PSH-13-0102

*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.
United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
)
Filing Date: August 29, 2013 )
) Case No.: PSH-13-0102
__________________________________________)
Issued: December 20, 2013
______________________
Hearing Officer Decision
______________________
William M. Schwartz, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXX (hereinafter referred to as
“the individual”) to hold an access authorization1 under the Department of Energy’s
(DOE) regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled, “General Criteria
and Procedures for Determining Eligibility for Access to Classified Matter or Special
Nuclear Material.” As discussed below, after carefully considering the record before me
in light of the relevant regulations and the Adjudicative Guidelines, I have determined
that the individual’s access authorization should be restored.
I. Background
The individual works for a DOE contractor in a position that requires her to maintain a
DOE security clearance. The individual’s arrest in the spring of 2013 raised security
concerns in the opinion of the local security office (LSO), and the LSO suspended the
individual’s security clearance. On August 1, 2013, the LSO sent a letter (Notification
Letter) to the individual advising her that it had reliable information that created a
substantial doubt regarding her eligibility to hold a security clearance. In an attachment
to the Notification Letter, the LSO explained that the derogatory information fell within
1 Access authorization is defined 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). Such authorization will be referred to variously in this Decision as access authorization or
security clearance.
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the purview of one potentially disqualifying criterion set forth in the security regulations
at 10 C.F.R. § 710.8, subsection (l) (hereinafter referred to as Criterion L).2
Upon her receipt of the Notification Letter, the individual exercised her right under the
Part 708 regulations to request an administrative review hearing, and I was appointed the
Hearing Officer in this case. At the hearing I convened pursuant to 10 C.F.R. § 710.25(e)
and (g), I took testimony from the individual, her parents, her supervisor, two co-workers,
and two neighbors. The LSO submitted 13 numbered exhibits (Exs. 1 through 13) into
the record prior to the hearing, and the individual submitted 11 exhibits (Exs. A through
K) prior to the hearing, and one exhibit (Ex. L) immediately following the hearing. The
transcript of the hearing will be hereinafter cited as “Tr.”
II. Regulatory Standard
A. Individual’s Burden
A DOE administrative review proceeding under Part 710 is not a criminal matter, where
the government has the burden of proving the defendant guilty beyond a reasonable
doubt. Rather, the standard in this proceeding places the burden on the individual
because it is designed to protect national security interests. This is not an easy burden for
the individual to sustain. The regulatory standard implies that there is a presumption
against granting or restoring a security clearance. See Department 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 denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990),
cert. denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security
clearance).
The individual must come forward at the hearing with evidence to convince the DOE that
restoring her 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). The
individual is afforded a full opportunity to present evidence supporting her eligibility for
an access authorization. The Part 710 regulations are drafted so as to permit the
introduction of a very broad range of evidence at personnel security hearings. Even
appropriate hearsay evidence may be admitted. 10 C.F.R. § 710.26(h). An individual is
thereby afforded the utmost latitude in the presentation of evidence to mitigate the
security concerns at issue.
2 Criterion L relates, in pertinent part, to information that a person has “[e]ngaged in any unusual conduct
or is subject to any circumstances which tend to show that the individual is not honest, reliable, or
trustworthy; or which furnishes reason to believe that the individual may be subject to pressure, coercion,
exploitation, or duress which may cause the individual to act contrary to the best interest of the national
security. Such conduct or circumstances include, but are not limited to, criminal behavior . . .” 10 C.F.R.
§ 710.8(l) (Criterion L).
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B. Basis for the Hearing Officer’s Decision
In personnel security cases arising under Part 710, it is my role as the Hearing Officer 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). I am instructed by the regulations to resolve any doubt as to a person’s access
authorization eligibility in favor of the national security. Id.
III. The Notification Letter and the Security Concerns
In the Notification Letter, the LSO cites one criterion, Criterion L, as the basis for
suspending the individual’s security clearance. Ex. 1. The LSO’s security concerns fall
into two categories, criminal conduct and associating with another person involved in
criminal conduct. As evidence of criminal conduct, the LSO cites the individual’s 2011
and 2013 arrests, when the individual was charged with Domestic Violence, Non-
Aggravated Assault. With respect to the individual’s association with an individual who
was involved in criminal conduct, the LSO relies on information that from 2005 or 2006
until February 2013 she allowed her now ex-husband to remain in her house, and
provided him with financial support, after she became aware that he was selling his
prescription medication to others and was using illegal drugs, though she was aware of
the DOE’s security concerns for such behavior. Id.
I find that the information as set forth above constitutes derogatory information that
raises substantial doubt regarding an individual’s eligibility for access authorization
under Criterion L. Criminal activity creates doubt about a person’s judgment, reliability,
and trustworthiness and by its very nature calls into question a person’s ability or
willingness to comply with laws, rules, and regulations. See Revised Adjudicative
Guidelines for Determining Eligibility for Access to Classified Information, issued by the
Assistant to the President for National Security Affairs, The White House (December 29,
2005) (Adjudicative Guidelines) at Guideline J, ¶ 30. Furthermore, association with
persons involved in criminal activity raises similar concerns about an individual’s
reliability, trustworthiness and ability to protect classified information. Adjudicative
Guidelines at Guideline E, ¶ 16(g). Sharing living accommodations with someone who
uses illegal drugs, or remaining at a residence where illegal drug use occurs, raises such a
concern. See generally Personnel Security Hearing, Case No. TSO-0845 (March 9,
2010); Personnel Security Hearing, Case No. TSO-0692 at 7 (April 15, 2009)
(cohabitation with illegal drug user raises a security concern, because DOE considers
“close association with an illegal drug user to constitute ‘illegal drug involvement’”).3
3 Decisions issued by the Office of Hearings and Appeals after November 19, 1996, are available on the
OHA website located at http://www.energy.gov/oha.
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IV. Findings of Fact
The individual has held a security clearance throughout her ten-year marriage, which
ended in divorce in September 2011. Tr. at 38, 114-15. Her husband was a controlling,
manipulating individual, who was often angry and strove to isolate her from her family
and acquaintances. Id. at 74, 95 (testimony of parents). He was only marginally
employed. Id. at 116; Ex. 10 (Transcript of Personnel Security Interview (PSI),
February 23, 2011) at 11. The individual paid all the household expenses from her
wages, including daycare for their two small children. Ex. 10 at 12; Ex. 11 (Transcript of
PSI, June 20, 2013) at 81. Without her knowledge, her husband had allowed liens to be
taken against their house, presumably for loans he obtained in his name, on which he
failed to meet his obligations. Ex. 11 at 12. Neighbors testified that they had overheard
her husband yell at her on several occasions and, after one fight, housed her and her one-
year-old overnight. Id. at 50, 68. The individual testified that her ex-husband had
punched her, usually on the back of the head, where bruises would not show. Id. at 137.
A manager at her facility testified that he had seen bruises on her arms at work, and that
she had called him in February 2013 terrified, stating that her husband was behaving
wildly due to drug use and that she was afraid to report the incident to the police. Id. at
16. Every witness questioned about the individual’s character responded that she was not
violent by nature. Id. at 13, 47, 63, 86, 96. Several of the witnesses further testified very
favorable as to the individual’s honesty, reliability, and trustworthiness. Id. at 13, 14, 37,
110.
Late in 2010, the individual’s husband moved out of their house. He lived for a while in
homeless shelters and, from January to March 2011, in his car. Id. at 122-23. The
individual felt guilty and allowed him to move back into the house while she worked her
way through their divorce. Id. at 123. In February 2011, the individual and her husband
engaged in a physical fight. The individual testified that her husband cornered her in the
basement, provoked her, and a shouting match ensued between them. He then punched
her in the jaw and hit her in the back of the head. She defended herself and, in so doing,
scratched him, drawing blood. Id. at 136-37; Ex. 10 at 8, 10, 14. She left the house, and
by the time she reached the police station, her face bore no visible marks of her
husband’s aggression. In the meanwhile, her husband had apparently alerted the police
regarding her attack on him; in any event, the police arrested her when she arrived at the
police station and charged her with Domestic Violence. Tr. at 137. Her parents drove
from their home several hours away to bail out their daughter. Id. at 97. According to
the individual, the charged was dropped when her husband failed to appear in court. Id.
at 137. By September 2011, the couple was divorced and the now ex-husband continued
to live in the house, as he had lost his job. Id. at 123. She still loved him and wanted to
help him, and he promised her that he would do better. Ex. 11 at 80, 93. She also stated
that she let him move in because she needed him to sign a quitclaim deed releasing the
house to her. Id. at 44. He stayed there for two years. Tr. at 123.
The couple fought again in April 2013. The ex-husband had taken the individual’s cell
phone and checkbook and would not return them to her. The neighbors testified that they
witnessed the ex-husband screaming at the individual while holding the couple’s three-
year-old son. Id. at 48, 65. The police again arrested the individual for Domestic
Violence, on the ex-husband’s allegation that she had hit, punched, and scratched him.
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Ex. 11 at 133. The individual testified that while she undoubtedly touched him trying to
regain her phone and checkbook, she did not hit, punch or scratch him. Tr. at 133 (any
scratches may have been self-inflicted or received from the young son). The manager
who testified at the hearing bailed her out of jail, and she spent the night with a co-
worker, who also testified at the hearing. Id. at 15, 87. The charges were again
dismissed when the ex-husband failed to appear in court. Id. at 135-36.
After the April 2013 fight, the ex-husband moved out of the house. He returns weekly to
exercise his visitation rights, but otherwise there is no contact between the individual and
him. Id. at 139. With help from her parents and the manager, the individual removed
most of the ex-husband’s possessions from the house in May 2013. Id. at 101; Ex. 11
at 31. The manager testified that in July 2013 he observed her husband yelling at her
during one such interaction. Tr. at 26. The ex-husband was returning the children to her
house and wanted to enter. She would not allow him in, and he went around the house
trying to find a way in. She called the police, who removed him from the property. Id. at
126. Ultimately, she obtained a warrant for his arrest for disturbing the peace. Ex. K.
In addition to her criminal activity, as described above, the individual’s association with a
person engaging in criminal activity—in this case, her husband—raises concerns about
the individual’s eligibility to hold an access authorization. According to her statements
during her 2013 PSI, the individual realized that he was selling his prescription pain
medication to others in 2005 or 2006. Ex. 11 at 53-55. She testified that she learned that
he was abusing drugs when he admitted to her in 2007 that he had been taking
hydrocodone for a year before it was prescribed for him in a hospital. Id. at 157-58. She
also suspected that he was using marijuana when she observed clouds of smoke inside the
house in 2010. She testified that she did not know what he was doing, but she certainly
sensed that it was wrong. Id. at 115-16. When cleaning the garage in 2011, the
individual and her father discovered some glass pipes that she believed were related to
drug use or manufacture, and in 2013, she found black residue on an abandoned high
chair. Id. at 117. Nevertheless, she allowed him to stay in the house, because at times he
would hold down a job and help with the children. Id. at 116.
The individual admits that she provided financial assistance to her ex-husband after she
was aware that he was using illegal drugs. At one point, in November 2012, the
individual gave her ex-husband $100 for gas, so that he could deliver their son to daycare
at a time when she was working. In February 2013, she paid for his bankruptcy
proceeding in order to eliminate the liens on what was now her house. She has provided
no support to him since that time. Tr. at 138.
The individual’s forgiving attitude toward her husband has since changed. She maintains
that it stopped in April 2013, when her children witnessed her being arrested at the
request of her ex-husband. She learned from her young daughter the next day how
shaken up the child was when the police took her mother away, and she determined that it
would not happen again. Ex. 11 at 96. The ex-husband has not lived in the house since
that time. Tr. at (26, 53, 66-67, 83, 101-02. The individual no longer provides any
support to her ex-husband, including gas money; he must pay for any transportation
related to exercising the visitation rights the divorce granted him. Id. at 138; Ex. C. On
April 22, 2013, she had all the locks on her house’s exterior doors changed, and by
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May 2013 had removed virtually all of his belongings from the house. Id. By June 2013,
she stated that she was “emotionally separated from” her ex-husband. Ex. 11 at 120.
After the July 2013 incident, the individual had her divorce lawyer speak with her ex-
husband to establish guidelines implementing the custody terms of their divorce,
including limiting communications about visitation arrangements to e-mail only and
prohibiting his leaving his vehicle when picking up for visitation or returning them. Tr.
at 130; Ex. G. As stated above, there is an outstanding warrant for his arrest for
disturbing the peace and intimidation during the July incident. Ex. K. As of
September 2013, the very last of the ex-husband’s possessions found in the house were
made available to him. Tr. at 130.
At the hearing, the individual acknowledged that she had displayed poor judgment by
letting her ex-husband move back into the house, especially after she was aware that he
was using illegal drugs. Id. at 123. She testified that she will no longer let him return to
her house. She stated that she now feels sorry for him, and while she feels that the
children should still have their father in their lives, she will not have him in hers. Id.
at 152.
V. Analysis
At the outset of this analysis, I must acknowledge that the witnesses upon whose
testimony I have made my factual findings all appeared on behalf of the individual, and
their testimony was undeniably favorable to her and frequently painted her ex-husband in
a poor light. While cognizant of the potential bias inherent in this testimony, I find that
all the witnesses were credible and reliable reporters of fact. The individual in particular
was extremely credible, on several occasions expanding on the testimony of others to
present more complete facts, even when those facts were to her detriment. See, e.g., id.
at 38.
I have thoroughly considered the record of this proceeding, including the submissions
tendered in this case and the testimony of the witnesses presented at the hearing. In
resolving the question of the individual’s eligibility for access authorization, I have been
guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c).4 After due
deliberation, I have determined that the individual’s security clearance should be
restored. The specific findings that I make in support of this decision are discussed
below.
The record before me establishes that the individual is not a violent person, prone to
criminal conduct. On the other hand, the witnesses consistently portrayed the
individual’s ex-husband as violent and manipulative. I find it completely credible that he
abused her physically in 2011 and instigated the fight in 2013, yet in both cases managed
4 Those factors include the following: the nature, extent, and seriousness of the conduct, the
circumstances surrounding the conduct, including knowledgeable participation, the frequency and recency
of the conduct, the individual’s age and maturity at the time of the conduct, the voluntariness of the
individual’s participation, the absence or presence of rehabilitation or reformation and other pertinent
behavioral changes, the motivation for the conduct, the potential for pressure, coercion, exploitation, or
duress, the likelihood of continuance or recurrence, and other relevant and material factors.
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to convince the police to have her arrested. I note that both Domestic Violence charges
were dismissed because the husband failed to appear in court. Although a dismissal on
technical grounds does not mitigate the LSO’s security concerns regarding criminal
charges, in this case, the alleged victim’s failure to cooperate with the prosecution casts a
shadow on the charges themselves. In any event, the individual has substantially changed
her family life, expelling the ex-husband and all his possessions from the house, changing
the locks, eliminating all physical contact with him, enforcing the no-contact provisions
with a pending warrant for his arrest. More important, her feelings toward her ex-husband
have changed dramatically since April 2013: she is now emotionally separated from him
and does not want him in her life. Under these circumstances, I find it highly unlikely
that the individual will engage in conduct similar to that which led to her arrests for
Domestic Violence, and further find that the behavior that resulted in her arrests does not
cast doubt on her reliability, trustworthiness, or good judgment. I therefore find that the
individual has mitigated the LSO’s security concerns with respect to her Domestic
Violence arrests. See Adjudicative Guidelines at Guideline J, ¶ 32(a).
At some point during the marriage, the individual became aware that her husband was
selling his prescription medications to others and using illegal drugs. At the hearing, the
LSO pointed out discrepancies between her statements during PSIs and those she made at
the hearing concerning when she first learned that her husband was abusing prescription
medications and using illegal drugs. At the hearing, however, she convincingly
explained that early on she suspected that her husband might have been engaging in
illegal activity, but was not sure until later, when either he admitted his behavior to her,
where hydrocodone was involved, or she encountered a room full of smoke and evidence
of illegal drugs in the garage. After considering her testimony, I conclude that her
discrepant responses on this matter were not intended to mislead the LSO but rather arose
from the varying contexts and manners in which she was questioned. In any event, her
admissions that she learned of her husband’s hydrocodone abuse in 2007 and his use of
illegal drugs in 2010 are sufficient to raise security concerns on the basis of allowing him
to live in her house despite her knowledge of his drug involvement. I note that family
members, such as spouses, involved in criminal activity can be far more difficult to
disassociate from than mere friends or neighbors. Cf. Personnel Security Hearing, Case
No. TSO-0845 (2010) (college roommates and housemates). Nevertheless, for the
reasons stated above, including the ex-husband’s expulsion from the family home and the
individual’s change of heart toward him, and her acknowledgment at the hearing of the
poor judgment she displayed in the past by allowing him to remain in the family home, I
find it quite unlikely that she will engage in similar association in the future.5 Because
her association with a person involved in criminal activity has ceased, and because it
occurred under circumstances unlikely to recur, I find that the individual has mitigated
5 The individual also testified that, despite the LSO’s assertions, she was not aware that the LSO
considered her association with her husband to be a security concern. Tr. at 122. Although she spoke to
her mother, her father, and the manager about her Domestic Violence arrests, she never expressed concern
to them about her ex-husband’s drug use or her association with him as a drug user. Id. at 35 (never talked
to manager about association concern), 77, 96 (never expressed concern about ex-husband’s drug use at
all). Based on the record before me, I cannot find that, at the time she was permitting her ex-husband to
live in their home with knowledge that he was engaging in criminal activity, the individual was aware that
her association with her husband raised a security concern.
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the LSO’s security concerns regarding her association with such an individual. See
Adjudicative Guidelines at Guideline E, ¶ 16(g).
VI. Conclusion
As explained in this Decision, I find that the LSO properly invoked 10 C.F.R. § 710.8(l)
in suspending the individual’s access authorization on the basis of derogatory information
it received regarding the individual. 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 have found that
the individual has brought forth sufficient evidence to mitigate the security concerns
associated with these criteria. I therefore find that restoring an access authorization to the
individual would not endanger the common defense and security and would be consistent
with the national interest. Accordingly, I have determined that the individual’s access
authorization should be restored.
William M. Schwartz
Hearing Officer
Office of Hearings and Appeals
Date: December 20, 2013