Personnel Security (10 CFR Part 710)

On July 9, 2015, an OHA Administrative Judge issued a decision in which he determined that an individual’s DOE access authorization should be restored.  The LSO found that the individual’s history of three alcohol-related arrests, and an opinion by a DOE psychiatrist that he suffered from alcohol abuse and an adjustment disorder, which caused or may cause a significant defect in the individual’s judgement and reliability, raised concerns about the individual’s eligibility to maintain a security clearance.  At the hearing, the individual showed that he had stopped drinking, and obtained effective mental health treatment for his alcohol abuse and adjustment disorder.  On this basis, the DOE psychiatrist testified that the individual no longer has a mental illness or condition that causes or may cause a defect in judgment or reliability.  Because the individual’s three arrests were clearly out of character for him, and because they each involved alcohol, the Administrative Judge concluded that the security concerns raised by the arrests were resolved by his successful alcohol treatment and counseling.  Accordingly, the Administrative Judge found that the individual had resolved DOE’s security concerns.  OHA Case No. PSH-15-0009 (Steven L. Fine)

On July 10, 2015, an OHA Administrative Judge (AJ) issued a decision in which he concluded that the DOE should not restore an individual’s access authorization. A DOE Operations Office referred the individual to administrative review the individual’s arrests and failure to abide by court orders and the terms of his probation, his finances, his failure to keep commitments to the DOE and his provision of inconsistent and incomplete information to the DOE. After conducting a hearing, convened at the individual’s request, and evaluating all relevant evidence, the AJ concluded that the individual had not resolved the security concerns raised by his finances, his legal issues and his failure to keep his commitments. Therefore, the AJ found that the individual had not adequately addressed the DOE’s security concerns under 10 CFR § 710.8(l), and that the DOE should not restore the individual’s security clearance.  OHA Case No. PSH-15-0024 (Robert B. Palmer)

Contractor Employee Protection Program (10 CFR Part 708)

On July 7, 2015, the OHA issued a decision granting in part a jurisdictional appeal filed by Ms. Stacey Kittner, a former senior member of the technical staff of Sandia National Laboratory (Sandia).  Ms. Kittner appealed the National Nuclear Security Administration’s (NNSA) June 4, 2015, dismissal of a whistleblower complaint that she filed under 10 CFR Part 708, the DOE Contractor Employee Protection Program.  OHA denied those portions of the appeal that were based upon Ms. Kittner’s claims that she disclosed to Sandia officials and members of Congress that Sandia had been retaliating against her for filing an EEO complaint against her previous employer, the Department of Defense, since it is well settled that Part 708 does not cover complaints based upon retaliation for filing EEOC complaints.  However, Ms. Kittner’s Complaint also alleged that she disclosed that she was “instructed [by Sandia management] to destroy information that supported a year-long government project,” which could conceivably constitute a protected disclosure under 10 CFR § 708.5 if more details were provided.  Accordingly, OHA remanded this matter to the NNSA, with instructions that it provide Ms. Kittner with an opportunity to show that her alleged report to Congress that Sandia managers regarding destruction of information constituted a protected disclosure.  OHA Case No. WBU-17-0007