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Summary of Decisions - October 1, 2012 – October 5, 2012

October 5, 2012 - 3:21pm


Personnel Security Hearing (10 CFR Part 710)

On October 2, 2012, an OHA Hearing Officer issued a decision in which he concluded that DOE should not grant an individual an access authorization.   A Local Security Office suspended the individual’s security clearance because of concerns regarding the individual’s use of alcohol and prior criminal activity. After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer found that the individual had not presented sufficient evidence to mitigate these security concerns.  Specifically, he cited the fact that the individual had only recently begun receiving counseling with regard to his use of alcohol and had consumed alcohol as recently as four days prior to the hearing.  The Hearing Officer also cited the testimony of a DOE consultant psychologist that the risk of use of alcohol to excess by the individual was moderate to high at this time.  Further, because four of the five most-recent criminal charges cited by the DOE were alcohol-related, and the individual had not resolved the concerns raised by his alcohol use, the Hearing Officer found that the concerns raised by the individual’s criminal conduct remained unresolved. OHA Case No. PSH-12-0052 (Steven J. Goering, H.O.)

Freedom of Information Act

On October 4, 2012, OHA granted a FOIA Appeal filed by Cause of Action (COA) of a final determination issued by the Loan Guarantee Program Office (LGPO).  COA’s request sought “[a]ll documents referring or relating to requests, including the requests themselves, by U.S. Department of Energy Secretary Steven Chu or his representatives to the IRS for information concerning whether an applicant for a loan under any DOE program has a tax delinquent account.”  On August 6, 2012, LGPO issued a determination letter (the Determination Letter) in which it indicated that it had located documents that were responsive to COA’s request. However, LGPO withheld these documents in their entirety under Exemptions 3 and 4.  OHA reviewed these documents and concluded that while small portions of these documents were properly withheld under Exemption 3 since they contained “tax return information”, much of the information contained in the documents could be segregated and released without revealing tax return information.  OHA further found that the LGPO had not adequately justified its withholdings under Exemption 4.  Accordingly, OHA remanded the Appeal to LGPO for further processing.  OHA Case No. FIA-12-0050

On October 1, 2012, OHA denied an Appeal filed by William B. Ray under the FOIA and Privacy Act.  Mr. Ray was appealing from a determination issued by the DOE’s Oak Ridge Office (ORO), in which it withheld a document requested by Mr. Ray, citing exemptions under both the Privacy Act and the FOIA.  OHA found that ORO had a proper basis for withholding the document under the FOIA Exemption 5 attorney work-product privilege, and under Privacy Act Exemption (d)(5), which exempts from release “information compiled in reasonable anticipation of a civil action or proceeding.”  Specifically, OHA found that the withheld document, an opinion from the ORO’s Office of Chief Counsel, was prepared in anticipation of administrative litigation under 10 CFR Part 710, exempting it under the FOIA Exemption 5 attorney work-product privilege, and that proceedings conducted under Part 710 are sufficiently similar to formal civil actions that they should be considered “civil proceedings” under Privacy Act Exemption (d)(5). OHA Case No. FIA-12-0049

Contractor Employee Protection Program (10 CFR Part 708)

On October 2, 2012, an OHA Hearing Officer issued an Interlocutory Order denying a Motion to Dismiss filed by Shaw AREVA MOX Services, LLC (Shaw), regarding a complaint submitted by Jeffrey S. Derrick under the DOE Contractor Employee Protection Program, 10 CFR Part 708. Shaw alleged that Derrick’s Part 708 complaint should be dismissed because Shaw’s management had prior knowledge of Derrick’s disclosures concerning pipe installation at the DOE’s Mixed Oxide Fabrication Facility in Savannah River. The Hearing Officer determined that Derrick’s disclosures, for the purpose of deciding the Motion, were not identical to the issues raised in a prior NNSA Report which had been issued to Shaw’s management.  Consequently, Shaw’s argument was unavailing.  Shaw also alleged that Derrick’s alleged disclosures failed to describe a gross waste of funds or gross mismanagement. The Hearing Officer found that one of Derrick’s disclosures adequately described a potential gross waste of funds.  Shaw also alleged that sufficient evidence existed to conclude that it would have terminated Derrick notwithstanding his alleged disclosures.  In this regard, the Hearing Officer found that Derrick’s complaint alleged sufficient temporal proximity to create a rebuttable presumption that his disclosures were a contributing factor in his termination.  OHA Case No. WBZ-12-0005