Summary of Decisions - August 1, 2016 – August 5, 2016

Personnel Security Hearing (10 CFR Part 710)

On August 4, 2016, an OHA Administrative Judge issued a decision in which he determined that an individual’s DOE access authorization should not be restored.  The LSO had alleged that individual’s history of three alcohol-related arrests (the record showed that the individual actually had a history of five alcohol related arrests), and failure to report one of these arrests to DOE Security, raised concerns about the individual’s eligibility to maintain a security clearance.  At the hearing, the individual showed that he had stopped drinking for six and an half months, had sporadically attended Alcoholics Anonymous meetings, and had met with a psychologist for nine one-hour sessions.  Even though the individual’s psychologist testified that the individual’s prognosis was now favorable, the Administrative Judge concluded that the individual’s recovery had not progressed sufficiently to resolve the risk that he would return to using alcohol.  Because each of the five incidents which led to the individual’s five arrests involved alcohol, the Administrative Judge found that the individual had not resolved the security concerns arising from his criminal conduct.  The Administrative Judge further found that the individual had not resolved the security concerns arising from his three and a half month concealment from the DOE of an arrest for making terroristic threats, since the individual had continued that concealment, and tried to prolong it, as recently as his Personnel Security Interview.   Accordingly, the Administrative Judge found that the individual had not resolved the security concerns raised by DOE.  OHA Case No. PSH-16-0024 (Steven L. Fine)

On August 4, 2016, an Administrative Judge issued a decision in which he found that individual’s access authorization should not be restored. In reaching this determination, the Administrative Judge found that the individual had not resolved security concerns under Criterion L, regarding the failure to timely file tax returns for tax years 2010 and 2011.  The individual acknowledged filing the returns in July or August of 2015, although she alternately stated that she: filed both timely; filed 2010 timely, but wasn’t sure about 2011; and filed both untimely.  The Administrative Judge determined that there was ample information in the Notification Letter to support the LSO’s reliance on Criterion L. Evidence in the record further indicated that the individual acknowledged issues with her taxes dating back to 1995, and that she acknowledged failure to timely file in tax years subsequent to 2011.  Further, the individual stated that, because of the issues caused by her late filings, she was still working with the Internal Revenue Service to determine how much she owed, and to establish a schedule of payments.  Consequently, the Administrative Judge determined that the individual had failed to resolve the Criterion L concerns, and that therefore, the individual’s security clearance should not be restored.  OHA Case No. PSH-16-0034 (Neil Schuldenfrei)

On August 4, 2016, an OHA Administrative Judge issued a decision in which he determined that an individual’s request for a DOE access authorization should be denied.  The local security office (LSO) referred the individual request to administrative review citing derogatory information under Criteria F and L.  More specifically, the LSO found that the individual had failed to disclose significant information on a security questionnaire regarding her indebtedness, and had displayed a pattern of financial irresponsibility as well as dishonesty, untrustworthiness and misconduct relating to her previous employment.   In the latter regard, the individual was terminated from her previous employment in October 2010 for misuse of her employer’s travel credit card and commuter fare card benefits.  After considering the testimony presented at the hearing, the Administrative Judge determined that the individual had failed to present sufficient mitigating evidence to resolve the security concerns.  OHA Case No. PSH-16-0038 (Robert B. Palmer)

Application for Exception

On August 3, 2016, OHA granted an Application for Stay filed by Philips Electronics North America Corporation (Philips). In the Application, Philips requested a stay of enforcement of the applicable provisions of DOE’s Energy Conservation Program: Energy Conservation Standards for Commercial and Industrial Electric Motors (Electric Motor Efficiency Standards), published on May 29, 2014, 79 Fed. Reg. 30934, and codified at 10 CFR Part 431. Specifically, Philips requested a stay of enforcement of the Electric Motor Efficiency Standards with respect to the replacement electric motors it provides its customers when servicing medical imaging devices. In evaluating Philips’ stay request, OHA found, in accordance with criteria set forth in DOE’s regulations, that Philips had shown that: (1) irreparable injury to Philips and its customers, who are mostly health care providers, would result from denial of relief, (2) denial of relief would result in immediate hardship to Philips and its customers, (3) granting a stay was desirable for public policy reasons, (4) it was impossible for Philips to immediately fulfill the requirements of the Electric Motor Efficiency Standards, and (5) there was a likelihood of Philips prevailing on the merits with respect to its accompanying Application for Exception from the Electric Motor Efficiency Standards. See 10 C.F.R. § 1003.43(b). OHA therefore granted Philips’ Application for Stay. OHA Case No. EXS-16-0014