PSH-15-0081

*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: October 16, 2015 )
) Case No.: PSH-15-0081
__________________________________________)
Issued : May 10, 2016
__________________________
Administrative Judge Decision
__________________________
Wade M. Boswell, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX (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 fully discussed below, after carefully considering the record before me in
light of the relevant regulations and Adjudicative Guidelines, I have determined that the
individual’s access authorization should be restored.
I. Background
The individual is employed by the DOE in a position that requires him to hold a security
clearance. In September 2014, the Local Security Office (LSO) was contacted by a woman
who stated that her daughter was in a relationship with the individual and that the woman
had concerns about the individual’s judgment and reliability. See Exhibit 17. The woman
alleged that the individual was volatile and abusive and she had concerns about her
daughter’s safety. Id. Subsequently, the LSO received what it believed was corroborating
information of the woman’s concerns and, in October 2014, conducted a personnel security
interview (PSI) with the individual. See Exhibits 9, 12 and 17.
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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Since the PSI did not resolve concerns about the individual’s behavior, the LSO referred
the individual for evaluation by a DOE consulting psychologist, who conducted a
psychological evaluation of the individual approximately ten days following the PSI. The
individual expressed concerns about the professionalism of the DOE psychologist and, by
agreement of the individual and the LSO, the LSO referred the individual for a de novo
evaluation by a DOE consulting psychiatrist, who conducted a psychiatric evaluation of
the individual in May 2015.2 See Exhibit 11.
Since neither the PSI nor the DOE psychiatrist’s evaluation resolved the security concerns,
the LSO informed the individual in a letter dated September 1, 2015 (Notification Letter),
that it possessed reliable information that created substantial doubt regarding his eligibility
to hold a security clearance. In an attachment to the Notification Letter, the LSO explained
that the derogatory information fell within the purview of three potentially disqualifying
criteria set forth in the security regulations at 10 C.F.R. § 710.8, subsections (f), (h) and (l)
(hereinafter referred to as Criterion F, Criterion H and Criterion L, respectively).3 See
Exhibit 4.
Upon his receipt of the Notification Letter, the individual exercised his right under the Part
710 regulations by requesting an administrative review hearing. See Exhibit 5. The Director
of the Office of Hearings and Appeals (OHA) appointed me the Administrative Judge in
the case and, subsequently, I conducted an administrative hearing in the matter. At the
hearing, the LSO introduced 19 numbered exhibits into the record of the case and presented
the testimony of two witnesses, an LSO personnel security specialist and the DOE
consulting psychiatrist. The individual, represented by counsel, introduced 13 lettered
exhibits (Exhibits A-M) into the record and presented the testimony of eight witnesses,
including that of himself and of a forensic psychologist. The exhibits will be cited in this
Decision as “Ex.” followed by the appropriate numeric or alphabetic designation. The
hearing transcript in the case will be cited as “Tr.” followed by the relevant page number.4
II. Regulatory Standard
2 The LSO and the individual agreed that all findings and reports of the DOE consulting psychologist (i.e.,
from the initial mental health evaluation) are excluded from consideration in this administrative review
proceeding. See Boswell, Administrative Judge, Memo of Prehearing Conference, Nov. 24, 2015 at 5.
3 See Section III below.
4 OHA decisions are available on the OHA website at energy.gov/oha/office-hearings-and-appeals. A
decision may be accessed by entering the case number in the search engine at energy.gov/oha/security-cases.
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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 with evidence to convince the DOE that granting or
restoring his or 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 his or 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). Thus, an individual
is afforded the utmost latitude in the presentation of evidence to mitigate the security
concerns at issue.
B. Basis for the Administrative Judge’s Decision
In personnel security cases arising under Part 710, it is my role 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). 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 at Issue
As previously noted, the LSO cited three criteria as the bases for suspending the
individual’s security clearance: Criterion F, Criterion H and Criterion L. Criterion F refers
to information that a person has “deliberately misrepresented, falsified, or omitted
significant information from a Personnel Security Questionnaire for Sensitive National
Security Positions, a personnel qualifications statements, a personnel security interview,
written or oral statements made in response to official inquiry on a matter that is relevant
to a determination regarding eligibility for DOE access authorization or [Part 710
administrative review] proceedings….” 10 C.F.R. § 710.8(f). Conduct involving
questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules
and regulations can raise questions about an individual’s reliability, trustworthiness, and
ability to protect classified information. Any failure to provide truthful and candid answers
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during the security clearance process is of particular concern. See Guideline E of the
Revised Adjudicative Guidelines for Determining Eligibility for Access to Classified
Information, issued on December 29, 2005, by the Assistant to the President for National
Security Affairs, The White House (Adjudicative Guidelines). With respect to Criterion F,
the LSO alleges the individual made false statements with respect to six different topics
discussed in the PSI. Ex. 4, Encl. 1 at 1-6.
Criterion H concerns information that a person has “an illness or mental condition of a
nature which, in the opinion of a psychiatrist or licensed clinical psychologist, causes, or
may cause, a significant defect in judgment or reliability.” 10 C.F.R. § 710.8(h). It is well
established that “certain emotional, mental, and personality conditions can impair
judgment, reliability, or trustworthiness.” See Adjudicative Guidelines at Guideline I.
Conduct influenced by such psychological conditions can raise questions about an
individual’s ability to protect classified information. With respect to Criterion H, the LSO
relied upon the May 2015 written evaluation of the DOE consulting psychiatrist in which
he concluded that the individual met the criteria set forth in the Diagnostic Statistical
Manual of the American Psychiatric Association, Fifth Edition (DSM-5), for both Paranoid
Personality Disorder and Antisocial Personality Disorder and that each of these is an illness
or mental condition which causes, or may cause, a significant defect in judgment or
reliability. Ex. 4, Encl. 1 at 7; Ex. 11 at 14.
Criterion L concerns information that an individual has engaged in conduct “which tends
to show that the individual is not honest, reliable, or trustworthy….” 10 C.F.R. § 710.8(l).
In the Notification Letter, the LSO limited the scope of the Criterion L concerns to criminal
conduct. “Criminal activity creates doubt about a person’s judgment, reliability, and
trustworthiness. By its very nature, it calls into question a person’s ability or willingness
to comply with laws, rules and regulations.” Adjudicative Guidelines at Guideline J. With
respect to Criterion L,5 the LSO cites a domestic violent incident report naming the
individual, which the individual’s former girlfriend filed with local law enforcement. Ex.
4, Encl. 1 at 8-9; Ex. 15.
IV. Findings of Facts and Analysis
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)6 and the Adjudicative
5 The Notification Letter alleges eight instances of criminal conduct on the part of the individual; however,
prior to the hearing, the LSO stipulated that seven of those instances did not fall within Guideline J of the
Adjudicative Guidelines and that the administrative review proceeding, with respect to Criterion L, should
be limited to the review of the security concern arising from a single instance of alleged domestic violence
that was reported to local law enforcement by the individual’s former girlfriend. Tr. at 10; Ex. 4, Encl. 1 at
8-9.
6 Those factors include the following: the nature, extent, and seriousness of the conduct, the circumstances
surrounding the conduct, to include knowledgeable participation, the frequency and recency of the conduct,
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Guidelines. After due deliberation, I have determined that the individual’s access
authorization should be restored. The specific findings that I make in support of this
decision are discussed below.
A. Administrative Judge Evaluation of Evidence and Findings of Fact:
Criterion F Security Concerns
The LSO commenced a security investigation of the individual after being contacted by the
parents of the individual’s then-girlfriend (TGF) who stated that they had concerns about
the individual’s judgment and reliability. For the subsequent eight months, TGF’s parents
maintained regular contact with the LSO regarding their concerns. Ex. 17. During that
period, TGF’s parents provided the LSO with what they purported were (1) 65 e-mail or
text communications from TGF to her mother and (2) six audio files, including portions of
two conversations between the individual and TGF, which had been recorded by the TGF
without the knowledge of the individual. Ex. 13; Ex. 14. At no point during its investigation
did the LSO speak directly with TGF. Tr. at 45.
Attached to the Notification Letter is a nine-page statement of security concerns, the first
six of which describe the Criterion F security concerns. Criterion F concerns arise when a
person has deliberately misrepresented, falsified, or omitted significant information to the
DOE on a matter that is relevant to a determination regarding the person’s eligibility for
DOE access authorization. 10 C.F.R. § 710.8(f). With respect to the individual, the LSO
cites six specific statements (or series of statements) made by the individual during the PSI
as constituting security concerns under Criterion F; most of the information cited by the
LSO to evidence the individual’s falsifications or omissions is information that was
derived, directly or indirectly, from TGF’s parents.
Each of these six will be examined separately.
Individual’s Presence on University Campus. In September 2014, TGF’s parents met with
the LSO and expressed their concerns that their daughter was in an abusive relationship;
they said they feared for her safety and local law enforcement was not listening to them.
Ex. 17; Tr. at 19-20. They also believed that the individual was following their daughter at
the university she attended. The LSO suggested that the parents contact the university’s
police department; the LSO then contacted the university’s police directly to advise them
that a concerned parent might be calling them. Ex. 17; Tr. at 124, 40-41. Several days later,
the parents contacted the LSO to report that they had contacted the university police. Ex.
17.
The next day, the university police observed the individual in a hallway of a classroom
building. They approached him and, upon ascertaining that he was not a student, advised
the age and maturity at the time of the conduct, the voluntariness of his 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 continuation or recurrence, and
other relevant and material factors.
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him that he was trespassing and that he would be arrested if he returned to the campus,
other than for a public event. Ex. 12; Tr. at 175-176. The university police did not advise
the individual that they had received a specific complaint that he had been stalking his
TGF. The individual first learned that a complaint had been placed against him with the
university police many months later as a result of the LSO’s investigation. Id. at 175-179,
207-208.
Approximately two weeks after the individual had been given a trespassing warning by
university police, the LSO conducted a PSI with the individual. In the Notification Letter,
the LSO states that the individual stated during the PSI that “the reason [he was] escorting
[his] girlfriend to [the university] was because there had been reports that rapes were
occurring on campus, and [he was] there for her safety.” Ex. 4, Encl. 1 at 1. The LSO
alleges that this is a false statement, citing seven separate bases. Five of these are statements
made by TGF to third parties, one during an interview with a university police officer and
four in e-mails or text messages to her mother; all report or suggest abusive conduct by the
individual. Id. at 1-2.
However, the individual’s statement in the PSI is different in significant ways from that
attributed to him in the Notification Letter. His actual statement was: “… recently I was
actually at the [university] with my girlfriend. Uh, they had been sending out a bunch of
messages saying, a bunch of rapes were occurring on campus. And I had the day off, and
she said, ‘Hey why don’t you come to the lab with me, sit outside the lab, and we’ll go get
something to eat afterward?’ I said, ‘Okay, sure, not a problem.” I guess that’s not allowed
I did not know that, and she did not know that. And a [university] guy came up and he said,
‘You know, we got a call about a suspicious person you mind coming with me.’” Ex. 9 at
32.
The individual and TGF ended their relationship approximately eight months after the
occurrence at the university and, as of the date of the hearing, they had had no contact with
one another for seven months. TGF testified at the hearing pursuant to a subpoena issued
at the request of the individual. During her testimony, TGF confirmed that on the date the
individual had been given a trespassing warning at the university, she had suggested that
he come to the university with her and she had driven them to and from the campus in her
car. Tr. at 259-260, 312. Her testimony is consistent with an email that she had written her
mother a couple of months after the occurrence at the university, after her mother had
complained that TGF had not supported her parents’ story when TGF spoke to university
officials. In the email, TGF wrote that the day the individual was given a trespassing
warning “is the day that I invited him to be there. I actually said, ‘Hey, why don’t you come
with me so we can eat and stuff afterwards?’” Ex. D at 3. In light of the lack of a present
relationship between the individual and TGF and the general animosity towards the
individual that TGF expressed during her testimony, I find this aspect of her testimony
credible.
Based on the foregoing, I conclude that the individual’s statements in the PSI are factually
correct with respect to his presence on the university campus on the date he received a
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trespassing warning and, therefore, any Criterion F security concerns alleged with respect
to such statements are resolved.
Individual’s Flexible Work Schedule. In the Notification Letter, the LSO cites two
additional statements made by the individual in the PSI in conjunction with the occurrence
at the university as the bases for Criterion F security concerns.
First, the LSO states in the Notification Letter that the individual was scheduled to work
on the day he received the trespassing warning from the university and it was not his
“Alternative Work Schedule Day,” as he had said it was during the PSI. Ex. 4, Encl.1 at 2.
However, the individual’s supervisor confirmed in writing and in testimony at the hearing
that, although there had been an issue with the timekeeping records, the day in question
was an “Alternative Work Schedule Day” for the individual and, therefore, he was not
scheduled to be at work at the time he was questioned by university police. Ex. B at 1; Tr.
at 55, 208.
Second, the Notification Letter states that during the PSI the individual “went on to say
that [he] had actually brought work with [him] that day to [the university], and [he was]
conducting telephone calls to persons on a call log…. [He] stated [his] supervisor was
aware that [he does] this away from work, and [he] will often leave work early but make
up the hours at home calling persons on the list at night. According to [his] supervisor,
[name] and, [name], [manager], this is not a true statement. [He was] not authorized to have
a flexible schedule as [he] stated.” Ex. 4, Encl. 1 at 2. The Notification Letter does not cite
any documentation with respect to the assertion that the individual’s supervisor and
manager disputed the individual’s statements about his flexible work schedule. During a
prehearing conference, I noted the absence of such documentation and the need for support
for the assertion in the Notification Letter. None was provided. Additionally, the
individual’s supervisor (who was named in the Notification Letter as one of the sources of
the LSO’s assertion) testified at the hearing that, due to the nature of the individual’s
project, he and the individual had agreed to an informal flexible work arrangement that was
consistent with that described by the individual during the PSI. Tr. at 59-61. Further, the
supervisor confirmed in writing and during his testimony at the hearing that he had not
spoken with anyone from security with respect to the individual’s attendance or flexible
schedule. Ex. B at 1; Tr. at 62.
Based on the foregoing, I conclude that he individual’s statements in the PSI with respect
to his flexible work schedule are factually correct and, therefore, any Criterion F security
concerns alleged with respect to such statements are resolved.
Conflicts with Co-Workers. The Notification Letter states that during the PSI the individual
was asked if he had ever had any kind of conflicts with a co-worker or had interactions
with co-workers that could be perceived by someone as making them feel uncomfortable
and the individual responded, “Not that I’m aware of, no.” To evidence that this statement
by the individual constitutes a Criterion F security concern, the Notification Letter then
refers to “an email made available to DOE from [TGF] to her mother,” in which TGF
discussed the individual’s reaction to a co-worker telling the individual that “the manager
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of … [a] company that didn’t get the job to work for DOE [was] trashing him to everyone
at DOE.” Ex. 4, Encl. 1 at 3.
To demonstrate the individual’s misrepresentation in the PSI, the Notification Letter relies
on a statement purportedly made by the individual to his TGF (which she then purportedly
repeats to her mother in an email); however, even assuming the individual made the
statement and it was accurately reported, the statement does not relate to the question the
LSO asked of the individual during the PSI. Even though the PSI question was very broad,
it specifically focused on “co-workers;” the allegedly contradictory statement by the
individual was not about a co-worker, but, rather, a manager of a company which had
unsuccessfully bid on a contract for work with DOE.7 This does not constitute a Criterion
F security concern.
Conflict with DOE Contractor Employee. The Notification Letter states that after the
individual contemplated the LSO’s question about conflicts with co-workers, he described
an interaction with a DOE contractor employee. Ex. 4, Encl. 1 at 3. During the PSI, the
individual stated that TGF had told him that a DOE contractor employee had texted her a
request for nude photographs and, subsequently, the individual made several attempts to
telephone the DOE contractor employee, left one voicemail, and received a return text from
the contractor employee stating he would not be contacting TGF again, and, thereafter, the
individual left a follow-up voicemail for the contractor employee. These events all took
place on a single day. Ex. 9 at 23-26.
Prior to the PSI, the parents of TGF reported to the LSO that the DOE contractor employee
(who was a friend of TGF’s father) had received a “veiled threat” from the individual. Ex.
17. The LSO had interviewed the contractor employee prior to the PSI with the individual.
The information provided by the contractor employee during that interview with respect to
the events which occurred8 largely parallels the responses by the individual during the PSI
with respect to the interaction between the individual and the contractor employee. Id.
The individual stated in the PSI that he had not threatened the contractor employee and the
contractor employee stated in his interview with the LSO that he had not felt threatened by
the individual.9 Ex. 9 at 26; Ex. 17. At the hearing, the contractor employee was called as
a witness by the individual. Both the individual and the contractor employee testified that
they had never seen one another prior to the day of the hearing and had had no prior contact
7
Further, at the hearing the individual’s supervisor testified that he was aware of the situation involving the
manager of the unsuccessful bidder, that he and the individual discussed it, and that the supervisor felt the
individual’s conduct which had actually occurred with respect to the situation had been appropriate for the
workplace. Tr. at 56-59.
8 The differences in the two narratives are primarily related to assumptions about one another’s motivations
and intentions and to differences in memories with respect to the number of calls made (but uniform in terms
of the number of messages left).
9 The file notes of the LSO erroneously names TGF’s father as the person not feeling threatened; however,
the personnel security specialist testified at the hearing that this was an error and should have referred to the
DOE contractor employee. Tr. at 46-47.
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other than the exchange of messages previously described which had occurred during the
course of a single day. Tr. at 186, 215, 244-245. The contractor employee’s testimony
confirmed his prior statements to the LSO, including that he had not felt threatened by the
messages that the individual had left him. Id. at 251-252.
The Notification Letter’s summary of the individual’s statements during the PSI about
these events does not appear to be significantly different from the summary of the
contractor employee’s description of these events which is also contained in the
Notification Letter. Criterion F security concerns are triggered when a person deliberately
misrepresents or omits significant information during an inquiry with respect to one’s
eligibility for DOE access authorization. Therefore, to demonstrate that doubt as to a
person’s eligibility for access authorization arises under Criterion F, a notification letter
(as a minimum) needs to identify both a deliberate statement made by a person which is
allegedly false and to state the reason that the statement is believed false with respect to
significant information. The Notification Letter does not contain this information in any
readily identifiable way and, therefore, I conclude that no Criterion F security concern is
alleged in the Notification Letter with respect to these events.
Threats Respect the Use of Weapons. The Notification Letter recites that the individual was
asked during the PSI if he had ever indicated that he would be willing to use his rifles as
sniper rifles.10 The Notification Letter also states that the individual confirmed the name of
TGF’s ex-boyfriend, which was followed by the LSO talking about DOE’s concerns about
violence in the workplace. During that discussion the individual stated “Ok. No I haven’t
made any, any threats against any of them, and I know he hadn’t either.” To evidence the
falsity of this statement, the Notification Letter cites a number of statements made by the
individual during a conversation with TGF, which TGF had recorded without the
individual’s knowledge. Ex. 4, Encl. 1 at 4-5. This recording was subsequently provided
to the LSO by the parents of TGF.
The audio recording is one of six recordings submitted into the record by the LSO. See Ex.
14. The quality of these recordings is generally poor, with significant portions being
indecipherable. These recordings were accompanied by a transcript prepared by the LSO;
even with the poor quality of the recordings, the transcript is noticeably inaccurate. Both
DOE’s counsel and consulting psychiatrist commented during the hearing that the
transcript was inaccurate. Tr. at 51, 336-337. As a result, the LSO agreed at the hearing
that the court reporter would prepare new transcripts of these recordings. These transcripts
were submitted separately from the hearing transcript, are more accurate than the LSO’s
original transcripts, and I have admitted them into the record as Exhibit 19 for ease of
reference. The original transcript (which was included as part of Exhibit 14) is superseded
by Exhibit 19.
10 The Notification Letter next includes a series of statements made by the individual in the PSI about not
having threatened TGF’s father. The Notification Letter does not refer to any information suggesting that
these are false statements; and, therefore, I conclude that the LSO included these statements as narrative, but
not as a separate Criterion F allegation. See Ex. 4, Encl. 1 at 4 (¶ I. F.).
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The LSO contends that Audio Recording One records the individual making a plan to
murder TGF’s ex-boyfriend and to do so in a way that he would not get caught. The
individual testified that it was not a plan or a threat to TGF’s ex-boyfriend, but a
conversation that took place following a number of conversations in which TGF talked
about wanting to get back together with her ex-boyfriend (who was married and living out
of state) and TGF making comments about killing the individual’s ex-girlfriend because
he had had contact with her. The individual recalled the conversation was his weaving
together aspects of these earlier conversations to show how silly these themes had been.
Tr. at 181-184.
Notwithstanding the poor quality of the audio recordings, my conclusion from listening to
Audio Recording One is that TGF and the individual seemed to be engaged in intellectual
banter, as opposed to criminal plotting. The alleged “plotting” is interrupted by the
individual talking to, and attending to, one of his dogs that became ill and a tangent where
the individual and TGF appear to banter about him sharing his pretzel with his dog, but not
with TGF. The LSO takes as a serious threat that the individual is heard on the tape saying
the he would blow the ex-boyfriend’s head up like a watermelon. However, the transcript
reveals the individual’s initial comment, shortly after TGF commenced recording the on-
going conversation, was that he would kill the ex-boyfriend by twisting his head until it
“pops right off.” Ex. 19. Based on the context and tone of the conversation, that does not
sound like a plot to commit a murder. It is then TGF who first introduces weapons and
shooting into the conversation: “To sit there and say that you would shoot somebody in the
head while you’re sitting there eating… bullets in the head, you said you’d kill him, I
assume you meant shoot him.” Id. At which point the individual appears to take up her
suggestion in a bantering way: “Why, yeah, shoot him in the head. Blow his fucking head
up like watermelon. Poof! I assume there’s nothing but a void there instead of brains
(indiscernible) blow him up. [Name] head everywhere. About the consistency of my
pretzel….” Id. At no point during the conversation does either party appear to get angry or
emotionally charged11 as one might expect if people were actually discussing the potential
murder of someone that the individual is being portrayed as viewing as a rival. At some
point during the conversation, the individual became aware that TGF was recording the
conversation and at the end of the conversation says to TGF: “Or did you decide to sit there
and record that entire conversation?” To which TGF responded: “I don’t have a voice
recorder.” Id. If the individual had actually been discussing a potential murder, his tone
and choice of words would have been substantially different if he believed it was being
recorded.
11 My conclusions with respect to the intent of the parties is also consistent with the comments made by the
mental health experts with respect to Audio Recording One: (1) the written evaluation of the DOE psychiatrist
states that TGF “seemed unusually comfortable with the interaction and had similar profane language” (Ex.
11 at 5); and (2) the individual’s forensic psychologist testified that the individual and TGF seemed to be
“fooling” with one another, that TGF did not seem to be afraid, and that no crime seemed to be being planned
(Tr. at 111-112).
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TGF contemporaneously12 emailed her mother that TGF had recorded the individual telling
her that he will kill her ex-boyfriend if she goes back with him and that, if the individual
“messes” with her, she will give the recording to the police. Ex. 13 at 9. If this had been a
serious threat to murder someone, a more appropriate response would have been to warn
the potential victim or law enforcement of the threat, not a self-congratulatory comment
for adding another arrow to her quiver.
For the reasons set forth above, I conclude that Audio Recording One is a bantering
conversation and does not evidence threatening, plotting, or a propensity to commit a
murder. Therefore, I accept as credible the individual’s explanation of the conversation and
find that any Criterion F security concerns with respect to the individual’s statements in
Audio Recording One are sufficiently resolved.
Attempting to Control TGF. The final Criterion F security concern set forth in the
Notification Letter is based upon two of the individual’s statements during the PSI about
his relationship with TGF: (1) TGF was realizing that the individual was “… not that bad
of a person that she thought. Like I guess she thought I was trying to uh, control who she
would talk to …” and (2) in response to a question as to whether TGF is free to go anytime
she pleases, “… I don’t go and check on her or anything like that, by no means.” To
evidence that these are false statements, the Notification Letter cites portions of TGF’s
comments to a university police officer, two emails TGF sent to her mother, and another
audio recording of a conversation between the individual and TGF that TGF had secretly
recorded. Ex. 4, Encl. 1 at 5-6.
A security concern arises under Criterion F when a person intentionally falsifies or omits
significant information during the DOE access authorization process. The first statement
cited in the Notification Letter is the individual’s conclusions about what his girlfriend
thought about his behavior; the second statement concerns whether or not the individual
“checks on” his girlfriend. Neither statement relate to significant information that is
“relevant to a determination regarding eligibility for DOE access authorization.” 10 C.F.R.
§ 710.8(f).
Even if such statements related to significant information, the record does not support a
conclusion that they were false. The Notification Letter largely relies on statements made
by TGF outside of this administrative proceeding (i.e., TGF’s emails, which her mother
delivered to the LSO and TGF’s statements made to a university police officer) to evidence
the falseness of the individual’s statements. However, as a general matter, I could find no
credible corroboration for TGF’s statements to her parents which they subsequently
reported to the LSO; conversely, several credible witnesses provided testimony at the
12 I have concluded that the email is contemporaneous (or nearly contemporaneous) with the recorded
conversation notwithstanding the manner on which they have been dated by TGF or her mother. The email
is dated June 13, 2014. Ex. 13 at 9. Audio Recording One is dated November 28, 2013; however, the
individual contest the accuracy of that date and testified that the dog he refers to by name in the recording he
did not have until the following April. Ex. 14; Tr. at 181.
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hearing that contradicted information in TGF’s hearsay statements to her mother.13
Additionally, TGF’s testimony at the hearing on at least one significant matter was opposite
the testimony of a more credible witness.14 For these reasons, I have concluded that TGF’s
statements are largely unreliable and I have assigned de minimus weight to those
documents introduced into the record consisting of TGF’s statements outside of the
hearing. See 10 C.F.R. § 710.25(h).
The audio recording presents a conundrum. See Ex. 14. Similar to the audio recording
previously discussed, Audio Recording Four is a portion of a conversation between the
individual and TGF which TGF recorded without the individual’s knowledge. It’s unclear
when the conversation occurred: the audio recording is dated on a date that the individual
testified that he was out-of-state. See Ex. 14; Tr. at 201. The recording is of an argument
between TGF and the individual which occurred on an evening on which TGF decided to
go out with a friend rather than keeping a commitment she had made the prior week to go
with the individual to the gym and out to eat. While the recording evidences the individual
arguing and telling TGF when she needed to return home that evening, it presents stronger
evidence that TGF felt perfectly safe to disregard the individual’s wishes by breaking their
plans and, instead, going out with her friend who had called earlier that evening. I also note
the comment by the DOE psychiatrist in his written evaluation that in these audio
recordings that TGF “seemed unusually comfortable with the interaction and had similar
profane language [as the individual].” Ex. 11 at 5. However, even if I were to conclude that
13 The information provided to the LSO by TGF’s parents included both (1) emails and text messages from
TGF to her mother and (2) conversations between TGF’s parents and the LSO, which the LSO memorialized
in the individual’s security file. While the Part 710 Regulation permits me to admit such out-of-court
statements (hearsay) into the record, it also requires that appropriate weight be accorded to such evidence.
10 C.F.R. § 710.25(h). The information that was received through TGF’s parents included reports of
conversations among TGF, the individual, and third parties. Three of those third parties testified as witnesses
at the hearing (the individual’s parents and his union representative) and my examination of them included
an attempt to corroborate conversations, in which one or more of them had been a participant, that TGF
reported to her mother. In each case, I was unable to corroborate the conversations. Most notably, TGF
reported to her mother that she and the individual had met with the union representative and the union had
agreed to retain separate attorneys for TGF and the individual. Ex. 17. The union representative testified that
while he had met with the individual and TGF, that the conversation did not include any agreement for legal
representation, that the union rarely retains counsels for its bargaining unit members and that, even if it did,
TGF was not a member of the bargaining unit. Tr. at 128-131. Additionally, I have concerns about the
authenticity of the email/messages forwarded to the LSO by TGF’s mother. For example, on the date the
individual was given a trespass warning for being on a university campus, there are two emails from TGF to
her mother. The first thanked her parents for intervening and contacting the university about the individual
coming to the campus (purported electronically date/time stamped that day at 8:31pm) and the second
(purportedly electronically date/time stamped that same day at 10:10pm), informed her parents that the
individual had had the day off and had come to class with her and apologized for the delay in responding to
them, explaining that there had been a multi-fatality collision on the expressway and, after three hours, she
had finally gotten home at 9:00pm. Ex. 13 at 30, 31. These two emails could not have been sent as purported,
especially since TGF testified that she had driven her and the individual home from the university that night
in her car. At the hearing, she agreed that it would not have made sense to have written both emails the same
day, but offered no plausible explanation for inconsistencies. Tr. at 313.
14 See footnote 16, infra.
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the individual was trying (unsuccessfully) to control TGF’s behavior during this
conversation, the question and response in the PSI are not specific enough to support a
conclusion that the individual deliberately made a false statement during the PSI and, as
noted earlier, the individual’s response is not about significant information on a matter that
is relevant to a determination regarding eligibility for DOE access authorization. See
10 C.F.R. § 710.8(f).
For the above reasons, I find that the individual has sufficiently resolved the Criterion F
security concerns set forth the Notification Letter regarding his statements during the PSI
about his relationship with TGF.
B. Administrative Judge Evaluation of Evidence and Findings of Fact:
Criterion H Security Concerns
Following the PSI, the individual was referred to a DOE consulting psychiatrist for a
psychiatric evaluation. The DOE psychiatrist reviewed documents provided by the LSO
prior to the evaluation, including the transcript of the PSI, the audio recordings, emails
purportedly written by TGF that were provided to the LSO by her mother, and the LSO’s
summaries of contacts between the LSO and TGF’s parents; additionally, the DOE
psychiatrist conducted a one hour, 45-minute examination of the individual in May 2015.
Following that examination, the DOE psychiatrist issued a written evaluation of the
individual in which he concluded that the individual met the DSM-5 diagnostic criteria for
both Paranoid Personality Disorder and Antisocial Personality Disorder and that these are
illnesses or mental conditions which cause, or may cause, a significant defect in the
individual judgment or reliability. Ex. 11 at 14. This written evaluation is the basis for the
Criterion H security concern set forth in the Notification Letter. Ex. 4, Enc. 1 at 7.
As a result of my review and analysis of the DOE psychiatrist’s written evaluation, I have
significant concerns about the evaluation itself. The testimony of DOE psychiatrist at the
hearing amplified, rather than alleviated, my concerns. See Tr. at 319-352.
As an initial matter, the DSM-5 diagnostic criteria for Paranoid Personality Disorder
require a finding that a person exhibits a “pervasive distrust and suspiciousness of others
such that their motives are interpreted as malevolent, beginning by early adulthood and
present in a variety of contexts…” and, for Antisocial Personality Disorder, a finding that
a person exhibits “a pervasive pattern of disregard for violation of the rights of others,
occurring since the age 15….” DSM-5 at 646, 659 (emphasis added). However, the DOE
psychiatrist’s written analysis in support of his diagnoses (labelled “Discussion” in his
written evaluation) focuses exclusively on the period of the individual’s life during which
he was involved with TGF, a period of approximately two years preceding the evaluation,
and contains no discussion of information from earlier periods of the individual’s life. See
Ex. 11 at 11-13. The DOE psychiatrist discussed the individual’s relationship to TGF (and
related individuals) and events occurring during the investigation of the individual’s
eligibility for access authorization, however, he did not discuss the individual’s
psychological functioning in any other context, such as work, social or family. See Ex. 11.
The absence of data from across the individual’s lifespan and from various contexts of his
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life seems incompatible with a diagnosis of a personality disorder, which the DSM-5
defines as “an enduring pattern of inner experience and behavior that deviates markedly
from the expectations of the individual’s culture, is pervasive and inflexible, has an onset
in adolescence or early adulthood, is stable over time, and leads to distress or impairment.”
DSM-5 at 645.
At the hearing, the DOE psychiatrist acknowledged that it “is absolutely right that in order
to come up with a personality disorder, one should get … [psychological data about an
individual] longitudinally.” Tr. at 323. The DOE psychiatrist testified that the only way, in
his opinion, to get such data is by “getting collateral history,” and that DOE policies
prevented him from contacting such collateral sources. In response to my specific
questioning, the DOE psychiatrist testified that there was nothing in his evaluation of the
individual or that he had subsequently learned about the individual that allowed him to
conclude the individual exhibited any of criteria of the personality disorders since early
adulthood or age 15 and, further, he specifically testified that he had no actual findings that
supported such conclusion. Id. at 347-348.
The DOE psychiatrist testified that he had understood earlier guidance from DOE as
requiring that he reach a conclusion on cases sent to him. DOE counsel asked, absent that
understanding, did he feel he could “make a diagnosis with what [he had] here?” The DOE
psychiatrist responded. “No, I don’t.” Id. at 350. Notwithstanding, the DOE psychiatrist
testified that he was not withdrawing his diagnosis. Id. at 351. His final comment on the
witness stand was that he could not make a definitive diagnosis. Id. at 352. Common-sense
judgment precludes the reconciliation of these responses by the DOE psychiatrist. See
10 C.F.R. § 710.7 (a).
Additionally, I cannot reconcile the diagnoses of two significant personality disorders (i.e.,
disorders which are defined in the DSM-5 as “pervasive and inflexible” (DSM-5 at 645))
with the DOE psychiatrist’s prognosis, which was elicited through direct questioning by
DOE counsel at the hearing, that the individual “is a pretty solid guy” and has “a relatively
good prognosis … given a more stable woman.” Tr. at 333. This assessment of the
individual is far more consistent with the conclusions of the individual’s forensic
psychologist, which are discussed below.
The DOE psychiatrist’s written evaluation states that “the vast majority of the conclusions
[contained therein] are made on the basis of gathered information and not based in the
evaluation interview per se.” Ex. 11 at 11. He testified that this was “not a bit normal. Like
I said, I felt like I was given this pile of information, make a judgment on the basis of
everything that you have access to, for the betterment of the country and national security.
And try to be definitive about doing it. And I didn’t get much from our interview. I had to
patch it together with the little bit of information I had from other sources. And that is the
best I could come up with.” Tr. at 341. Amongst the concerns that this raises is that the
psychiatrist accepted as valid information from third parties which is of questionable
credibility (e.g., the TGF’s emails and text messages provided by her mother and her
mother’s reports to the LSO) and that he may have misunderstood his role in a Part 710
proceeding.
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In the written evaluation, the DOE psychiatrist concludes that the individual met various
of the sub-criteria for each of the diagnosed personalities disorders; however, the written
evaluation does not correlate the criterion found by the psychiatrist to be present in the
individual to specific psychological data. Even the general discussion, which is intended
to support these findings, raises concerns. For example, the evaluation states that “there are
glaring issues that form the basis of concern” and that “the first is that of truthfulness.” Ex.
11 at 11. Cited as the most notable example is that the subject stated during the psychiatric
interview that he had been granted permission to have a union representative present during
the psychiatric interview, but had declined that opportunity. Id. at 9, 11. The psychiatrist
characterized this as “blatantly false.” Id. at 11-12. This conclusion is contradicted by
emails between DOE counsel and the individual’s counsel that were admitted into the
record; the individual’s characterization was actually correct. See Ex. C.
In the written evaluation, the DOE psychiatrist noted that the individual “admitted to
consulting with attorney, [name].” Ex. 11 at 9. When I asked the DOE psychiatrist at the
hearing as to the relevance of this information, he testified that “it is kind of a relevant
thing to know the level of his suspicion or his paranoia or his litigiousness.” Tr. at 345.
Here, the individual’s exercise of his right to legal representation in a Part 710 proceeding
is being used to evidence a personality disorder that forms a basis of the Part 710
proceeding. This is unacceptably tautological. We cannot validate such logic in an
administrative review hearing as it could exert an inappropriate and chilling effect on
individuals exercising their right to representation under the Part 710 regulation.
For these reasons, I find that the DOE psychiatrist’s written evaluation of the individual is
unpersuasive. However, the individual, who had had no mental health evaluations or
treatments prior to the commencement of the LSO’s investigation, engaged a forensic
psychologist to evaluate him following his receipt of the DOE psychiatrist’s written
evaluation. Ex. A; Tr. at 199. The individual’s forensic psychologist is a duly qualified
mental health expert, whose experience includes work for a state corrections system
performing psychological evaluations of life-term inmates with respect to their suitability
for parole. Ex. A at 1. The forensic psychologist conducted an evaluation of the individual,
which included administration of psychological testing. The individual’s psychological test
results scored as valid and indicated that the individual has no somatic, cognitive, thought,
or behavioral dysfunctions and is less likely than most individuals to act out anger. Id. at
8. The forensic psychologist concluded that the individual is free from psychopathy and,
at the hearing, he testified that the individual did not have an illness or mental condition
which causes, or may cause, a significant defect in judgment or reliability. Id.; Tr. at 126.
The written evaluation and testimony of the individual’s forensic psychological were
credible and persuasive.
Based on the forgoing, the individual has sufficiently resolved the Criterion H security
concerns.
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C. Administrative Judge Evaluation of Evidence and Findings of Fact:
Criterion L Security Concerns
The Notification Letter cites eight instances of conduct by the individual as constituting a
history or pattern of criminal activity that creates doubt about the individual’s judgment,
reliability and trustworthiness. Ex. 4, Encl. 1 at 7-9. Prior to the hearing, DOE stipulated
that seven of those instances did not fall within Guideline J (Criminal Conduct) of the
Adjudicative Guidelines and should not be considered in this administrative review
proceeding. Tr. at 10. As a result, there is a single incident cited by the LSO as the basis
for the Criterion L security concerns.15
In May 2015, an altercation occurred between the individual and TGF at the individual’s
residence. The altercation occurred at approximately 7 a.m. as the individual was preparing
to leave for work. Both the individual and TGF agree that the altercation related to TGF’s
cell phone, TGF’s preventing the garage door from opening so that the individual could
leave for work, and a device (which may or may not have been a weapon) which the
individual pointed at TGF. Id. at 195-198, 221-224, 235, 268-275. Subsequently, both the
individual and TGF left the residence at different times and went to their respective places
of employment. Id. at 273.
Unbeknownst to either the individual or TGF, the individual’s parents (both of whom
testified at the hearing) had arrived from out of state that day and were parked waiting for
TGF to leave for work and their son to return from work. Id. at 136-137, 144. When the
individual and TGF had visited his parents approximately six months earlier, TGF had used
his mother’s computer and not logged out of an email account. Id. at 138, 159-160. As a
result, TGF’s email account continued to open on the computer and, through the emails
between TGF and her mother, the individual’s mother was aware of the nature of the
communication about her son that was occurring between TGF and her mother. Id. at 138-
139. Recent emails had indicated that TGF planned to vacate the individual’s residence the
following week and to involve the police to “supervise” her move. As a result, the
individual’s parents arrived unannounced to intervene and provide orderly assistance for
TGF to vacate the individual’s home. Id. at 136, 144-146. While TGF was at work, the
individual’s parents packed all of TGF’s belongings so that she could move that evening.
Id. at 136-138, 157-158.
Three and one-half days later, TGF filed a domestic violence report with a local law
enforcement agency based upon the altercation between her and the individual prior to his
parents’ staged intervention. See Ex. 15. Both TGF and the individual agree that the police
did not investigate the incident and that the police did not contact the individual regarding
the report. Tr. at 199, 225, 234-235, 276, 283-284.
15 The sole Criterion L security concern to be considered in the administrative review hearing, based upon
DOE’s stipulation, is Item III. H. in the Notification Letter. See Ex. 4, Encl. 1 at 8-9; Tr. 10.
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The individual and TGF disagree on many of the details of the altercation. As previously
noted, TGF testified at the hearing pursuant to a subpoena requested by the individual;
prior to the hearing they had had no contact following TGF’s moving from the individual’s
residence, other than a single exchange of emails (initiated by TGF) on the weekend
following her move (seven months prior to the hearing). Ex. D-1; Tr. at 198-199, 277-281,
316. Although I acknowledge that the circumstances of her appearance at the hearing were
undoubtedly stressful for her, TGF’s testimony frequently lapsed into the theatric,
including overly dramatic gestures. Her testimony itself differed from that of the individual
on many points beyond those related to their final altercation, which would not be
unexpected under the circumstances. More troubling is that her testimony differed from
others, including that of the DOE contractor employee,16 to such an extent that I believe
portions of her testimony were knowingly untruthful. For these reasons, I have concluded
that her testimony was generally not credible and, therefore, on contested factual matters I
have given her testimony de minimus weight. In light of my concerns about TGF’s
credibility, I accept the individual’s version of their final altercation as factually correct.
Even in the individual’s version, he acknowledges that he pointed a device at TGF when
she was preventing his garage door from opening and his leaving for work. He testified
that it was stun gun that had never been charged and was incapable of harming her. Id. at
223-224. The LSO, while limiting the Criterion L concerns to criminal activity, presented
no authority that such action constitutes criminal behavior in the relevant jurisdiction.
Additionally, TGF testified that, after she had blocked the individual from leaving his
garage and he had pointed what she believed was a weapon at her, she said “you better
shoot me then because you are not leaving” and, accompanying this testimony,
demonstrated that she had flung her arms outwards. Id. at 272. TGF stated that after leaving
the garage, they continued their argument inside the house. Ex. 15 at 2. Based on TGF’s
testimony, I cannot conclude that she felt in imminent danger from the individual’s
pointing a device at her and, therefore, I conclude the incident alleged in the Notification
Letter does not likely constitute criminal conduct. To the extent that pointing a device that
looks like a weapon is a criminal offense in the relevant jurisdiction, I note that this
occurred in the course of a tumultuous relationship that has now ended without any
evidence of similar conduct in any of the individual’s other relationships. I therefore find
that it is conduct that is unlikely to recur and, therefore, does not cast doubt on the
individual’s reliability, trustworthiness or judgement. Cf. Adjudicative Guidelines at
Guideline J, ¶ 32(a).
16 TGF testified that she filed a formal sexual harassment complaint against the DOE contractor employee
with a DOE employee concerns program (ECP) and that she was notified by the ECP that the officer was
reprimanded. Tr. at 265, 295, 310-311. The security officer, while acknowledging having sent a text message
to TGF that was sexually suggestive and an email request for a nude photograph and having been the subject
of a sexual harassment claim while working for a prior employer decades earlier, credibly testified that no
claim had been filed against him with respect to sexually harassing TGF. Id. at 242-243, 252-253. To accept
TGF’s testimony as accurate, I would need to both reject the highly credible testimony of the DOE contractor
employee and conclude that the DOE ECP violated policy by both accepting a complaint from someone not
employed in the DOE complex and subsequently discussing disciplinary action taken against an employee. I
cannot reach those conclusions.
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Based on the foregoing, the individual has sufficiently resolved the Criterion L security
concerns.
V. Conclusion
In the above analysis, I have found that there was derogatory information in the possession
of the DOE that created a reasonable basis on which to raise security concerns under
Criterion F, Criterion H and Criterion L. 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 resolve the security concerns associated
with Criterion F, Criterion H and Criterion L. Accordingly, I have determined that the
individual’s access authorization should be restored. The parties may seek review of this
Decision by an Appeal Panel under the regulations set forth at 10 C.F.R. § 710.28.
Wade M. Boswell
Administrative Judge
Office of Hearings and Appeals
Date: May 10, 2016