PSH-24-0022

*The original of this document contains information which is subject to withholding from disclosure under
5 U.S. C. § 552. Such material has been deleted from this copy and replaced with XXXXXX’s.
Department of Energy
Washington, DC 20585
United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
)
Filing Date: November 27, 2023 ) Case No.: PSH-24-0022
)
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Issued: April 24, 2024
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX (the Individual) to hold an
access authorization under the United States Department of Energy’s (DOE) regulations,
set forth at 10 C.F.R. Part 710, “Procedures for Determining Eligibility for Access to
Classified Matter and Special Nuclear Material.”1 As discussed below, after carefully
considering the record before me in light of the relevant regulations and the National
Security Adjudicative Guidelines for Determining Eligibility for Access to Classified
Information or Eligibility to Hold a Sensitive Position (June 8, 2017) (Adjudicative
Guidelines), I conclude that the Individual’s access authorization should be restored.
I. BACKGROUND
The Individual has been employed by a DOE contractor in a position that requires her to
hold an access authorization. Exhibit (Ex.) 1. In March and April 2023, DOE received
Information Reports (IR) that indicated that the Individual had been suspended for a week
without pay because of two incidents involving coworkers and inappropriately aggressive
behavior. Ex. 5 at 22–23. As a result of these reports, DOE asked the Individual to complete
a Letter of Interrogatory (LOI). Id. at 22. After receiving the Individual’s LOI in June 2023,
DOE still had concerns and asked the Individual to undergo a psychological evaluation
with a DOE-contracted psychologist (DOE Psychologist). Ex. 4 at 19. The DOE
Psychologist diagnosed the Individual with Unspecified Alcohol-Related Disorder
(UARD), without adequate evidence of rehabilitation or reformation. Ex. 1 at 5; Ex. 7 at
46. Additionally, the DOE Psychologist diagnosed the Individual with Generalized
Anxiety Disorder (GAD) with Panic Attacks. Ex. 1 at 5; Ex. 7 at 47.
1 The regulations define access authorization as “an administrative determination that an individual is eligible
for access to classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R.
§ 710.5(a). This Decision will refer to such authorization as access authorization or security clearance.
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The LSO subsequently issued the Individual a Notification Letter advising her that it
possessed reliable information that created substantial doubt regarding her eligibility for
access authorization. Ex. 1 at 6. In a Summary of Security Concerns (SSC) attached to the
letter, the LSO explained that the derogatory information raised security concerns under
Guideline G and Guideline I of the Adjudicative Guidelines. Id. at 5.
The Individual exercised her right to request an administrative review hearing pursuant to
10 C.F.R. Part 710. Ex. 2 at 13–14. The Director of the Office of Hearings and Appeals
(OHA) appointed me as the Administrative Judge in this matter, and I conducted an
administrative hearing. The LSO submitted nine exhibits (Ex. 1–9). The Individual
submitted four exhibits (Ex. A–D).2 The Individual testified on her own behalf and offered
the testimony of her aunt, her supervisor, her former co-worker, her group leader, her
Employee Assistance Program (EAP) counselor, and a clinical psychologist. Hearing
Transcript, Case No. PSH-24-0022 (Tr.) at 11, 40, 58, 71, 90, 115, 207. The LSO called
the DOE Psychologist to testify. Id. at 194.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY
CONCERNS
As previously mentioned, the Notification Letter included the SSC, which sets forth the
derogatory information that raised concerns about the Individual’s eligibility for access
authorization. Guideline G relates to security risks arising from excessive alcohol
consumption. “Excessive alcohol consumption often leads to the exercise of questionable
judgment or the failure to control impulses and can raise questions about an individual’s
reliability and trustworthiness.” Adjudicative Guidelines at ¶ 21. In citing Guideline G, the
LSO relied upon the DOE Psychologist’s July 2023 diagnosis that the Individual suffered
from UARD. Ex. 1 at 5. Guideline I relates to “[c]ertain emotional, mental, and personality
conditions [which] can impair judgment, reliability, or trustworthiness.” Adjudicative
Guidelines at ¶ 27. The LSO relied upon the DOE Psychologist’s July 2023 diagnosis that
the Individual suffered from GAD with Panic Attacks when citing Guideline I. Ex. 1 at 5.
III. REGULATORY STANDARDS
A DOE administrative review proceeding under Part 710 requires me, as the
Administrative Judge, to issue a Decision that reflects my comprehensive, common-sense
judgment, made after consideration of all the relevant evidence, favorable and unfavorable,
as to whether the granting or continuation of a person’s access authorization will not
endanger the common defense and security and is clearly consistent with the national
interest. 10 C.F.R. § 710.7(a). The regulatory standard implies that there is a presumption
against granting or restoring a security clearance. See Dep’t of Navy v. Egan, 484 U.S. 518,
531 (1988) (“clearly consistent with the national interest” standard for granting security
clearances indicates “that security determinations should err, if they must, on the side of
2 The Individual submitted PEth tests after the hearing. The PEth tests submitted with the original exhibits
did not all show the dates the tests were taken. See Ex. A. After the hearing, the Individual submitted the
dated PEth tests and the results of her March PEth tests. Ex. D.
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denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990) (strong presumption
against the issuance of a security clearance).
An individual must come forward at the hearing with evidence to convince the DOE that
granting or restoring access authorization “will not endanger the common defense and
security and will be clearly consistent with the national interest.” 10 C.F.R. § 710.27(d).
An individual is afforded a full opportunity to present evidence supporting his or her
eligibility for an access authorization. The Part 710 regulations are drafted to permit the
introduction of a very broad range of evidence at personnel security hearings. Even
appropriate hearsay evidence may be admitted. Id. at § 710.26(h). Hence, an individual is
afforded the utmost latitude in the presentation of evidence to mitigate the security
concerns at issue.
IV. FINDINGS OF FACT
In September 2022, the Individual was consuming alcohol at a bar with several co-workers.
Ex. 3 at 16. Two of her co-workers asked her several times if she wanted another drink,
and she stated that she did not. Ex. 6 at 27. An ex-partner who was also a co-worker came
up to the group and told the others that the Individual “had said no.” Id. One of the
coworkers then put the ex-partner in a chokehold until he was unconscious. Id.
In October 2022, two co-workers filed an ethics complaint against the Individual for
harassment and creating a hostile work environment. Ex. 4 at 19. As a result of this
complaint and the subsequent investigation, the Individual was given a written reprimand
and suspended from work without pay for one week. Id. Due to the reports related to these
two incidents, the Individual was asked to complete an LOI. Id. In her LOI responses, the
Individual denied the behaviors that her co-workers complained of in their ethics
complaint. Ex. 6 at 25. The LSO found that the Individual had mitigated the security
concerns related to the interpersonal conflict. Ex. 4 at 19.
However, because of the two incidents, the LSO sent the Individual to the DOE
Psychologist for an evaluation in August 2023. Ex. 7. After the evaluation, the Individual
was asked to take a laboratory test for Phosphatidylethanol (PEth).3 Id. at 43. Her PEth test
was returned positive result at a level of 134 ng/mL, which indicated that she had “ingested
significant quantities of alcohol within the past few weeks.” Id. at 43–44. Based on this
3 In a letter that accompanied the psychologist’s report, a medical doctor explained the presence of PEth in
blood:
PEth is not a normal body metabolite. PEth accumulates when ethanol binds to the red
blood cell membrane. The PEth level reflects the average amount of alcohol consumed
over the previous 28- 30 days as red blood cells degrade and enzymatic action removes
PEth. A MedTox PEth exceeding 20 ng/mL is evidence of “moderate to heavy ethanol
consumption.” PEth above 20 ng/mL indicates medium drinking (averaging between 2 to
4 drinks/day for several days/week). This range corresponds to the top of NIAAA’s “low
risk” category (females: 3 drinks/day or 7 drinks/week).
Ex. 5 at 71.
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information and his evaluation, the DOE Psychologist determined that the Individual met
the diagnostic criteria for UARD. Id. at 46. He recommended that she enroll in and
successfully complete an intensive outpatient substance abuse program (IOP) and then
complete at least six months in an aftercare program. Id. at 47. He also suggested that the
Individual should provide negative monthly PEth testing for six months. Id.
Additionally, the DOE Psychologist determined that the Individual met the diagnostic
criteria for GAD with Panic Attacks which is an emotional, mental, and personality
conditions that can impair the Individual’s judgment, reliability, or trustworthiness. Id. at
45. He noted that if the Individual was willing to engage in therapy, her prognosis on these
concerns would be positive. Id. at 47.
The Individual provided five negative PEth tests dated October 4, 2023, November 10,
2023, January 9, 20244, February 15, 2024, and March 26, 2024. Ex. A at 16–18, Ex. D.
She also provided documentation that shows that she completed an IOP in February 2024.
Ex. A at 6. The Individual also provided a letter from her EAP counselor, which explained
that she had been regularly attending sessions since October 2023, and that he was
impressed with her progress. Id. at 21. In addition to the EAP sessions, the Individual
submitted a letter from a different provider that stated that she had been attending
counseling sessions with a therapist every two weeks beginning in December 2023. Id. at
22.
Finally, the Individual submitted a psychological evaluation completed in October 2023 by
her own clinical psychologist. Ex. A at 23. The Individual’s clinical psychologist diagnosed
her with Alcohol Use Disorder (AUD), mild, in early remission. Id. at 26. The Individual
also presented eight statements from family members and colleagues speaking to her
integrity and professionalism. Ex. B. She included her work performance evaluations from
2018 to 2022. Ex. C.
The Individual’s aunt testified that the Individual’s extended family is extremely close and
spends a lot of time together. Tr. at 14–15. She explained that the family has weekly
gatherings at the grandmother’s house to play games and do puzzles. Id. When the
Individual’s security clearance was suspended, she called and asked if she could speak with
her aunts, uncles, and grandmother all together and told them about the suspension in
person. Id. at 16. Everyone immediately asked what the Individual needed to do to get her
clearance back and wanted to know what they could all do to support her in taking those
steps. Id. The large family gatherings do not include alcohol as a sign of respect for the
grandmother, who is a recovering alcoholic. Id. at 18, 33. She also explained that the
Individual told the family about her counseling and the other steps she was taking in order
to show DOE that she was taking the concerns seriously. Id. at 24–25. The aunt believes
that this process has taught the Individual to ask for more support if she needs it. Id. at 26.
The aunt explained that the Individual took legal custody of her younger brother right after
she completed college. Id. at 21. The aunt testified that being her brother’s legal guardian
4 The Individual was told that she could do a test in December 2023 through her IOP, but the IOP was unable
to provide the testing, so she did not complete a PEth test in December 2023. Tr. at 155–56.
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forced the Individual to take on a lot of responsibilities at a young age. Id. at 21–22. She
believes that since starting treatment, the Individual has figured out how to take care of
herself after spending a long time focused on taking care of everyone around her. Id. at 36.
The Individual’s supervisor has known her since she was a child and hired her to work in
his group in 2018, supervising her from about 2019 to 2023. Id. at 41–42, 54. He does not
recall any issues with her co-workers but thinks someone might possibly have taken offense
to her somewhat “stern” approach. Id. at 54–55. Based on his experience working with her,
he feels confident that she can be trusted to handle sensitive national security information.
Id. at 52–53.
The Individual’s former co-worker testified that when she and the Individual interacted
socially on work trips, the Individual’s consumption of alcohol was appropriate. Id. at 63.
She also stated, based on her experience working with the Individual, she did not have any
concerns about the Individual getting her security clearance back. Id. at 67–68.
The Individual’s group leader stated that he was not the Individual’s direct supervisor, but
he regularly reviewed her work. Id. at 73. He also testified that he has never had any issues
where the Individual was involved in the mishandling of classified information. Id. at 74.
Further, he does recall seeing the Individual drinking on work trips, “but not more than
anyone else was in – given the situation.” Id. at 77.
The Individual’s EAP counselor began having sessions with the Individual in October
2023. Id. at 91–92. He testified that they have had three sessions since then, where they
focused on childhood trauma and anxiety and, to a degree, how that related to her alcohol
use. Id. at 94, 96. The EAP counselor feels that they are making “significant inroads and
progress” related to those issues. Id. Specifically, he believes they are working on “making
sounder decisions about her emotional wellbeing and how to work that out, not medicate
that [with alcohol].” Id. at 104. He also stated that he thinks the support system provided
by the Individual’s extended family has been important to her progress and continues to be
a great resource for her. Id. at 99–100. He plans to continue seeing the Individual as long
as she has sessions available under the EAP program and will help her to find a referral
when they run out of sessions. Id. at 101.
The Individual testified that she has not consumed any alcohol since her security clearance
was suspended in September 2024 and intends to continue abstaining from alcohol. Id. at
128, 160, 177. She stated that in late February 2024 she completed a twelve-week IOP that
consisted of three group sessions and one individual session a week. Id. at 145. Every
session began with a breathalyzer test, and the Individual tested negative at all of the
sessions. Id. at 148. She feels that the program helped her learn better coping mechanisms
for dealing with life and emotions and how those issues related to substance abuse. Id. at
147. She testified that she is signed up to begin an aftercare program that meets monthly
with the option for more sessions beginning in April 2024. Id. at 152. The aftercare program
was not available immediately after she completed her IOP, but she committed to attending
as soon as it was available. Id. at 153.
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The Individual further testified that in addition to her EAP sessions, she has been seeing a
therapist since the beginning of December 2023. Id. at 116. At first, they met every week,
and now, by mutual decision, they meet every other week. Id. at 117–18. The therapist has
helped her learn coping methods to deal with anxiety, like breathing exercises and
reframing. Id. at 180. The Individual testified that she decided that she wanted to make sure
her counseling was helpful to her healing and growth in addition to addressing DOE’s
concerns. Id. at 162. She feels that regardless of what happens in the hearing, the treatments
she has undergone since her clearance was suspended have had “a significant impact on
[her] life.” The Individual admitted that she had an issue with alcohol in the past. Id. at
171.
After being present for the entire hearing, the DOE Psychologist testified that he believed
that the Individual had displayed adequate evidence of rehabilitation and reformation. Id.
at 200. He explained that because the Individual completed her IOP, is continuing with
aftercare, and has “recogniz[ed] the relationship between alcohol, anxiety, and [] trauma,”
she is in a good place. Id. He opined that “she really comes across with a real commitment
to recognizing how this was interfering with what she wanted to be and succeed in life.”
Id. at 201. The DOE Psychologist stated that her prognosis regarding both substance abuse
and anxiety were positive. Id. at 202. He also believed that she is a low risk for relapse
regarding alcohol misuse and a low risk of being unable to deal with her anxiety. Id. at
202–03. The DOE Psychologist also testified that the Individual has met the mitigation
requirements proposed in his report. Id. at 203–04. And that she was rehabilitated and
reformed. Id. at 201.
The Individual’s clinical psychologist testified the Individual has “embraced her treatment”
and “benefited from it tremendously.” Id. at 208. She would describe the Individual’s
prognosis as “excellent.” Id. at 209.
V.ANALYSIS
A.Guideline G
Conditions that could mitigate security concerns under Guideline G include:
(b) the individual acknowledges his or her pattern of maladaptive alcohol
use, provides evidence of actions taken to overcome this problem, and has
demonstrated a clear and established pattern of modified consumption or
abstinence in accordance with treatment recommendations;
(c) the individual is participating in counseling or a treatment program, has
no previous history of treatment and relapse, and is making satisfactory
progress in a treatment program; and
Adjudicative Guidelines at ¶ 23(b)–(c).
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The Individual testified that she had a problem with alcohol prior to her attendance at the
IOP. She provided testimony from her EAP counselor that she was making significant
progress. The Individual also submitted documentation from her completed IOP and five
negative PEth tests. The DOE Psychologist testified that the Individual completed the
mitigation requirements made in his report. He opined that she was rehabilitated and
reformed. Therefore, I find that the Individual has mitigated the Guideline G concern
pursuant to mitigating factor b. Id. at ¶ 23(b).
The Individual provided documentation and significant testimony that showed that she had
completed an IOP recommended by the DOE Psychologist and is signed up to begin
attending aftercare as soon as it is available to her. She is also regularly seeing her EAP
counselor and a therapist to provide further support in her recovery. Her providers have
indicated, in both written and hearing testimony, that she is making good progress in her
treatment. Further, the Individual has no previous history of treatment and relapse.
Therefore, I find that she has mitigated the Guideline G concern pursuant to mitigating
factor c. Id. at ¶ 23(c).
Accordingly, I find that the mitigating conditions have been satisfied, and that the
Individual has resolved the security concerns asserted by the LSO under Guideline G.
B. Guideline I
Conditions that could mitigate concerns under Guideline I include:
(b) The individual has voluntarily entered a counseling or treatment
program for a condition that is amenable to treatment, and the individual
is currently receiving counseling or treatment with a favorable
prognosis by a duly qualified mental health professional;
(c) Recent opinion by a duly qualified mental health professional employed
by, or acceptable to and approved by, the U.S. Government that an
individual's previous condition is under control or in remission, and has
a low probability of recurrence or exacerbation;
Adjudicative Guidelines at ¶ 29(b)–(c).
The Individual has been attending therapy sessions related to her childhood, trauma, and
other concerns since October of 2023. During that time, she has also been attending
sessions with her EAP counselor to help deal with her alcohol use and anxiety. As she
testified, she voluntarily began seeing these providers because she believed doing so would
help her to address DOE’s Guideline I concerns. Both the therapist and EAP counselor
gave the Individual a favorable prognosis regarding her anxiety. Therefore, she has
mitigated the Guideline I concern pursuant to mitigating factor b. Id. at ¶ 29(b).
Further, the DOE Psychologist testified that, in his view, the Individual was addressing her
GAD well and that that particular condition was “stabilized.” He felt that her
prognosis
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was positive and that there was “low risk” of that part of her condition deteriorating. As
such, the Individual has also mitigated this concern pursuant to mitigating factor c. Id. at
¶ 29(c).
Accordingly, I find that the mitigating conditions have been satisfied, and that the
Individual has resolved the security concerns asserted by the LSO under Guideline I.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the
possession of DOE to raise security concerns under Guideline G and Guideline I of the
Adjudicative Guidelines. After considering all the relevant information, favorable and
unfavorable, in a comprehensive, common-sense manner, including weighing all the
testimony and other evidence presented at the hearing, I find that the Individual has brought
forth sufficient evidence to resolve the security concerns set forth in the Summary of
Security Concerns. Accordingly, I have determined that the Individual’s access
authorization should be restored. This Decision may be appealed in accordance with the
procedures set forth at 10 C.F.R. § 710.28.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals