Summary of Decisions - January 15, 2024 - January 26, 2024

FOIA Appeal (FIA)  

On November 17, 2023, the Office of Hearings and Appeals (OHA) granted a Freedom of Information ( FOIA) appeal filed by The Brennan Center for Justice (Appellant) from a determination letter issued by the Department of Energy's (DOE) Office of Public Information. The Appellant sought records related to Presidential Emergency Action Documents (PEADs) that may be invoked in the event an emergency. The Appellant challenged the adequacy of DOE's search. Upon review, OHA was unable to determine if the search methods used by two DOE offices were likely to uncover responsive records and remanded the request so a new search could be conducted. Accordingly, the Appellant's appeal was granted. (OHA Case No. FIA-24-0007)

Personnel Security Hearing (PSH)

Access Authorization Not Restored; Guideline E (Personal Conduct), Guideline H ( Drug Involvement and Substance Misuse), Guideline F (Financial Considerations), Guideline J ( Criminal Conduct)

On January 26, 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. The Local Security Office (LSO) received potentially derogatory information regarding the Individual's personal conduct, financial state, drug involvement, and criminal conduct. Regarding the Guideline E allegations, the LSO alleged that the Individual omitted information pertaining to crimes with which he had been charged from the 2022 Questionnaire for National Security Positions, and that he failed to report the charges in a timely manner. The LSO also alleged under Guideline E that the Individual deliberately falsified information during an interview with an investigator. Under Guidelines H and J, the LSO alleged that the Individual had been charged with a number of criminal offenses, which included drug-related offenses. Lastly, the LSO alleged that the Individual failed to file his federal income taxes for tax year 2019. The Individual testified on his own behalf at the hearing, frequently indicating that he simply could not remember pertinent information, and that the confusion surrounding his circumstances caused his failure to report the crimes with which he had been charged. The Individual denied any drug involvement. The Administrative Judge did not find the Individual to be a credible witness, and further, the Individual did not provide evidence to corroborate his testimony. Additionally, although the Individual provided copies of his income tax filings for tax year 2019, the Individual did not provide evidence that the necessary tax authorities were in receipt of the documents or that he had satisfied his outstanding tax obligations. Therefore, the Individual failed to mitigate the stated concerns. ( OHA Case No. PSH-23-0138, Rahimzadeh)

Access Authorization Granted; Guideline F (Financial Considerations)

On January 26, 2024, an Administrative Judge determined that an Individual should be granted an access authorization under 10 C.F.R. Part 710. The Individual's employer submitted a request to the local security office (LSO) for the Individual to be granted a security clearance. The LSO subsequently initiated a background investigation on the Individual to determine his fitness to hold a security clearance. The investigation revealed that the Individual had failed to file a federal tax return for 2022 and had three unpaid medical collection accounts totaling $9,455 which resulted from a unexpected visit to a hospital for treatment.

The Individual presented convincing evidence that after being contacted by DOE he submitted his 2022 Federal tax return and received a refund. He also provided testimony that he had paid a number of hospital bills but had not known about the three accounts in collections. The Individual immediately paid off two of the accounts and set up a payment plan for the remaining account for which he has begun payments. The Individual also submitted documentary evidence confirming his testimony concerning the filing of his 2022 Federal Tax return and his progress in resolving the three collection accounts. Additionally, the Individual provided documentation concerning his monthly expenses and the amount of money that he has available at the end of the month. . After considering all of the testimony and exhibits, the Administrative Judge found the Guideline F security concern had been resolved. Consequently, the Administrative Judge found that Individual's access authorization should be granted.(OHA Case No. PSH-24-0005, Cronin)

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

On January 17, 2024, an Administrative Judge determined that the Individual's access authorization should be restored under 10 C.F.R. Part 710. In March 2021, the Individual completed a Questionnaire for National Security Positions (QNSP), in which he admitted that he was charged with Driving Under the Influence (DUI) in October 2017. The Local Security Office (LSO) sent the Individual a Letter of Interrogatory (LOI) in September 2021, requesting information regarding the Individual's alcohol consumption. In February 2023, the Individual was again charged with DUI. The Individual responded to a second LOI in April 2023, indicating that he consumed approximately four to five drinks prior to the DUI. The LSO asked that a DOE-consulting Psychologist (DOE Psychologist) evaluate the Individual. The DOE Psychologist determined that the Individual binge consumed alcohol in February 2023. At the hearing, the Individual testified that he consumed alcohol on the evening of February 9, 2023, which was the first time he had consumed alcohol since April 2020. At the hearing, the Individual claimed that, around the time of this relapse, he was feeling stress from the birth of his son three months earlier and was not attending AA as frequently as he had before. He clarified that he was distancing himself from AA because he believed he should be focusing on his family. The Individual testified that his partner, who had been sober for five years at the time of the hearing, and son were out of town the night he consumed the alcohol.

At the hearing, the Individual presented a compelling letter from his partner as well as his PEth test results and evidence that he had been attending a sobriety group supplied by his medical provider. In addition, his Alcoholics Anonymous (AA) sponsor testified that he would not be testifying if the Individual was not committed to his sobriety. The DOE Psychologist testified that the Individual exceeded her recommendations. She also noted that, although she recommended twelve months of abstinence from the February 2023 DUI, and he only had 10 months at the time of the hearing, an additional two months of sobriety would not change her mind substantially. She concluded that she believed that he has sufficiently demonstrated his rehabilitation and reformation. The Administrative Judge was convinced that he had mitigated the concerns raised by his alcohol consumption and since all his criminal conduct was related to his alcohol consumption, it was likewise mitigated . Accordingly, the Individual was able to demonstrate that he had resolved the security concerns arising under Guidelines G and J. (OHA Case No. PSH-23-0137, Fishman)

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

On January 18, 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 her to hold a security clearance. The Local Security Office (LSO) received potentially derogatory information regarding the Individual's alcohol consumption and criminal conduct . The LSO alleged that the DOE Psychologist diagnosed the Individual with Unspecified Alcohol ­Related Disorder, that the results of the PEth test that was administered indicated heavy alcohol consumption, and the DOE Psychologist concluded that the Individual was binging or drinking significant amounts of alcohol habitually to the point of impaired judgment, reliability, and trustworthiness. The LSO also alleged that the Individual was arrested and charged with DUI in October 2022, Suspicion DUI in January 2020, and that she pleaded guilty to Reckless Driving following her arrest in January 2020.

The Individual had not completed any of the recommendations made by the DOE Psychologist and continued to consume alcohol. The DOE Psychologist testified that his assessment of the Individual remained the same from the time he first evaluated her. Although the Individual alleged that she had been drugged on the day of the October 2022 incident, there was no evidence she was forced or pressured into committing the aforementioned crimes. Further, there was no reason to doubt that he Individual committed the stated offenses, and there was no indication in the record that the Individual had engaged in behavior that was tantamount to rehabilitation, as she continues to engage in the behavior that resulted in the alcohol-related charges. The Individual failed to mitigate the stated concerns. (OHA Case No. PSH-23-0142, Rahimzadeh)

Personnel Security; Access Authorization Not Restored; Guideline G (Alcohol Consumption)

On January 19, 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 because a DOE-consultant psychologist diagnosed her with Alcohol Use Disorder, severe. At the hearing, the Individual testified that she did not attend alcohol treatment or AA meetings as recommended by the Psychologist because she did not feel like she had a problem with alcohol. She also reported that she had consumed alcohol recently on one occasion. The AJ found that the Individual had not mitigated the Guideline G concerns and, accordingly, concluded that the Individual's access authorization should not be restored .(OHA Case No. PSH-23-0122, Martin)

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

On January 16, 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 her to hold a security clearance. In late January 2023, the Individual was arrested and charged with Aggravated Driving While Intoxicated (DWI) and Open Container. In May 2023, the Individual was evaluated by a DOE consultant psychologist (DOE Psychologist) who diagnosed the Individual with Alcohol Use Disorder (AUD), Moderate, in Early Remission and opined that the Individual had not shown adequate evidence of rehabilitation or reformation. At the hearing, the Individual explained the circumstances surrounding the January 2023 DWI, and she testified that she had been abstinent from alcohol since February 15, 2023. The Individual also testified that she had been participating in weekly counseling sessions with her personal counselor. The DOE Psychologist testified that the Individual had not yet established adequate evidence of rehabilitation or reformation of the AUD. Ultimately, the Administrative Judge determined that the Individual had not mitigated the Guideline G and Guideline J security concerns, and she concluded that the Individual's access authorization should not be restored. (OHA Case No. PSH-23-0121, Quintana)

Access Authorization Restored; Guideline H (Drug Involvement) and Bond Amendment

On January 16, 2024, an Administrative Judge determined that an Individual's access authorization under 10 C.F.R. Part 710 should be restored. The Individual is employed at a DOE facility in a position that requires her to hold a security clearance. On March 13, 2023, the Individual was selected for a random drug test, which resulted in a positive result for marijuana metabolites ( hereinafter referred to as "marijuana").

The Individual presented convincing evidence that her one and only time of illegal drug use resulted from her ingestion on the night prior to the test of a delta-9-tetrahydrocannabinol (THC) containing gummy for sleep that someone at a dinner gave her. She consumed the gummy because she had run out of her melatonin containing gummy and the fact that she did not read the ingredient list in the THC gummy. None of the other drug tests the Individual underwent before or after the positive drug test in March 2023 indicated any other use of illegal drugs.

The Administrative Judge found that the Individual's testimony concerning the events leading to her one-time ingestion of THC was convincing. Further the available negative test results from the DOE facility supported a conclusion that this was a one-time inadvertent use of THC. In her 22 years of employment there is no evidence before me of illegal drug use other than the March 2023 positive drug test. Consequently, given the circumstances of her use involving a THC gummy for sleep, I find that her use happened under such circumstances that further THC use was unlikely to reoccur, and that the Individual had mitigated the Guideline H concern.

With regard to the Bond Amendment, since the Individual's prior THC use does not cause her to meet the definition of either an "unlawful user" or "addict" of a controlled substance under DOE Order 472.2 A, the Administrative Judge concluded that the Bond Amendment does not prohibit the Individual's from possessing a security clearance. . In sum, the Administrative Judge found the Guideline H security concern had been resolved and that the Bond Amendment did not preclude the Individual from possessing a security clearance . Consequently, the Administrative Judge found that Individual's access authorization should be restored. (OHA Case No. PSH-23-0130, Cronin)

Access Authorization Not Restored; Guideline G (Alcohol Consumption)

On January 16, 2024, an Administrative Judge determined that an Individual's access authorization should not be restored under 10 C.F.R. Part 710. In March 2023, the Individual disclosed that he was attending Alcoholics Anonymous meetings in an effort to stop consuming alcohol. The Individual met with a DOE-contracted psychologist (DOE Psychologist) for a psychological evaluation, following which the DOE Psychologist issued a report in which she opined 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, Severe. The DOE Psychologist recommended that the Individual undergo alcohol-related treatment and abstain from alcohol for twelve months. At the hearing, the Individual testified that he had received some of the treatment recommended by the DOE Psychologist and had abstained from alcohol for about five months. He did not provide any evidence to corroborate his claims. As the Individual had not fully complied with the DOE Psychologist's recommendations, and had not provided evidence to substantiate the treatment and abstinence from alcohol that he claimed, the Administrative Judge determined that the Individual had not resolved the security concerns asserted by the local security office under Guideline G. Therefore, the Administrative Judge determined that the Individual's access authorization should not be restored. (OHA Case No. PSH-24-0004, Harmonick)

Access Authorization Not Restored; Bond Amendment; Guideline E (Personal Conduct); Guideline H (Drug Involvement and Substance Misuse); Guideline I (Psychological Conditions)

On January 16, 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 it discovered that she had been hospitalized for mental health treatment and that she had failed to disclose that she tested positive for marijuana use while holding a security clearance.

At the conclusion of the hearing, the AJ determined that the LSO appropriately invoked the Bond Amendment and Guidelines E, H, and I. The AJ also determined that while the Individual put forth sufficient evidence to resolve the Bond Amendment and the Guideline H and I concerns, she did not resolve the Guideline E concerns. Because the concerns remained unresolved, the AJ concluded that the Individual's access authorization should not be restored. (OHA Case No. PSH-23-0139, Thompson III)