FOIA Appeal (FIA)

FOIA Appeal; Denied; Expedited Processing

On September 2, 2022, the Office of Hearings and Appeals (OHA) denied a Freedom of Information ( FOIA) appeal filed by Andrea Woodruff (Appellant) from an interim response issued by the Department of Energy's (DOE) Office of Science (SC). The Appellant challenged the DOE SC's denial of expedited processing of the Appellant's request. OHA found the Appellant did not establish a compelling need for the records. The Appellant did not identify a specific threat to her, or anyone else's, life or physical safety, that was imminent and could reasonably be expected to occur if the requested records were not provided on an expedited basis. Consequently, the Appellant's appeal was denied. (OHA Case No. FIA-22-0026).

Personnel Security Hearing (PSH)

Access Authorization Restored; Guidelines G (Alcohol Use) and J (Criminal Conduct)

On August 29, 2022, an Administrative Judge determined that the Individual's access authorization should 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 derogatory information regarding the Individual's alcohol use and criminal conduct. Regarding Guideline G, the LSO cited his diagnosis by a DOE Psychiatrist of Alcohol Use Disorder, Moderate, in early remission, and his two alcohol related incidents. Regarding Guideline J, the LSO cited his alcohol-related arrest. The Judge found that the Individual has mitigated the Guideline G concerns regarding his alcohol use. The Individual testified that he has been abstinent since his alcohol -related arrest. He has voluntarily submitted to phosphatidylethanol (PEth) testing since April of 2021 and underwent random alcohol and drug tests in December 2021 and three times in February 2022. He attended an intensive outpatient program and is currently enrolled in a regular outpatient program, which includes one-on-one counseling. The Individual is attending Alcoholics Anonymous. The DOE Psychiatrist opined that the Individual "is showing rehabilitation efforts that I requested - or recommended, I should say, in the evaluation."  Based on the facts, the Judge found that the Individual met the mitigating conditions set forth under Guideline G.  Regarding the Guideline J concerns, since that behavior was a direct result of his maladaptive alcohol use, the Judge found that the Individual mitigated the Guideline J concerns as well. Accordingly, the Individual was able to demonstrate that he had resolved the security concerns arising under Guidelines G and J. ( OHA Case No. PSH-22-0085, Fishman)

Access Authorization Not Granted; Guideline E (Personal Conduct); Guideline G ( Alcohol Consumption); Guideline I (Psychological Conditions)

On August 30, 2022, an Administrative Jude 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 regarding the Individual's alcohol consumption, personal conduct, and psychological condition. Regarding the Guideline E concerns, the LSO alleged that during the psychological evaluation on January 13, 2022, the Individual indicated that he had last consumed alcohol in September 2021. However, the (Phosphatidylethanol) PEth test results were "positive at a level of 737 ng/mL[,]" indicating "heavy alcohol use and confirmed evidence of regular, heavy drinking in the last three weeks before the test." The LSO also alleged that in the November 5, 2021, LOI, the Individual indicated that he last drank alcohol in January 2021, but he admitted during the psychological evaluation that he consumed alcohol in April or May 2021 and September 2021. With respect to Guideline G, the LSO alleged that: 1) the DOE Psychologist diagnosed the Individual with AUD, Severe, and without evidence of rehabilitation or reformation; 2) the Individual submitted to a PEth test in conjunction with the psychological evaluation, the results of which indicated "heavy alcohol use and confirmed evidence of regular, heavy drinking in the last three weeks [;]" and 3) the Individual was terminated from prior employment in October 2019 because he did not submit to a drug test, and "admitted that he had consumed two beers before his shift[.]" With respect to Guideline I, the LSO alleged that the DOE Psychologist determined that the Individual "has difficulty with tolerating shame about his lack of control over drinking which leads him to minimize and be less than forthcoming about his behavior." Further, the DOE Psychologist determined this behavior "calls into question his judgement, reliability, and trustworthiness."

At the hearing, the Individual, his girlfriend, and the DOE Psychologist testified. The evidence in the record established that the Individual had received treatment for his alcohol consumption on three different occasions from approximately April 2019 to August 2020 and participated in Alcoholics Anonymous (AA) meetings approximately once a month. The Individual attributed his alcohol consumption to life-altering stressors, and he began consuming alcohol again in December 2020. The Individual stated in his November 2021 LOI that he last consumed alcohol in January 2021, but during his January 2022 psychological evaluation, he stated that he had also consumed alcohol in either April or May 2021 and again in September 2021. The DOE Psychologist diagnosed the Individual with Alcohol Use Disorder (AUD), Severe, and opined that the Individual had not shown adequate evidence of rehabilitation or reformation. She also opined in her January 28, 2022, Psychological Assessment ( report), that the Individual experiences "difficulty tolerating shame about his lack of control over drinking" which "leads him to minimize and be less than forthcoming about his behavior." The Individual's failure to be completely forthcoming "calls into question his judgement, reliability, and trustworthiness."

The Individual testified that he had been abstinent from alcohol since late May 2022, that he began attending AA meetings on a weekly basis in late June 2022, and that he was working on step 3 of the "twelve steps" with his sponsor. The Individual had also secured the services of a therapist and had attended two introductory sessions of therapy. The Individual voluntarily submitted to two PEth tests, one in late June 2022 and one in late July 2022. The June test was positive, but the July test was negative. He also indicated that he is able to identify his triggers and that he is able to cope with them using his support system and meditation. The Individual also admitted that he had been attempting to hide the amount of alcohol he was drinking from investigators but stated that his current statements regarding his alcohol consumption could be trusted. At the hearing, the DOE Psychologist opined that the Individual had not shown adequate evidence of rehabilitation or reformation. Further, she still held the opinion that the Individual continued to exhibit an emotional, mental, or personality condition (namely, his difficulty tolerating shame regarding his alcohol consumption) which could impair his reliability or judgement.

Regarding Guideline E, the record lacked any indication that the Individual attempted to correct the misrepresentations in question prior to being confronted with them. Further, the Individual's misrepresentations were in the context of the current investigation and pertained to the very matter that posed some concern to the LSO, the Individual's alcohol consumption. The record was bereft of any indication that the stressors or circumstances that caused the misrepresentations had been eliminated by the therapy sessions, and further, there was no evidence that the therapy sessions had reduced or eliminated vulnerability to exploitation, manipulation, or duress. Accordingly, the Administrative Judge could not conclude that the Individual had mitigated the stated Guideline E concerns.

Regarding Guideline G, the Individual had not remained sober for three to six months, he had a previous history of treatment and relapse, the DOE Psychologist did not see adequate evidence of rehabilitation or reformation, and he had not shown a clear and established pattern of abstinence . Further, there was no indication that the Individual had been making satisfactory progress with his therapist. Accordingly, the Administrative Judge could not conclude that the Individual had mitigated the Guideline G concerns.

Regarding the Guideline E concerns, although the Individual had secured the services of a therapist, there was no indication which specific behavior, other than the Individual's maladaptive alcohol consumption, the therapy intended to address. Further, the Individual had attended only two sessions at the time of the hearing, and the record was bereft of any evidence that the Individual was complying with the treatment plan or that his prognosis was good. the DOE Psychologist also testified she still held the opinion that the Individual continued to exhibit an emotional, mental, or personality condition that could impair his reliability or judgement. There was no competent evidence in the record that indicated a recent opinion by a qualified mental health professional that suggests the condition was in remission or no longer existed. Additionally, there was no evidence in the record, from a mental health professional or otherwise, that indicated the Individual's shame "about his lack of control over drinking" and the resulting "less than forthcoming" behavior regarding his alcohol use was temporary or has since been resolved. Accordingly, the Administrative Judge could not conclude that the Individual had mitigated the Guideline E concerns. (OHA Case No. PSH-22-0089, Rahimzadeh)

Whistleblower Hearing (WBH)

Initial Agency Decision Granting Motion for Summary Judgment

On September 1, 2022, an Administrative Judge (AJ) issued an Initial Agency Decision under 10 C.F.

R. Part 708 granting a Motion for Summary Judgment filed by a DOE Contractor.  The AJ found that the Contractor had shown that no genuine issue of material fact existed concerning the question of whether the Contractor had met its burden of proving that it would have issued written guidance to the complainant for her attendance issues, regardless of the fact that the Employee had previously filed a Complaint against the Contractor under Part 708.

In its Motion, the Contractor contended that it issued the second CA to the Employee to address her attendance and tardiness issues, and that the Employee had admitted that fact by failing to respond to a request for admission asking:  "Admit that [the written guidance] was issued to address attendance and tardiness issues, of which, you had already been coached and mentored about." The AJ agreed with the Contractor finding that while he was not bound by the Federal Rules of Civil Procedure, the rule established by Rule 36 was an appropriate one in the context of the proceeding, noting that the Part 708 regulations recognize that discovery is an important component of meaningful administrative proceedings and due process. Accordingly, he found, Part 708 provides Administrative Judges with the discretion to order discovery at the request of a party, based on a showing that the requested discovery is designed to produce evidence regarding a matter, not privileged, that is relevant to the subject matter of the complaint. He noted that Part specifically permits the use of requests for admission, and that the discovery process would be rendered meaningless if parties were not required to respond to appropriate requests, without showing that there existed a good reason for failing to respond. The AJ further stated that without appropriate and meaningful consequences for a parties' failure to respond to a request for admission, there would be no point in allowing for their use . Accordingly, the AJ found that it was appropriate and fair that the precedent of Rule 36 be followed and that the Employee's failure to admit, deny, or object to the request for admission constitutes an admission which conclusively establishes that the written guidance was issued to the Employee to address her attendance and tardiness issues, and that she had been previously coached and mentored for those same issues.

The AJ further found that the record showed that the Contractor was contemplating disciplinary action against the Employee prior to her filing of the Complaint, and that the record contained clear and convincing evidence that the Contractor would have issued the written guidance to Employee in the absence of her protected conduct (the filing of her Part 708 Complaint). (OHA Case No. WBH-22-0002, Fine)