expensive Amazon Web Services (AWS) enclave. HG maintains all case records through a Legal Files electronic case management system, enabling HG to operate remotely throughout the pandemic without interruption. HG also successfully incorporated WebEx technology for the first time to conduct mediations and facilitations.
Federal Employee Viewpoint Survey (FEVS)
For FY 2019 (the latest year for available statistics), HG received among the highest FEVS scores at DOE. HG management anticipates that this trend will continue for FY 2020.
Leadership Challenges
HG’s leadership challenges include:
Maintaining Employee Synergy During COVID-19
To keep employees engaged, and to maintain camaraderie—key aspects of employee morale—HG utilizes a weekly video conference call for all staff, solicits input for addressing workplace challenges, and maintains open lines of communication. As the pandemic continues, maintaining staff engagement will become an increasing challenge.
Succession Planning
A number of HG Administrative Judges and senior management are (or will soon be) eligible for retirement, creating a potential challenge in succession planning. HG recently hired several new attorneys and has increased leadership training to help address this challenge.
Security Clearance Adjudication
The National Background Investigation Bureau/ OPM has an increased backlog of security clearance investigations. As this backlog is reduced, HG will receive an increased number of security clearance cases for adjudication.
Alternative Dispute Resolution. HG is currently focused on enhancing the Alternative Dispute Resolution Program Department-wide; encouraging greater use of mediation; enhancing efficiency and effectiveness of the program; and ensuring more consistency in settlements across the Department. Continued support from DOE leadership is essential to the success of this initiative. [1]
Organizational Chart
Links
Internal
- Department of Energy
- Department of Energy: Transitions 2020-organization overviews table of contents
- Office of Hearings and Appeals
External
References
- ↑ DOE. (2021). Transitions 2020: Organizational Overviews. US Department of Energy.