Summary of Decisions - October 24, 2022 - October 28, 2022

Personnel Security Hearing (PSH)

Access Authorization Not Granted; Guideline G (Alcohol Consumption)

On October 24, 2022, an Administrative Judge (AJ) determined that an Individual should not be granted access authorization under 10 C.F.R. Part 710. The DOE Local Security Office (LSO) discovered concerning information regarding the Individual's alcohol consumption. As a result of the information provided, the LSO instructed the Individual to undergo a psychiatric evaluation conducted by a DOE-consultant Psychiatrist (Psychiatrist). Subsequently, the LSO informed the Individual that it possessed reliable information that created substantial doubt regarding his eligibility to possess a security clearance because the derogatory information raised security concerns under Guideline G of the Adjudicative Guidelines.

At the conclusion of the hearing, the AJ determined that the LSO appropriately invoked Guideline G by citing the following. That the Psychiatrist concluded in his January 2022 report that the Individual met the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), criteria for Alcohol Use Disorder (AUD), Mild, without adequate evidence of rehabilitation or reformation, and the Psychiatrist reported that the Individual's Phosphatidylethanol (PEth) test results were congruent with current heavy alcohol consumption. The Individual admitted in his November 2021 signed letter of interrogatory (LOI) that he had been consuming four to five alcohol beverages most days. Id. In 2008, the Individual was arrested and charged with Simple Assault/Domestic Violence and False Imprisonment, and he admitted to consuming alcohol prior to the arrest. Id. And, in 2005, the Individual was arrested and charged with Disorderly Conduct and admitted that he had consumed alcohol prior to this arrest

The AJ also concluded that the Individual did not put forth sufficient evidence to resolve the Guideline G security concerns for the following reasons. The record did not demonstrate that the Individual acknowledged his maladaptive alcohol use because, while he acknowledged that he had been diagnosed as meeting the criteria for AUD, he denied that he had a problem or issue with alcohol . Furthermore, although he had taken steps to address the concerns regarding his alcohol use, including adopting a healthier lifestyle, abstaining, attending EAP counseling, and attending AA, he had not established a pattern of abstinence in accordance with treatment recommendations for the following reasons. He had only been abstinent for approximately four months, which was significantly less than the year recommended by the Psychiatrist. A relatively short period of time had passed since the Individual changed his concerning pattern of alcohol consumption, which had persisted for several years as a part of the Individual's daily routine. The record regarding the wife's response to his efforts in AA was also concerning given the intertwined nature of his marital relationship and alcohol use. Additionally, he did not complete an IOP, attend aftercare, or complete a treatment program; and, while the Psychiatrist no longer recommended that the Individual complete an IOP, the Psychiatrist continued to recommend additional treatment to demonstrate reformation and rehabilitation of the Individual's AUD. Furthermore, while the Individual's counselor was more positive regarding the Individual's progress, the counselor similarly recommended continued counseling and did not provide a favorable opinion regarding the Individual's likelihood of relapse.

Accordingly, the AJ concluded that the Individual had not resolved the Guideline G security concerns . (OHA Case No. PSH-22-0095, Thompson III)

Access Authorization Granted; Guideline E (Personal Conduct)

On October 28, 2022, an Administrative Jude determined that the Individual's access authorization should be granted 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 to carry out specific work tasks. the Local Security Office (LSO) received potentially derogatory information regarding the Individual's personal conduct. The LSO alleged that the Individual the LSO alleged that in the February 2022 QNSP, the Individual stated that she had not used any illicit substances, but it was revealed during the March 2022 ESI that she had ingested marijuana in July 2021 and that she had been less than forthcoming about this incident because she was embarrassed by the event. The LSO further alleged that although the Individual had stated in her QNSP that she had not purchased any illicit substances in the past seven years, she stated during the ESI that she had purchased "a ten pack of edible marijuana products in July 2021[,]" and that she had failed to disclose this on her QNSP due to feelings of embarrassment.

The Individual and her boyfriend testified at the hearing. While there was no doubt that the Individual was required to list her use of edibles containing THC on the QNSP, the Administrative Judge found the Individual's testimony credible on her explanation for the listing omission and the subsequent disclosure. As the Individual testified, the purchase and consumption of the substance at issue here were legal in the state she was visiting, leading her to erroneously believe that this act was not illegal . Further, the negative feelings she testified she associated with the incident -- and the fact that her lifestyle before and after the incident excluded such use -- resulted in her failing to remember the act . She credibly testified that once she was in a "face-to-face" conversation with the OPM investigator and he directly asked the question of past drug use to her, she remembered the noted incident and immediately disclosed the matter to him.

The Individual testified that during her interview with the OPM investigator, who specifically asked her about any illicit substance use within the past seven years, she voluntarily disclosed the information without first being confronted with any facts. Five days after the Individual's interview with the OPM investigator, the Individual's boyfriend, who was privy to the particulars of the incident, was interviewed by an OPM investigator and disclosed the same incident. The Individual's boyfriend, who was honest with the OPM investigator, provided no indication in his testimony that he had discussed the incident with the Individual prior to either his or her interview and revealed to her that he intended to disclose the matter to investigator. Importantly, the Individual's statements at the hearing were corroborated by her boyfriend's testimony. The Administrative Judge found that that the Individual had mitigated the stated concerns pursuant to the mitigating factor at ¶ 17(a). (OHA Case No. PSH-22-0121, Rahimzadeh)

Whistleblower Hearing (WBH)

On October 27, 2022, an Administrative Judge issued an initial agency decision (Decision) denying Mr. Brien Williams' complaint (Complaint) against Consolidated Nuclear Security, LLC (CNS) under the Department of Energy's Contractor Employee Protection Program and its governing regulations set forth at Part 708 of Title 10 of the Code of Federal Regulations (Part 708). The Complaint alleged that Mr. Williams had engaged in protected activity under Part 708 when he: (1) refused to comply with CNS's COVID-19 mask mandate, which he asserted was in violation of a statute (the Act) governing the FDA's Emergency Use Authorization for face masks in connection with the COVID -19 pandemic; (2) disclosed in a February 2, 2022, e-mail his belief that the mask mandate constituted a substantial violation of a law, rule, or regulation; and, (3) when he disclosed in the February 2, 2022, e-mail his belief that the mask mandate posed a substantial and specific danger to employees. Mr. Williams asserted that CNS subjected him to various forms of discipline, including suspending him without pay and requiring him to take leave until the mask mandate was discontinued, in retaliation for his alleged protected activity.

The Administrative Judge determined that a motion for summary judgment submitted by CNS should be granted because the Individual did not engage in protected activity under Part 708. The Administrative Judge concluded that the Individual's refusal to participate in masking was not protected under Part 708 because he did not ask CNS to correct any violation of Federal health and safety law or danger to employees before refusing to wear a mask. The Administrative Judge further concluded that Mr. Williams' belief that CNS violated the Act was unreasonable, and that he had not disclosed a substantial and specific danger to employees from masking. As Mr. Williams failed to establish that he engaged in protected activity under Part 708, the Administrative Judge denied the Complaint. (OHA Case No. WBH-22-0003, Harmonick)