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Summary of Decisions - July 28, 2014 – August 1, 2014

August 1, 2014 - 8:25am

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Personnel Security (10 CFR Part 710)

On August 1, 2014, an Administrative Judge issued a decision in which he determined that an individual’s access authorization should be restored. In reaching this determination, the Administrative Judge found that the individual had resolved security concerns under Criteria F, J, H, and L regarding the individual’s treatment for Alcohol Dependence and a falsification concerning illegal drug use contained in her 2011 Questionnaire for National Security Positions (QNSP). The individual presented evidence regarding her treatment at an inpatient treatment facility and her participation in treatment programs after leaving the facility. Both the individual’s therapist and the DOE psychiatrist who had diagnosed her Alcohol Dependence found that the individual had demonstrated adequate evidence of rehabilitation from her Alcohol Dependence. With regard to the individual’s false answer on her 2011 QNSP that she had not used marijuana in the past seven years, the individual admitted that she had smoked marijuana during the period 2004 to 2008.  The Administrative Judge found that the individual’s use of marijuana occurred several years ago when the individual was intoxicated. Further, there was no additional evidence that in the period since 2008 the individual had used marijuana or had failed to comply with rules or regulations. Consequently, the Administrative Judge found that the individual’s security clearance should be restored.  OHA Case No. PSH-14-0030 (Richard Cronin)

On July 30, 2014, an OHA Administrative Judge issued a decision in which he concluded that an individual’s security clearance should be not restored.  A Local Security Office (LSO) conducted a Personnel Security Interview of the individual to address concerns regarding his financial irresponsibility.  After the interview, the LSO referred the individual’s security clearance to administrative review, citing his:  1) outstanding federal and state tax debt totaling $70,105.08; 2) delinquent and unpaid debts totaling $370,280.04; 3) pattern of financial irresponsibility; and 4) failure to report his 2013 wage garnishment with the Internal Revenue Service (IRS) to the DOE personnel security.  While the Administrative Judge found that the individual sufficiently mitigated the concerns regarding his failure to report the wage garnishment, he found that the individual did not sufficiently resolve the security concerns related to his financial debt.  Specifically, the individual did not show that a majority of his debts have been taken care of, and he still has a large amount of federal tax debt in addition to his various other debts.  Moreover, he only recently began to start paying off some of his debts, and therefore, had not established a sustained pattern of financial responsibility.  OHA Case No. PSH-14-0045 (William M. Schwartz)

On August 1, 2014, an OHA Administrative Judge issued a decision finding that an individual’s security clearance should be restored after determining that the documentary and testimonial evidence showed that the individual had demonstrated adequate evidence of rehabilitation from her habitual use of alcohol to excess and her past pattern of alcohol abuse. Specifically, the Administrative Judge found that the individual had acknowledged her alcohol problem, had provided evidence of her actions taken to address her alcohol-related problems, including successful completion of an Intensive Outpatient Alcohol Program with required aftercare, and had demonstrated a clear pattern of abstinence in accordance with her treatment recommendations. In addition, the Administrative Judge pointed to the DOE psychologist’s testimony that the individual’s prognosis was excellent now, and that she had a low probability of recurrence of her alcohol-related problems. OHA Case No. PSH-14-0024 (Kimberly Jenkins-Chapman)

Freedom of Information Act (FOIA) Appeals

On July 31, 2014, OHA issued a decision remanding an Appeal of a FOIA determination issued by the Bonneville Power Administration (BPA).  The Appellant, Ted Sickinger, appealed BPA’s decision to withhold documents responsive to two parts of his FOIA Request in their entirety pursuant to Exemption 6.   As BPA did not specify the privacy concerns at issue and how they would be compromised by release of the information, OHA concluded that the justifications in BPA’s Determination Letter were conclusory and insufficient.  Accordingly the OHA remanded the appeal to BPA to issue a new determination. OHA Case No. FIA-14-0041

On July 30, 2014, OHA denied a FOIA Appeal filed by Tri-Valley CARES (Appellant) of a determination issued by the National Nuclear Security Administration (NNSA).  In the determination, NNSA withheld portions of a document entitled “B368 Select Agent Risk and Threat Assessment” pursuant to Exemption 7(F) as information compiled for law enforcement purposes that, if released “could reasonably be expected to endanger the life or physical safety of any individual.”  The Appellant challenged that determination on the ground that the withheld information was not “created” for law enforcement purposes and that the agency had not named the individuals whose life or safety could be endangered.  OHA rejected the arguments as inconsistent with court precedent, finding that the withheld information, if released, could enable anyone, including terrorists, to more easily plan operations that would target the facilities at issue and endanger the life or physical safety of security police offers, federal employees, and the general public.  Accordingly, OHA denied the Appeal.  OHA Case No. FIA-14-0042

Contractor Employee (“Whistleblower”) Protection Program

On August 1, 2014, OHA denied an appeal of an Initial Agency Decision (IAD) issued by an OHA Administrative Judge on May 8, 2014, which denied a Complaint filed by Alison Marschman (hereinafter referred to as “the Employee”) against her former employer, Battelle Energy Alliance (hereinafter referred to as “the Contractor”), under the DOE’s Contractor Employee Protection Program, 10 CFR Part 708.  In that IAD, the Administrative Judge found, after an evidentiary hearing, that the Employee had participated in protected activities under Part 708.  However, the Administrative Judge found that the Employee had not demonstrated, by a preponderance of the evidence, that the Employee’s participation in a protected activity was a contributing factor to the Contractor’s decision to verbally warn her in November 27, 2012, or to terminate her in January 2013, and further found that the Contractor had met its burden of showing, by clear and convincing evidence, that it would have terminated the Employee in the absence of her protected activity.  The Employee appealed a large number of findings contained in the IAD.  After considering the arguments set forth in the Employee and Contractor Appeal briefs, OHA affirmed the IAD determination that the Employee had not met her initial burden of proving that her protected activity was a contributing factor to her termination.  OHA also concurred with the Administrative Judge’s conclusion that the Contractor would have carried its burden to show by clear and convincing evidence that it would have verbally reprimanded the Employee in November 2012, and terminated her in January 2013, even in the absence of her protected activity.  OHA Case No. WBA-13-0011

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