Summary of Decisions - August 12, 2024 -August 23, 2024

FOIA Appeal (FIA)  

On August 16, 2024, the OHA Director issued a decision denying a Freedom of Information Act appeal. The appeal argued that NNSA's search was inadequate because it did not perform a search for the requested records: records of a chip implanted in Appellant's body by the military and CIA . NNSA initially denied the request, stating that it did not maintain such records. NNSA defended its denial, arguing that it was not required to search for records that it does not maintain. The OHA Director cited well-established case law in agreement with NNSA's argument and denied the appeal. (OHA Case No. FIA-24-0044)

FOIA Appeal: Agency Records, Denied

On August 16, 2024, the Office of Hearings and Appeals (OHA) denied a Freedom of Information ( FOIA) appeal filed by Savannah River Site Watch (Appellant) from a determination letter issued by the National Nuclear Security Administration (NNSA), Office of General Counsel. The Appellant submitted a FOIA request seeking records by the Tiger Team, pertaining to the proposed Savannah River Plutonium Processing Facility, including records related to CD-2 and CD-3 activities. The NNSA found that records responsive to the request were contractor-owed, and not agency records subject to FOIA . After reviewing the appeal, OHA concluded that pursuant to the Prime Contract between the NNSA and Savannah River Nuclear Solutions (SRNS), the Management and Operation contractor of the Savannah River Site, responsive records related to procurement actions of SRNS and were therefore, contractor-owned, and not agency records subject to FOIA. Accordingly, the Appellant's appeal was denied. (OHA Case No. FIA-24-0041)

Personnel Security Hearing (PSH)

Access Authorization; Denied

On August 23, 2024, an Administrative Judge determined that an Individual's access authorization should not be restored under 10 C.F.R. Part 710. The Individual was arrested and charged with Battery in 2022 and 2023 in connection with alleged acts of domestic violence. The Individual met with a DOE-contracted psychologist (DOE Psychologist) who concluded that the Individual habitually or binge consumed alcohol to the point of impaired judgment and met sufficient diagnostic criteria for a diagnosis of Alcohol Use Disorder (AUD) under the Diagnostic and Statistical Manual of Mental Disorders -Fifth Edition, Text Revision (DSM-5-TR). The DOE Psychologist additionally determined that the Individual met sufficient diagnostic criteria for a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood under the DSM-5-TR. The DOE Psychologist recommended that the Individual receive counseling for his Adjustment Disorder and demonstrate rehabilitation from his AUD by abstaining from alcohol for one year, documenting his abstinence from alcohol with alcohol testing, and participating in an intensive outpatient program for alcohol treatment or Alcoholics Anonymous . At the hearing, the Individual claimed to have reduced his alcohol consumption and offered the testimony of a counselor who was providing him with mental health services. However, the Individual did not undergo alcohol testing and his counseling was primarily focused on his Adjustment Disorder rather than alcohol. The Administrative Judge concluded that the Individual had resolved the security concerns under Guideline I, but not the security concerns under Guidelines G and J. Therefore, the Administrate Judge determined that the Individual's access authorization should not be restored. (OHA Case No. PSH-24-0123, Harmonick)

Access Authorization Not Granted; Guideline E (Personal Conduct)

On August 23, 2024, an Administrative Judge determined that the Individual's access authorization should not be granted under 10 C.F.R. Part 710. The Individual is employed by a DOE Contractor in a position that requires him to hold an access authorization. The Local Security Office (LSO) received potentially derogatory information indicating that the Individual failed to disclose specific information in Questionnaires for National Security Positions (QNSP) and enhanced subject interviews. The LSO also alleged that the Individual previously attempted to manipulate a polygraph test. Although the Individual was able to mitigate some concerns, the Individual was not able to mitigate the allegation that he omitted a 2019 warning from the most recent QNSP. (OHA Case No. PSH-24-0134, Rahimzadeh)

Access Authorization Guideline G

On August 19, 2024, an Administrative Judge determined that the Individual's access authorization should not be restored under 10 C.F.R. Part 710. In June 2023, the Individual was charged with Aggravated Driving While Intoxicated (DWI) and Open Container. The LSO subsequently issued a Letter of Interrogatory (LOI) and requested that the Individual be evaluated by a DOE-consultant Psychiatrist (DOE Psychiatrist), who found that he met sufficient Diagnostic and Statistical Manual of Mental Disorders -Fifth Edition (DSM-5) criteria for a diagnosis of Alcohol Use Disorder (AUD), moderate, without adequate evidence of rehabilitation or reformation. After receiving the DWI, the Individual participated in his employer's fitness for duty (FFD) alcohol and drug treatment program.  He testified that once he finished that and was cleared by the FFD, he consumed some alcohol again . At the hearing, he testified that he last consumed alcohol in November 2023. In his report, the DOE Psychiatrist recommended that the Individual should demonstrate alcohol abstinence for twelve months, participate in Alcoholics Anonymous (AA) or a similar program by attending three meetings per week, and provide monthly PEth tests. The Individual provided evidence that he restarted the alcohol treatment program with his employer and was attending the aftercare program. He also provided evidence that he had attended twelve AA type program sessions, however his attendance was sporadic at best. His counselor from his employer's aftercare program testified that he is enjoying the program and being sober. At the hearing, the DOE Psychiatrist stated that the Individual only partially complied with the recommendations that he provided in his report, however, he has not be abstinent for twelve months. The Administrative Judge found that none of the mitigating conditions have been satisfied and that the Individual had not demonstrated that he had resolved the security concerns arising under Guideline G. (OHA Case No. PSH-24-0108, Fishman)

Access Authorization Not Restored; Guideline G (Alcohol Consumption)

On August 20, 2024, an Administrative Judge (AJ) with DOE's Office of Hearings and appeals issued a decision not to restore an Individual's security clearance. The Individual was asked to take an alcohol test at work and arrived to the clinic over two hours later and was two minutes past his testing deadline. The result of the test was positive for alcohol but below the threshold for impairment. The Individual was referred to a DOE Contractor Psychologist for an evaluation and was diagnosed with Alcohol Use Disorder, Moderate. At the hearing, the Individual presented evidence documenting four months of abstinence from alcohol and testified that he may return to drinking in the future. The DOE Contractor Psychologist testified that the Individual was not rehabilitated or reformed because he had not been sober long enough and was not as deep into his recovery program as he should have been . The AJ found that the Individual had not mitigated the concerns raised under Guideline G and, therefore, recommended that his security clearance not be restored. (PSH-24-0114, Martin) (OHA Case No. PSH-24-0114, Martin)

Access Authorization Not Restored

On August 20, 2024, an Administrative Judge (AJ) determined that an Individual's access authorization under 10 C.F.R. Part 710 should not be restored. 
The Individual had a history of four Driving Under the Influence (DUI) arrests. A DOE-contracted Psychiatrist (Psychiatrist), applying the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders -Fifth Edition -Text Revision (DSM-5-TR), evaluated the Individual and diagnosed him with Alcohol Use Disorder (AUD).

The AJ found that the Individual had not shown that he was rehabilitated or reformed from his AUD, since had had only been abstaining from alcohol use for a period of three -and-a-half months at the time of the hearing. Moreover, the Individual failed to fully comply with the Psychiatrist's treatment recommendations having engaged in a less intensive treatment program than recommended and having failed to attend a self-help program such as Alcoholics Anonymous or SMART Recovery.

The AJ therefore concluded that the Individual's access authorization should not be restored. (OHA Case No. PSH-24-0107, Fine)

Access Authorization Not Restored; Guideline G (Alcohol Consumption), Guideline J ( Criminal Conduct)

On August 14, 2024, the Administrative Judge determined that the Individual's access authorization should not be restored under 10 C.F.R. Part 710. The Individual is employed by a DOE contractor in a position that requires him to hold a security clearance. The Local Security Office (LSO) received potentially derogatory information indicating that the Individual had been arrested and charged with, among other things, DWI after consuming alcohol and driving home. The Individual was also evaluated by a DOE-consultant psychologist (DOE Psychologist) who determined that the Individual drinks habitually and he binge consumes alcohol on a regular basis to the point of impaired judgment. The DOE Psychologist did not find adequate evidence of rehabilitation or reformation and made a series of recommendations. The Individual did not discontinue consuming alcohol and did not implement any of the DOE Psychologist's recommendations. Accordingly, the Individual was not able to mitigate the stated Guideline G and J concerns. (OHA Case No. PSH-24-0102, Rahimzadeh)

Access Authorization; Guideline F (Financial Considerations)

On August 14, 2024, an Administrative Judge determined that the Individual's access authorization should be granted under 10 C.F.R. Part 710. During the background investigation, the Individual admitted that he had not filed his 2021 or 2022 federal or state tax returns. At the hearing, he testified that due to his father's death and his own serious illness and surgery, he asked for an extension in which to file his 2021 federal and state tax returns. However, when the time case to file, he underwent another surgery. During this time, he also closed his small business. The Individual stated that due to the closure of his business making his taxes more difficult, he procrastinated doing his taxes. He provided evidence that he filed both his 2021 and 2022 tax return in March 2024. The Administrative Judge found that the mitigating condition (g) has been satisfied and that the Individual demonstrated that he had resolved the security concerns arising under Guideline F. (OHA Case No . PSH-24-0097, Fishman)

Access Authorization; Guideline H

On August 14, 2024, an Administrative Judge (AJ) determined that an Individual's access authorization should not be restored under 10 C.F.R. Part 710. The DOE Local Security Office (LSO) suspended the Individual's security clearance after the Individual tested positive for marijuana during a random drug screening. At the conclusion of the hearing, the AJ determined that the LSO appropriately invoked the Bond Amendment and Guideline H. The AJ also determined that the Individual had brought forth sufficient evidence to demonstrate that the Bond Amendment does not apply to these circumstances but failed to resolve the Guideline H security concerns. Accordingly, the AJ concluded that the Individual's access authorization should not be restored. (OHA Case No. PSH-24-0083, Thompson III)

Access Authorization Not Restored; Guideline E (Personal Conduct); Guideline G (Alcohol Consumption)

On August 15, 2024, an Administrative Judge determined that an individual's access authorization under 10 C.F.R. Part 710 should not be restored. The Individual is employed by a DOE contractor in a position that requires him to hold a security clearance. As part of the Continuing Evaluation process for security clearance holders, the DOE learned that in April 2022, the Individual had been arrested for an alcohol related incident. In response to a Letter of Interrogatory, the Individual provided documentation indicating that he had been diagnosed with an alcohol use disorder in July 2022. The Individual underwent a psychological assessment with a DOE consultant psychologist (DOE Psychologist) who concluded that the Individual met the criteria for an alcohol use disorder. At the hearing, the Individual testified that he had been abstinent from alcohol for approximately three months, and he admitted that he had not been honest with the DOE Psychologist regarding his alcohol consumption. The DOE Psychologist testified that the Individual had not yet established adequate evidence of rehabilitation or reformation regarding the alcohol use disorder. Ultimately, the Administrative Judge determined that the Individual had failed to mitigate the Guideline E and Guideline G security concerns, and she concluded that the Individual's access authorization should not be restored. (OHA Case No. PSH-24-0133, Quintana)

Access Authorization Not Restored; Guideline G (Alcohol Consumption)

On August 16, 2024, an Administrative Judge determined that the Individual's access authorization should not be restored under 10 C.F.R. Part 710. The Individual is employed by a DOE Contractor in a position that requires him to hold a security clearance. In October 2023, the Individual tested positive for alcohol on a random breath alcohol test while at work. The Individual was subsequently evaluated by a DOE consultant psychologist, who diagnosed the Individual with Alcohol Use Disorder, Moderate and concluded that he habitually consumes alcohol. At the hearing, although the Individual presented evidence showing that he had completed an alcohol treatment program, was participating in aftercare, and had recently started individual counseling, he had not been abstinent for twelve months, as the DOE Psychologist recommended. The DOE Psychologist could not conclude that the Individual had shown adequate evidence of rehabilitation or reformation. The Administrative Judge found that the Individual had not mitigated the Guideline G security concerns. Accordingly, she concluded that the Individual's access authorization should not be restored. (OHA Case No. PSH-24­-0104, Balzon)