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Summary of Decisions - August 26, 2013 - August 30, 2013

August 30, 2013 - 1:14pm


Personnel Security Hearing (10 CFR Part 710)

On August 27, 2013, an OHA Hearing Officer issued a decision finding that the individual should be granted a security clearance after she determined that the individual had mitigated the security concerns associated with the individual’s failure to file federal tax returns for tax years 2010 and 2011.  The Hearing Officer first found that the individual was young and immature when he failed to file his tax returns at issue. She determined that the individual relied heavily on his mother for advice and instruction on the matter, noting that the individual lived with his mother until recently. The Hearing Officer held that the mother’s misunderstanding about the individual’s obligation to file federal tax returns, the individual’s earnest ignorance of his own obligation in this regard, and the fact that the individual did not receive his W-2 forms, all contributed to the individual’s failure to file federal tax returns for the years in question.  The Hearing Officer weighed heavily evidence showing that he had filed his federal tax returns for  2010 and 2011, and had received a refund from the Internal Revenue Service for those years.  The Hearing Officer found credible the individual’s testimony that he will file his tax returns in the future, and pointed to documentary evidence in the record that the individual had filed his federal tax returns for the tax year 2012 as corroboration for the testimony.  OHA Case No. PSH-13-0076 (Ann S. Augustyn, H.O.)

On August 30, 2013, a Hearing Officer issued a decision in which he determined that an individual should not be granted access authorization. In reaching this determination, the Hearing Officer found that the individual had not resolved security concerns regarding her not reporting to her security office an arrest for failure to appear at an arraignment concerning traffic tickets, and a citation for failing to have a controlled prescription medication in its proper container. Additionally, the individual gave conflicting accounts of the circumstances surrounding her prescription medication container citation. The individual presented testimony regarding her belief that she was not required to report the incidents since the traffic tickets involved fines of less than $250 and because the container citation did not involve “illegal” drugs.  However, the Hearing Officer found that the individual’s belief that she did not have to report her arrest for failure to appear was not reasonable given the fact the individual signed a security form stating that she had to report all arrests and citations “other than a traffic citation with a fine of less than $250.” Further, the Hearing Officer found that the individual had not resolved the security concerns surrounding her inconsistent reports regarding the container citation.  Given the evidence before him, the Hearing Officer found that the individual should not be granted a security clearance.  OHA Case No. PSH-13-0049 (Richard Cronin, H.O.)

On August 28, 2013, an OHA Hearing Officer issued a decision in which he concluded that an individual’s security clearance should not be restored.  A Local Security Office suspended the individual’s security clearance because the individual had been diagnosed with alcohol dependence, opioid abuse, and major depression.  His behavior—taking as many as 12 hydrocodone pills with 18 to 24 beers on weekend days to cope with his depression—raised security concerns under Criteria H (mental conditions that cause or may cause a significant defect in judgment or reliability), J (alcohol dependence) and K (misuse of a controlled substance), as well as raising the concern that he was an unlawful user of a controlled substance in violation of DOE security requirements and barred from holding a security clearance under 50 U.S.C. Section 435c (the Bond Amendment).  After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer found that the individual had not presented sufficient evidence to resolve these security concerns.  Specifically, he found that, though the individual had been abstinent since late November 2012 and had been actively engaged in treatment for all three conditions since early December 2012, he, the DOE psychiatrist, and the individual’s treating counselor all agreed that, under these particular circumstances, the individual’s seven months of abstinence and treatment were not adequate evidence of rehabilitation from those conditions, and consequently the risk of relapse remained unacceptably high.  OHA Case No. PSH-13-0057 (William M .Schwartz, H.O.)

On August 30, 2013, an OHA Hearing Officer issued a decision in which he determined that the DOE should not restore an individual’s access authorization.  As security concerns, a Local Security Office cited, among other things, the individual’s failure to satisfy debts, the largest of which was the mortgage on his home, and his failure to provide information requested by the LSO related to his finances.  The Hearing Officer found that the individual had yet to demonstrate, let alone sustain, any pattern of financial responsibility.  Not only was an over two-year pattern of non-payment of the individual’s mortgage only very recently ended, it ended only after the intervention of his family when the individual was facing foreclosure on his home, and not because the individual took the initiative to seek their help.  Regarding the individual’s failure to provide requested information regarding his finances, the Hearing Officer similarly found that the concerns it raises regarding his judgment and reliability can be mitigated only by a sustained period of behavior demonstrating good judgment and reliability.  Given the recency of the conduct here, the individual clearly had not established such a pattern.  OHA Case No. PSH-13-0068 (Steven J. Goering, H.O.)

Freedom of Information Act (FOIA) Appeal

On August 28, 2013, OHA issued a decision denying an appeal (Appeal) from a FOIA determination issued by the DOE Office of Information Resources (OIR).  The Appellant appealed OIR’s decision to withhold information contained in two released documents pursuant to Exemption 5.  Those documents were from 1980 and concerned a meeting regarding the United States’ oil supply agreement with Israel. One document was an interagency memorandum to the DOE Secretary and the other was a memorandum addressed to the President.  OHA reviewed the released documents and determined that presidential communications privilege applied to withhold the memorandum to the President and that the deliberative process privilege was properly invoked as to the memorandum addressed to the DOE Secretary.  Thus, OHA denied the Appeal. OHA Case No. FIA-13-0056