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Summary of Decisions - June 2, 2014 – June 6, 2014

June 6, 2014 - 8:42am


Personnel Security (10 CFR Part 710)

On June 5, 2014, an OHA Administrative Judge issued a decision in which he concluded that an individual’s security clearance should not be restored.  The individual was originally granted access authorization following a favorable administrative review decision in 2004. Prior to the 2004 hearing, the individual had been twice convicted of Boating Under the Influence of Alcohol and had been diagnosed by a DOE consulting psychiatrist as alcohol dependent. At the 2004 hearing, the individual stated that he was continuing treatment and intended to maintain complete abstinence from alcohol in the future. Approximately one year later, the individual returned to consumption of alcohol in the belief that he could consume responsibly. Following disclosure of his renewed alcohol consumption during a periodic reinvestigation of his security clearance in 2013, the LSO referred him to a DOE consulting psychiatrist who diagnosed the individual as suffering from alcohol abuse and opined that the individual’s alcohol abuse causes, or may cause, a significant defect in his reliability and judgment. The LSO suspended the individual’s access authorization citing Criteria H and J. After some period of indecision, the individual returned to a church-based recovery group and began abstaining from alcohol three months prior to the 2014 hearing. Much of the individual’s 2014 testimony paralleled his 2004 testimony, including with respect to his planning to obtain a sponsor and to participate in his recovery group’s separate 12-step class, neither of which he did following the 2004 hearing. The individual was evaluated by a his own forensic psychiatrist one week prior to 2014 hearing, who prepared a one-page report without any explicit analysis to support the conclusion that the individual no longer met the criteria for an alcohol use disorder since he had become abstinent in February; the forensic psychiatrist was not presented as a witness at the hearing. At the hearing, the DOE psychiatrist testified as to his recommendation that, to evidence adequate reformation or rehabilitation, the individual would need to, inter alia, complete a structure alcohol treatment program, in conjunction with participation in recovery group, and 18 months of complete abstinence (or longer if he did not completed a structured treatment program). The Administrative Judge, noting weaknesses in the forensic report, gave it limited weight and held that three months of abstinence and participation in a recovery group (with no participation in a structured treatment program) did not constitute adequate rehabilitation or reformation of the individual’s alcohol abuse. OHA Case No. PSH-14-0021 (Wade M. Boswell)

On June 6, 2014, an OHA Administrative Judge (AJ) issued a decision in which she concluded that the DOE should restore an individual’s suspended DOE access authorization.  A DOE Operations Office referred the individual to administrative review citing as a security concern the individual’s failure to file Federal income tax returns for tax years 2010 and 2012.  After conducting a hearing, convened at the individual’s request, and evaluating all relevant evidence, the AJ concluded that the individual presented information to fully resolve the security concerns.  The AJ found that the individual acknowledged that his failure to file his tax returns was unacceptable, and he demonstrated remorse for his conduct.  In addition, the individual has since filed his delinquent returns.   Finally, the individual demonstrated that he learned from his mistake and has taken steps to prevent the recurrence of similar issues in the future.  Based on the evidence in the record, the AJ concluded that the individual’s conduct at issue was an atypical lapse in judgment that is unlikely to recur in the future and does not cast doubt on his current reliability, trustworthiness or good judgment.  Accordingly, the AJ found that the DOE should restore the individual’s suspended security clearance.  OHA Case No. PSH-14-0018 (Diane DeMoura)

On June 5, 2014, an OHA Administrative Judge issued a decision in which he determined that an individual’s DOE access authorization should be restored.  The individual had a pattern of failing to meet her financial obligations dating back to at least 1997.  In addition, a DOE psychiatrist diagnosed the individual with Gambling Disorder.  At the hearing, the psychiatrist testified that the individual’s Gambling Disorder was in remission, that her prognosis was excellent, and that there was only a small chance that she would relapse. In addition, the individual testified that she had not gambled for seven months and that she had resolved each of her eight outstanding debts.  Accordingly, the Administrative Judge found that the individual had mitigated the security concerns raised by her pattern of financial irresponsibility and Gambling Disorder diagnosis.  OHA Case No. PSH-14-0017 (Steven L. Fine)

On June 2, 2014, an OHA Administrative Judge issued a decision in which she determined that an individual’s access authorization should not be restored.  In reaching this determination, the Administrative Judge found that the individual had not resolved the security concerns arising from falsifications on his Questionnaire for National Security Positions (QNSP); delinquent debts; and failure to report to the DOE two bankruptcy filings and a wage garnishment.  At the hearing, the individual claimed that he failed to list delinquent debts on his QNSP because he believed it would be easier to explain his situation in person to an investigator.  The Administrative Judge found that he deliberately falsified his QNSP and did not mitigate the concern with his “good intensions.”  The Local Security Office also claimed that the individual falsified information on the QNSP regarding a wage garnishment.  The Administrative Judge found that the garnishment did not occur until after the date he signed his QNSP, therefore, he did not falsify the answer to that question.  As to the delinquent debts, the Administrative Judge found that, although the individual filed for Chapter 7 bankruptcy prior to the hearing, as his debts are not yet discharged and he has not established a pattern of financial responsibility, he has not yet sufficiently mitigated the security concerns.  As to his failure to report his bankruptcies and wage garnishment, the Administrative Judge found that he mitigated that concern by showing that he had no knowledge of the bankruptcy filings as his brother filed them on his behalf to stop foreclosure on the individual’s primary residence.  As to the wage garnishment, the individual’s claim that he thought the DOE had knowledge of the garnishment was not persuasive.  Based on the foregoing, the Administrative Judge concluded that the individual had not adequately mitigated the security concerns and that his access authorization should not be restored.  OHA Case No. PSH-14-0013 (Janet R. H. Fishman)

On June 5, 2014, an OHA Administrative Judge issued a decision in which she concluded that an individual’s security clearance should be restored.  In January 2014, as part of a background investigation, the local security office (LSO) conducted a Personnel Security Interview (PSI) of the individual to address concerns about her failure to file federal income tax returns for tax years 2011 and 2012.  The individual’s behavior raised security concerns under Criterion L.  After conducting a hearing and evaluating the documentary and testimonial evidence, the Administrative Judge found that the individual’s significant job stressors, the sickness and subsequent passing of her mother-in-law and complications related to three failed family businesses all contributed to the individual’s failure to file her federal tax returns.  During the hearing, the individual demonstrated that she has now filed her federal income tax returns for the 2011 and 2012 tax years, thereby fulfilling her obligation to file tax returns for those years.  The individual also submitted evidence that she timely filed her 2013 federal income tax return, and testified credibly that she now completely understands her obligation to file federal income tax returns in a timely fashion and will do so in the future.  The Administrative Judge was convinced that the individual’s conduct at issue happened under unique circumstances and is unlikely to recur.  In the end, she found that the individual’s failure to file her federal income tax returns stemmed from the overwhelming stressors in her life, not a willful disregard of the law.  Accordingly, the Administrative Judge concluded that the individual has adequately mitigated the security concerns at issue.  OHA Case No. PSH-14-0006 (Kimberly Jenkins-Chapman)

Freedom of Information Act (FOIA) Appeals

On June 5, 2014, OHA denied a FOIA Appeal filed by Richard van Dijk (Appellant) of a determination issued by the Bonneville Power Administration (BPA).  In its Appeal, the Appellant challenged the BPA’s withholdings on pages 86-95 under Exemption 5 and on page 101 as non-responsive.  OHA found that BPA’s withholdings under Exemption 5 were proper as the documents were pre-decisional and contains material that reflects DOE’s deliberative process.  OHA also found that there was no public interest in release of the material and that all factual information had been segregated, with the exception of page 88.  OHA determined that page 88 was all factual information.  BPA agreed and released that page to the Appellant.  As to page 101, which BPA claimed was non-responsive to the request, OHA agreed and found that it was properly withheld. Therefore, OHA denied the Appeal.  OHA Case No. FIA-14-0029

On June 2, 2014, the OHA issued a decision denying an appeal from a FOIA determination issued by the DOE’s Oak Ridge Office (ORO). The Appellant, Martha McNeely, contested the adequacy of ORO’s search for responsive documents and claimed that a search for documents should have also been conducted under the Privacy Act.  The OHA reviewed ORO’s description of its search, indicating that searches were conducted under both the FOIA and the Privacy Act at the Oak Ridge Associated Universities and the Pacific Northwest Laboratory, and that search terms specifically pertaining to the Appellant’s FOIA Request were applied.  Nonetheless, ORO could not locate any responsive documents.  Therefore, OHA concluded that ORO conducted an adequate search for records and denied the Appeal. OHA Case No. FIA-14-0028