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Summary of Decisions - June 23, 2014 – June 27, 2014

June 27, 2014 - 9:08am


Personnel Security (10 CFR Part 710)

On June 23, 2014, an OHA Administrative Judge issued a decision in which she concluded that an individual’s security clearance should be restored.  A Local Security Office (LSO) conducted a Personnel Security Interview of the individual to address concerns about her failure to file her federal and state income taxes for the years 2011 and 2012.  The individual explained that she did not file her income taxes because her database malfunctioned in 2011 and she consequently lost records from several years before; in addition, she had a part-time job, which caused her a lot of stress and distracted her from fulfilling her responsibilities, including filing her taxes.  At the hearing, she credibly testified that she realized that seriousness of filing her taxes, and she now backs up her files and she has since relinquished her part-time job.  She has also filed her income taxes for 2011, 2012 and 2013, and she is current on all her taxes.   Hence, as she filed her taxes soon after she realized the seriousness of having to file them, and the problems that led to her not filing her tax returns – computer database failure and stress from her part-time business – have been resolved or are under control, the Administrative Judge found that it is not likely that she would face the same issues again.  Accordingly, the Administrative Judge concluded that the individual’s clearance should be restored.  OHA Case No. PSH-14-0027 (Shiwali Patel)

Contractor Employee Protection Program (10 CFR Part 708)

On June 24, 2014, OHA issued a decision denying Dr. James E. Doyle’s (Appellant) Appeal of the DOE’s NNSA Whistleblower Program Manager’s (Manager) dismissal of his whistleblower complaint pursuant to 10 C.F.R. §§ 708.4(d) and 708.17(c)(4).  The Appellant alleges that, while employed with Los Alamos National Security, LLC (LANS) at the Los Alamos National Laboratory (LANL), he was retaliated against for an article he published in an international journal and his subsequent post-publication challenge of a classification decision relating to the article.  The Manager found that dismissal of the Appellant’s Complaint was appropriate under 10 C.F.R. §708.4(d) because “the complaint is based on the same facts in which you, in the course of a covered disclosure or participation, improperly disclosed Restricted Data, national security information, or any other classified or sensitive information in violation of any Executive Order, statute, or regulation.”  In addition, the Manager dismissed the Appellant’s Complaint under Section 708.17(c)(4) for lack of merit on its face.  In considering the Appeal, OHA found that Section 708.4(d) does not apply to Appellant’s Complaint because the Appellant did not disclose information “in the course of a covered disclosure or participation,” but rather the Appellant disclosed information, later determined to be classified, in an article that he published in an international journal.  However, OHA agreed with the Manager’s conclusion that the Complaint lacks merit on its face and should be dismissed pursuant to Section 708.17(c)(4) because the Appellant did not meet his evidentiary burden of showing that he disclosed information which he reasonably believes revealed a substantial violation of a law, rule or regulation.  Consequently, OHA denied the Appellant’s Appeal.  OHA Case No. WBU-14-0002