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Summary of Decisions - March 24, 2014 – March 28, 2014

March 28, 2014 - 1:13pm

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Personnel Security (10 CFR Part 710)

On March 24, 2014, an Administrative Judge issued a decision in which he concluded that an individual’s authorization access should be restored.  In June 2013, a DOE contractor employee tested positive for alcohol on a random breath alcohol test (BAT), which was administered three hours after the employee had arrived for his scheduled shift. During the prior years, the individual had been drinking 12-18 beers per week and becoming impaired from alcohol consumption on an average of twice per month. A DOE consulting psychologist evaluated the individual and concluded that the individual was a user of alcohol habitually to excess, without evidence of adequate reformation or rehabilitation, and that such alcohol use could cause a significant problem in his judgment or reliability. The individual has abstained from alcohol consumption since his positive BAT (i.e., eight months), has completed a 60-hour intensive outpatient program for alcohol treatment and was continuing in weekly aftercare meetings through his IOP treatment center. Further, the individual testified that he could give DOE a “100% assurance” that he would not consume alcohol in the future. The DOE consulting psychologist testified that these steps exceeded his recommendations to evidence adequate reformation and rehabilitation with respect to the individual’s use of alcohol habitually to excess and that, as of the hearing, the individual no longer had an illness or mental condition that could cause a significant defect in his judgment or reliability. In light of the foregoing, the Administrative Judge found that the individual had mitigated the security concerns arising from his prior alcohol use and that his security clearance should be restored.  OHA Case No. PSH-13-0128 (Wade M. Boswell)

On March 28, 2014, an Administrative Judge issued a decision in which he determined that an individual should not be granted access authorization. In reaching this determination, the Administrative Judge found that the individual had not resolved security concerns related to his falsification of two security questionnaires, alcohol use and multiple arrests or citations. Specifically, the Administrative Judge concluded that the individual had demonstrated a pattern of making false or misleading statements, and did not acknowledge the existence of an alcohol use disorder. Consequently, the Administrative Judge determined that the individual should not be granted a security clearance. OHA Case No. PSH-13-0134 (Robert B. Palmer)

Freedom of Information Act Appeal

On March 24, 2014, OHA issued a decision denying an appeal (Appeal) from a Freedom of Information Act (FOIA) determination issued by the DOE Office of Health, Safety and Security (HSS).  The Appellant appealed HSS’s determination alleging that failed to provide a “list of all Government-owned, contractor-operator facilities where DOE exercises statutory authority to enforce occupational safety and health rules.”  HSS explained it does not maintain a list of the nuclear and non-nuclear facilities that DOE oversees, and that it specifically does not have a list of the Government-owned, contractor-operated facilities where DOE exercises statutory authority to enforce occupational safety and health rules.  Nonetheless, HSS provided the Appellant with public sources where the Appellant may find the requested information.  Therefore, the OHA denied the Appeal.  OHA Case No. FIA-14-0017

Whistleblower Appeal (10 CFR Part 708)

On March 28, 2014, OHA issued a decision denying a jurisdictional Appeal filed by Frank T. Clark (Clark) of the National Nuclear Security Administration Whistleblower Program Manager’s (Manager) dismissal of his whistleblower complaint for failure to present an issue upon which relief could be granted under Part 708. Mr. Clark’s complaint alleged that, during the period 2008 to 2010, he was employed by a subcontractor, NCI. Mr. Clark alleged that he made protected disclosures under Part 708 and experienced various retaliations by NCI and was ultimately laid off because NCI lost the contract to operate the facility in 2010. In October 2013, Mr. Clark applied for a position at the facility now operated by two firms (OnPoint and CACI). In November 2013, OnPoint/CACI declined to hire Mr. Clark and he filed a complaint under Part 708 claiming retaliations by NCI during his period of employment from 2008 to 2010, and retaliation by OnPoint/CACI for failing to hire him in November 2013. OHA affirmed the Manager’s dismissal finding that the Mr. Clark failed to demonstrate sufficient circumstances to place potential Part 708 liability on NCI for alleged retaliations during 2008 to 2010 which are time barred. OHA also found that his claim against OnPoint/CACI failed to state a cause of action since there was no allegation in his Part 708 Complaint that the Appellant was ever employed by OnPoint/CACI or made any type of protected disclosure to officials at these firms or engaged in any protected activity while employed by them.  OHA Case No. WBU-14-0005 

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