Summary of Decisions - January 31, 2022 - February 04, 2022

Personnel Security Hearing (PSH)

Clearance Granted, Guideline F

On January 31, 2022, an OHA Administrative Judge (AJ) issued a decision in which she determined that an Individual's DOE access authorization should be granted. To support the Guideline F security concerns, the LSO relied upon the fact the Individual has five outstanding collection accounts totaling

$10,648; the Individual has three unpaid charge-off accounts totaling $71,984; the Individual has three repossession accounts totaling $311,777; the Individual has a November 2014 court-ordered judgment against him for $1.3 million owed to his ex-wife for nonpayment of his marital settlement agreement, and he admitted in his Letter of Interrogatory (LOI) dated April 2020 that he will never have the ability to pay the debt; the Individual owes $ 40,000 in an unpaid court-ordered judgment for business debts related to his company; and the Individual admitted that he owes $ 13,000 for delinquent child support payments. Ex. 1 at 5-6. The SSC also cited the following information:   in 2016, the Internal Revenue Service (IRS) filed a lien against the Individual for an unknown amount of money not exceeding $1 million for unpaid taxes; the Individual owes a total of approximately $ 500, 000 to the IRS for unpaid payroll taxes for tax years   2014, 2015, 2016, and 2017; the Individual owes $9,013.55 to the IRS for unpaid personal income taxes for tax year 2018; the Individual owes approximately $298,000 to the state tax authority (the State) for business taxes for tax years 2014, 2015, 2016, and 2017; the Individual owes $4,200 to the State for unpaid personal income taxes for tax year 2018; and the Individual admitted in August 2019, that he moved to another state to avoid repaying his debts.

The Individual presented evidence that he had resolved his financial difficulties. He testified that most of his outstanding debts were involved in the bankruptcy of his company. He has a payment plan with the IRA for his outstanding debt. The Individual's personal bankruptcy   has   consolidated   the remainder of his debts, including his state tax obligations.   He has been working toward becoming debt free.   In addition, the Individual and his wife have been implementing strategies recommended by a debt management program, including driving older, used vehicles and renting a house from relative instead of paying a mortgage. Further, the Individual provided evidence that the Individual and his wife are living within their means, meeting their financial obligations, and maintaining a sufficient monthly surplus that is conducive to achieving their goal of becoming debt free. Therefore, the AJ determined that the Individual's security clearance should be granted. (OHA Case No. PSH-21-0102, Fishman)

Access Authorization Not Restored; Guideline G (Alcohol Consumption)

On February 2, 2022, an Administrative Judge determined that an individual's access authorization under 10 C.F.R. Part 710 should be not restored. The Individual is employed by a DOE contractor in a position that requires her to hold a DOE security clearance. In September 2020, the Individual was arrested and charged with Simple Assault. The Individual admitted to consuming alcohol prior to this incident. As a result of this incident, the Individual was evaluated by a DOE consultant psychologist (Psychologist) in March 2021. The Psychologist diagnosed her with Alcohol Use Disorder, Moderate, and determined that the Individual had not demonstrated adequate evidence of rehabilitation or reformation. At the hearing, the Individual testified that she did not believe that she had an alcohol use disorder, and aside from undergoing breathalyzer testing, did not follow any of the Psychologist's recommendations for rehabilitation or reformation. The hearing testimony also made clear that the Individual had repeatedly misrepresented her alcohol consumption. After hearing the Individual's testimony, the Psychologist opined that the Individual had not demonstrated adequate evidence of rehabilitation and reformation from the Alcohol Use Disorder, Moderate.   After   considering   the evidence in the record and testimony presented at the hearing, the Administrative Judge determined that the Individual had not resolved the security concerns associated with Guideline G. Accordingly, she concluded that the Individual's access authorization should be not restored. (OHA Case No. PSH-21-0121, Quintana)

Access Authorization Not Restored; Guideline E (Personal Conduct); and Guideline K (Handling Protected Information)

On February 3, 2022, an Administrative Judge (AJ) determined that an Individual's   access authorization should not be restored under 10 C.F.R. Part 710. The Individual is an employee of a DOE contractor in a position that requires the possession of a security clearance. In early 2020, the DOE Local Security Office (LSO) was notified that the Individual had been placed on Site Access Restriction (SAR) after failing to follow policy and procedures, and she was later terminated for failure to cooperate with a related investigation. While the Individual's employer ultimately rehired her after an arbitration decision recommended suspension in lieu of termination, the LSO informed the Individual that it possessed reliable information that created substantial doubt regarding   her   eligibility   to possess a security clearance.

At the conclusion of the hearing, the AJ determined that the LSO appropriately invoked Guidelines E and K because the LSO cited that the Individual had (1) introduced her personally owned cellular phone into a limited area, (2) used her phone to exchange a series of inappropriate text messages with two other employees, (3) used her personal phone on duty, (4) refused to provide requested information during a company investigation, and (5) failed to report, as required, another employee's violation of their employer's rules regarding inappropriate text messages and use of a company provided phone. The AJ also determined that the Individual failed to resolve the security concerns for the following reasons. As to Guideline E, the AJ found that the conduct was not minor because there was evidence that the Individual deliberately refused to cooperate several times during a security investigation and violated the rules governing personal cellphone use and security on several occasions; her conduct was not infrequent because her employer's investigation uncovered several instances of prohibited conduct within a short period, and it prompted her to immediately engage in additional concerning conduct by refusing to provide a material fact during the security investigation; her conduct was not unique; and the her conduct was not mitigated by the passage of time. The AJ also concluded that, while the Individual had undergone remedial security training and she had not violated any additional security rules since her return from SAR, these actions were not sufficient to overcome the evidence in support of the AJ's concern regarding her judgment, reliability, and trustworthiness.

As to Guideline K, the AJ remained skeptical that the Individual was unclear regarding her ability to use her personal cellphone in the limited area and concluded that the passage of time, the frequency of her rule violations, and the circumstances surrounding her conduct did not resolve the security concerns. The AJ also found that the Individual had not resolved the concerns based on her recent remedial security training nor her alleged misunderstanding of the rules surrounding personal cellphone use. I therefore remain concerned regarding the Individual's trustworthiness, judgment, reliability, and willingness and ability to safeguard protected information.

Accordingly, the AJ concluded that the Individual had not resolved the Guideline E and K security concerns. (OHA Case No. PSH-21-0116, Thompson III)

Access Authorization Restored; Guideline G (Alcohol Consumption)

On February 3, 2022, an Administrative Judge determined that the Individual's access authorization under 10 C.F.R. Part 710 should be restored. The Individual is employed as a DOE contractor in a position that requires him to hold a DOE security clearance. During a reinvestigation, the Individual reported that he had been arrested for Driving Under the Influence (DUI). The Individual then submitted responses to a Letter of Interrogatory (LOI) concerning his alcohol consumption. Subsequently, he was referred to a DOE-contractor psychologist for an examination. The DOE Psychologist concluded that the Individual habitually and excessively consumes alcohol to the point of experiencing impaired judgment, and has not shown adequate evidence of rehabilitation or reformation. In a Notification Letter, the LSO as Guideline G derogatory information the findings of DOE Psychologist's report and the Individual's November 1998 DUI arrest.

At the hearing, the Individual presented testimony from his therapist concerning the Individual's participation in a treatment program, as well as documentary evidence of negative blood and urine tests for the presence of alcohol from the period June through November 2021. The Individual testified as to his efforts to ensure his treatment program met the requirements listed in the   DOE Psychiatrist's report. The Individual also testified that he had stopped consuming alcohol April 2021 and that he had built a strong support system to assist him with his sobriety.   The   DOE Psychologist, after listening to all the evidence revised his opinion and testified that, because of the Individual's efforts at rehabilitation, he did not believe there were any issues regarding the Individual's judgment and reliability.

Based on the testimony of all witnesses and the evidence submitted, the Administrative Judge concluded found the Guideline G security concerns had been resolved and that the Individual's access authorization should be restored. (OHA Case No. PSH-21-0123, Cronin)

Access Authorization Not Restored; Guideline G (Alcohol Consumption)

On February 3, 2022, an Administrative Judge determined that an individual's access authorization under 10 C.F.R. Part 710 should not be restored. The Individual had been arrested and charged with Driving Under the Influence of Alcohol (DUI) in 2019 and in 2021 a DOE Contractor Psychologist diagnosed the Individual with Alcohol Use Disorder-Moderate.

During the hearing, the Individual testified that he was still consuming alcohol and had not followed any of the Psychologist's recommendations because he disagreed with the amount of alcohol her report stated he likely consumed. He testified that he consumed alcohol in moderation and that his DUI was just a mistake. The Psychologist testified that her diagnosis could potentially be increased to Alcohol Use Disorder-Severe as of the hearing date. The Administrative Judge determined that the Individual had not resolved the security concern associated with Guideline G. Accordingly, she concluded that the Individual's access authorization should not be restored. (OHA Case No. PSH-22-0004, Martin)

Access Authorization Restored; Guideline E (Personal Conduct) and Guideline H Drug Involvement)

On February 4, 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 her to hold a security clearance. The Local Security Office (LSO) received potentially derogatory information regarding the Individual's personal conduct and drug use. The Individual signed and submitted a Questionnaire for National Security Positions (QNSP), in which she answered questions pertaining to her prior drug use. She indicated that she had consumed an ex-partner's prescription medication and an illicit substance. She failed to self-report the use of the aforementioned substances prior to submitting the QNSP.

At the hearing, the Individual and five other witnesses testified, including the Individual's expert. The evidence in the record revealed that at the time the Individual consumed the controlled substances, she was in a physically and verbally abusive relationship. Accordingly, her judgement had been clouded. As a result of the duress and abuse she faced at the hands of her former partner, the Individual behaved in an uncharacteristic manner. She ultimately separated and discontinued contact with her former partner in 2017. The Individual's expert opined that the Individual's judgement is now intact and that she has learned from the experience. In separating from her former partner, she removed herself from the circumstances that negatively affected her judgement, and thus, eliminated her vulnerability to exploitation, duress, or manipulation. Further, her association with her former partner, a person who routinely used controlled substances, has ceased. Accordingly, the Individual had mitigated Guideline E concerns pursuant to mitigating factors 17(e) and (g). Further, as the credible evidence indicated that the Individual had not used any controlled substances since 2017, the Individual had mitigated the Guideline H concerns pursuant to mitigating factor 26(a).

Accordingly, the Individual was able to demonstrate that she had fully resolved the security concerns arising under Guidelines E and H. OHA Case No. PSH-21-0117, Jenkins-Chapman)

Access Authorization Restored; Guideline I (Psychological Conditions)

On February 4, 2022, an Administrative Judge (AJ) determined that an Individual's   access authorization should be restored under 10 C.F.R. Part 710. The Individual is an employee of a DOE contractor in a position that requires the possession of a security clearance. In 2020, the Individual submitted an incident report that disclosed his recent hospitalization for mental health concerns. The DOE Local Security Office (LSO) conducted an investigation and requested that the Individual be evaluated by a DOE-consultant psychologist ("Psychologist"). Subsequently, the LSO informed the Individual that it possessed reliable information that created substantial doubt regarding his eligibility to possess a security clearance.

At the conclusion of the hearing, the AJ determined that the LSO appropriately invoked Guideline I because the Psychologist concluded that the Individual met the criteria   for   Major   Depressive Disorder, Moderate, Single Episode. The AJ also determined that the Individual had resolved the security concerns for the following reasons. First, the Individual's therapist ("Therapist") and Psychologist established that the Individual's psychological condition is readily controllable with treatment, there was ample evidence that the Individual had consistently complied with the treatment recommendations of both the Therapist and his psychiatrist, and he has   successfully   utilized treatment and coping skills to significantly improve his condition. Second, the   record   demonstrated that the Individual voluntarily entered a counseling and treatment program consistent with the Psychologist's recommendations, and both the Therapist and Psychologist gave the Individual a positive prognosis. Third, the preceding findings, coupled with the Psychologist's   conclusion, established that the Individual's condition had a low probability of recurrence.

Accordingly, the AJ concluded that the Individual had resolved the Guideline I security concerns. (OHA Case No PSH-21-0122, Thompson III)

FOIA Appeal (FIA)

FOIA Appeal; Appeal Granted in Part and Denied in Part; Adequacy of Search, Exemption 5

On February 4, 2022, the Office of Hearings and Appeals (OHA) granted in part and denied in part a Privacy Act and Freedom of Information Act (FOIA) appeal filed on behalf of Simon Edelman (Appellant) concerning a request made to the Department of Energy's (DOE) Office of Inspector General (OIG) for records related to a complaint of retaliation that Appellant made to OIG in 2018. OIG identified fifty-one documents responsive to Appellant's request. On appeal, Appellant alleged that OIG had not conducted an adequate search for responsive records because records provided to him in OIG's response implied the existence of other responsive records. Additionally, Appellant asserted that OIG had improperly redacted the opinion of a DOE attorney with whom OIG had consulted concerning one of the allegations he made in his complaint to OIG pursuant to Exemption 5 of the FOIA. OHA determined that the redacted material was exempt from disclosure under the deliberative process privilege of Exemption 5 of the FOIA, but that OIG had not conducted an adequate search for records responsive to Appellant's request. Therefore, OHA granted Appellant's appeal as to the adequacy of OIG's search, denied the appeal in all other respects, and remanded the matter to OIG to conduct an additional search. (OHA Case No. FIA-22-0004/ PAA-22-0002, Harmonick)