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Summary of Decisions - May 19, 2014 – May 23, 2014

May 23, 2014 - 9:56am

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Personnel Security (10 CFR Part 710)

On May 22, 2014, an Administrative Judge issued a decision in which he 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 security concerns regarding the individual’s history of delinquent and charged off credit card accounts and the recent foreclosure of her residence. However, the individual resolved an allegation that she had not filed or paid her 2006 state income tax.  While the individual had taken steps to settle two charged off credit card accounts, the Administrative Judge found that she had exercised poor judgment in stopping her mortgage payments so that she might be able to restructure the mortgage. Additionally, the individual had not shown an adequate period of financial responsibility adequate to resolve her history of financial instability. Consequently, the Administrative Judge found that the individual had not totally mitigated the security concerns and that her security clearance should not be restored.  OHA Case No. PSH-14-0016 (Richard Cronin)

On May 19, 2014, an Administrative Judge issued a decision in which he 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 security concerns regarding the individual’s rule violations in bringing a cell phone into an unauthorized area and conducting gambling pools at a DOE facility.  Additionally, the individual had not been candid when asked about these activities. The individual presented testimony from co-workers and her father attesting to the individual’s adherence to workplace safety and security rules. The individual also presented evidence indicating that she did not have any problematic gambling behavior. However, the Administrative Judge found that the individual had not presented sufficient evidence to resolve all of the concerns, especially given the fact that her rule violations and misrepresentations were recent.  OHA Case No. PSH-14-0005 (Richard Cronin)

On May 23, 2014, an OHA Administrative Judge issued a decision in which she concluded that the DOE should not restore an individual’s suspended DOE access authorization.  A DOE Operations Office referred the individual to administrative review citing the individual’s outstanding delinquent federal and state taxes and other debts, issues pertaining to her overall pattern of financial irresponsibility, as well as her omission of certain information on a security questionnaire, as security concerns.  After conducting a hearing and evaluating the documentary and testimonial evidence, the Administrative Judge concluded that the individual mitigated the security concerns raised by her omissions on the security questionnaire because the omissions were the result of the individual’s misunderstanding of certain questions on the form rather than a deliberate falsification of the questionnaire.  However, the Administrative Judge further determined that the individual had not resolved the security concerns raised by her pattern of financial irresponsibility.  In this regarding, the Administrative Judge found that, although the individual had made significant progress in addressing her outstanding debts and developing a manageable financial plan for the future, she was still in the very early stages of establishing her financial stability.  Therefore, the Administrative Judge was unable to conclude that the individual’s financial difficulties were in the past and unlikely to recur and, therefore, do not cast doubt on her current reliability, trustworthiness or good judgment.  Accordingly, the Administrative Judge found that the DOE should not restore the individual’s suspended security clearance at this time.  OHA Case No. PSH-14-0012 (Diane DeMoura)

On May 22, 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 failure to file his federal income tax for the years 2009 through 2012 and an unsatisfied state lien.  As of the date of the hearing, the individual had not filed his federal income taxes for 2009 through 2012.  He failed to mitigate the concern, failing to show that the behavior was infrequent or so long ago as to be a little concern, there was no reason for his failure to file, he received no counseling and had not made a good faith effort to file his taxes.  As to the state tax lien, although he has started making payments, it is not yet paid in full.  In addition, he did not show that the behavior was infrequent or so long ago to be of little concern.  Further, he did not dispute the validity of the lien.  Based on the foregoing, the Administrative Judge concluded that the individual had not mitigated the security concerns and that his access authorization should not be restored.  OHA Case No. PSH-14-0022 (Janet R. H. Fishman).

On May 19, 2014, an OHA Administrative Judge issued a decision in which she concluded that an individual should not be granted access authorization.  Pursuant to criteria (k) of part 710.8 and the Bond Amendment, a Local Security Office (LSO) cited the individual’s positive drug test for cocaine during a random urinalysis on April 15, 2012, while holding a security clearance at his previous job, for which his security clearance was eventually suspended.  Under criteria (f), the LSO cited the individual’s failure to report during his Office of Personnel Management background investigation that he used illegal drugs within the last seven years, his outstanding debt and judgment for $1,982.49, his arrest in mid-2005 for pulling a fire alarm at a high school, his security clearance suspension and his positive drug test.  While the individual claimed that he never ingested cocaine, he failed to provide any corroborating evidence supporting his claims, particularly in light of the strong probative evidence relied upon by the LSO – the urinalysis result. The individual also did not mitigate the concerns associated with criterion (f), as he deliberated misrepresented significant information during his background investigation and did not provide any evidence to mitigate the LSO’s concerns.  For these reasons, the Administrative Judge could not find that the individual resolved the security concerns related to this drug usage and deliberate misrepresentations during his background investigation under Criteria (f) and (k) and the Bond Amendment, and she decided that the individual should not be granted access authorization.  OHA Case No. PSH-14-0008 (A.J. Patel)

On May 21, 2014, an OHA Hearing Officer 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 his debts and financial problems.  Specifically, the LSO cited several collections accounts, charged-off accounts, foreclosure of the individual’s home, a Chapter 7 bankruptcy he filed in 2003 and Chapter 13 bankruptcy from 2008.  At the hearing, the individual explained that has soon as he discovered the debts, he paid them off or requested that that the credit bureaus investigate them and some of the debts were eventually removed from the credit reports.  He and his husband both testified that his accumulation of so much debt and his financial troubles were largely attributed to his husband’s excessive spending elicited by his bipolar condition.  As his husband’s doctor provided a note stating that his bipolar condition is stable and that he is a low risk of relapse, the Administrative Judge did not find that the individual’s financial problems were likely to recur due to his husband’s actions.  More importantly, the Administrative Judge concluded that the individual acted responsibly in addressing the concerns when they were brought to his attention and he became more cognizant of what steps to take to protect his credit.  Accordingly, the Administrative Judge concluded that the individual’s clearance should be restored.  OHA Case No. PSH-14-0019 (A.J. Patel)

On May 22, 2014, an OHA Administrative Judge issued a decision in which he determined that an individual’s DOE access authorization should not be restored.  The individual had a pattern of failing to meet his financial obligations dating back to at least 2006.  At the onset of the proceeding, the individual: (1) owed the IRS approximately $34,000.00 in back taxes for tax years 2007, 2008, 2009, and 2010, (2) had not established a payment plan or made monthly payments to resolve his Federal tax debt, (3) owed $3,025.83 in delinquent property taxes for tax years 2008, 2009, 2010, 2011 and 2012, (4) had not established a payment plan or made payments on these tax debts, (5) had not made a monthly mortgage payment for his current residence since August 2010, (6) had defaulted on the mortgage for his current residence, resulting in its foreclosure, (7) had defaulted on at least 10 other mortgages on seven investment properties, each of which has been foreclosed, and (8) had a credit card account with a balance of $10,322.00, in charge-off status.  At the hearing, the individual argued that his financial problems resulted from a number of circumstances that were out of his control, while conceding that at times he had made some mistakes.  He further contended that he expected to restore his family’s financial stability, by the end of 2015.  The Administrative Judge found that while the decline of the real estate market, and the loss of his spouse’s income, were definitely contributing factors to his financial difficulties, so were his repeated failures to exercise sound judgment in conducting his financial affairs. Moreover, the Administrative Judge found that individual has not submitted a sufficiently realistic and detailed financial plan to show that he can live within his means going forward and address his outstanding debt or that he would have the willingness or ability to successfully implement it.  Finally, the Administrative Judge that the individual was a particularly unreliable historian, and that he was unable to trust the allegedly mitigating information an individual had provided.  OHA Case No. PSH-14-0023 (Steven L. Fine)

Freedom of Information Act (FOIA) Appeals

On May 16, 2014, the Office of the Chief Information Officer (CIO) issued a decision denying an appeal (Appeal) from a FOIA determination issued by the DOE’s Office of Hearings and Appeals (OHA). The Appellant, Tim Hadley, sought records relating to American Recovery and Reinvestment Act (ARRA) whistleblower cases processed by OHA including case number, case date, plaintiff and defendant and case outcome. OHA identified several responsive documents consisting of printed database information listing ARRA whistleblower cases referred to OHA with various fields containing information regarding each case. OHA redacted fields that contained the names of the individuals filing the complaints, the names of former and present federal OHA attorney employees assigned to each case, the federal OHA attorneys’ E-mail addresses, and the name of the current federal OHA employee who entered data into the database pursuant to Exemption 6. The CIO found that OHA correctly found that each of the named individuals, employees, and former employees had significant privacy interest. The CIO also found that release of the identifying information would not further the public interest since the information would not shed any light with regard to the operations and activities of government. In considering the Exemption 6 balancing test, the CIO found that the significant privacy interests connected to the withheld names and other identifying information was not outweighed by the illusory public interest in releasing the information. Consequently, the CIO found that OHA properly invoked Exemption 6 to withhold the information and the Appeal was denied.  OHA Case No. FIA-14-0025

On May 19, 2014, OHA granted in part and denied in all other respects a FOIA Appeal filed by Southeastern Legal Foundation (Appellant) of a determination issued by the National Nuclear Security Administration (NNSA).  In its request, the Appellant challenged the adequacy of NNSA’s search for responsive documents because it did not receive any research data generated by Dr. Benjamin Santer and it did not believe no actions were taken on his research or the research of others into anthropogenic climate change.  NNSA released 41 documents to the Appellant, which consisted of final papers written by Dr. Santer.  OHA denied this portion of the Appeal for two reasons.  First, Dr. Santer does not generate any research data, but rather he collects data or other researchers and analyzes that.  Second, the Appellant had previously told NNSA that the final papers would be considered as fully responsive to its request.  In denying the second part of the Appeal, as applied to NNSA, OHA found that NNSA and Lawrence Livermore National Laboratory do not take any actions on the climate change research.  NNSA suggested that the Office of Biologic and Environmental Research would be the office that takes any action on the research.  OHA contacted the Office of Information Resources (OIR), the office which originally received the request and forwarded it to NNSA, to determine which, if any offices, were searched at DOE Headquarters.  OIR informed us that both the Office of Science (SC) and the Office of Policy and International Affairs (PI) were asked to conduct a search prior to the request being sent to NNSA.  Both offices responded that they do not promulgate regulations and, therefore, they had no responsive documents.  OHA asked that both those offices search again for “any actions” taken on the research.  At the time of this decision, both offices were still searching.  Therefore, OHA granted the request in part and remanded the matter to OIR.  OHA denied the remainder of the Appeal.  OHA Case No. FIA-14-0027

Contractor Employee Protection Program (10 CFR Part 708)

On May 21, 2014, OHA denied an Appeal involving a complaint filed by Sherrie Walker (Walker) against Idaho Treatment Group LLC (ITG) under the DOE’s Contractor Employee Protection Program and its governing regulations set forth at 10 CFR Part 708.  In her complaint, Walker alleges that she has repeatedly reported concerns of non-compliance, abuse of management and misconduct and, as a result, has been subjected to retaliation by ITG. The OHA Investigator dismissed Walker’s Complaint because she found that Walker had failed to state a claim upon which relief could be granted under Part 708 and had failed to follow procedural regulations set forth in Section 708.13. Walker claimed she made protected disclosures (1) at an all-hands meeting relating to procedural non-compliance (giving the example that ITG management was permitting the use of ink on documents other than the color ink specified in an ITG procedure) and (2) during a meeting with ITG’s Ethics Officer (with respect issues including those focused on lack of communication within Walker’s group and her request for management to hold regular staff meetings; comments made by ITG management officials to Walker or about Walker; and preferential treatment received by Walker’s direct supervisor. On review, OHA found that (1) Walker’s disclosures with respect to ITG non-compliance with its own internal policies did not constitute disclosures protected by Part 708 since they did not relate to a violation of a law, rule or regulation (i.e., a violation of a government mandate), and (2) Walker’s disclosures relating to ITG management practices did not constitute disclosures protected by Part 708 as they appeared to reflect Walker’s disagreement or discomfort with ITG’s management decisions or styles without rising to the level of gross mismanagement, gross waste of funds or abuse of authority as required by Part 708. Consequently, OHA held that Walker’s complaint failed to establish that she made a disclosure protected under Part 708 and denied her Appeal.  OHA Case No. WBA-13-0015

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