Personnel Security (10 CFR Part 710)

On July 24, 2015, an Administrative Judge issued a decision in which he determined that an individual's access authorization should be restored.  The individual was arrested in December 2014 for Driving While Intoxicated.  He immediately stopped drinking alcohol and sought help voluntarily from his site's employee assistance program (EAP).  After an interview conducted by the Local Security Office, at which he described his past and current alcohol consumption patterns, he was referred to a DOE consultant psychologist for an evaluation.  By the time of the evaluation, the individual had completed an education program at the EAP.  The DOE psychologist diagnosed the individual with Alcohol Abuse, and recommended six months of abstinence but did not recommend any additional education or counseling.  At the hearing, which took place two days before the completion of six months of abstinence, the DOE psychologist expressed his opinion that the individual had met his recommendations and that his prognosis of the individual was very good for both drinking in a controlled manner in the future and for continued abstinence, which appeared to be the individual's option.  The Administrative Judge therefore concluded that the individual had resolved the security concerns raised by his alcohol use.  OHA Case No. PSH-15-0031 (William Schwartz)

Freedom of Information Act Appeal

On July 22, 2015, OHA issued a decision denying an Appeal from a FOIA determination issued by the Office of Information Resources (OIR). In the Appeal, Mr. Greg Marlowe (Appellant) challenged a determination by OIR not to waive any fees associated with processing his FOIA request and not to grant expedited processing status to the request. With respect to the fee waiver, OHA found that the Appellant had not met his burden of demonstrating that disclosure of the requested information would be likely to contribute significantly to public understanding of the operations or activities of the government. Regarding the request for expedited processing, OHA found that the Appellant had not established a “compelling need” as required by the FOIA. Accordingly, OHA denied the Appeal.  OHA Case No. FIA-15-0037

Contractor Employee Protection Program (10 CFR Part 708)

On July 21, 2015, an OHA Administrative Judge granted in part and denied in part a Motion for Summary Judgment filed by UChicago Argonne LLC (Argonne).  In its Motion, Argonne sought dismissal of a Part 708 complaint filed by Jonathan McKay against the contractor on several grounds.  After considering the parties’ full briefing of this matter, the Administrative Judge determined that: (1) Argonne’s alleged retaliatory acts that occurred more than 90 days before Mr. McKay filed his complaint would not be dismissed from the proceeding, because the bases for those acts were inextricably intertwined with those that supported his termination, which occurred less than 90 days before he filed his complaint; (2) genuine issues of material fact existed concerning Mr. McKay’s allegations of fraud, gross mismanagement, and abuse of authority; and (3) genuine issues of material fact existed concerning whether Argonne would have taken the same actions against Mr. McKay if he had not made his disclosures.  The Administrative Judge also determined, however, that (4) there was no genuine issue of material fact concerning Mr. McKay’s allegations of disclosing violations of a law, rule, or regulation, because the company directives on which Mr. McKay relied were found not to be laws, rules, or regulations for purposes of Part 708.  Consequently, the Administrative Judge denied the Motion with respect to the first three issues and granted the Motion with respect to the fourth, dismissing those allegations from the proceeding.  OHA Case No. WBZ-14-0012