PSH-17-0069

*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: September 26, 2017 ) Case No.: PSH-17-0069
)
_________________________________________ )
Issued: January 9, 2018
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Administrative Judge Decision
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William M. Schwartz, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXX (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 “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 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 have
determined that the individual’s access authorization should not be restored at this time.
I. Background
The individual is employed by a DOE contractor and has held a security clearance for several
years. In May 2015, the individual was arrested for stalking. During a Personnel Security Interview
(PSI) conducted in August 2015, the individual denied knowing the victim, following her, or
taking videos or pictures of her. In October 2015, he pleaded guilty to stalking and was placed on
a one-year probationary period. In a second PSI, conducted in January 2016, the individual
admitted that he had not been truthful during the first PSI, in that he in fact had been aware of the
victim for many years and had filmed her on numerous occasions. He also admitted that he had
photographed other women in public places.
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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On August 14, 2017, the Local Security Office (LSO) sent a letter (Notification Letter) to the
individual advising him that it had reliable information that created a 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 Guideline E of the
Adjudicative Guidelines.
Upon receipt of the Notification Letter, the individual exercised his right under the Part 710
regulations to request an administrative review hearing, and on September 27, 2017, I was
appointed the Administrative Judge in the case. At the hearing, the individual presented the
testimony of four witnesses and testified on his own behalf. The LSO tendered 15 numbered
exhibits into the record. The exhibits will be cited in this Decision as “Ex.” followed by the
appropriate numeric designation. The hearing transcript will be cited as “Tr.” followed by the
relevant page number.
II. Regulatory Standard
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
regulations require 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 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
his 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 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 thus afforded the utmost latitude in the presentation of evidence to
mitigate the security concerns at issue.
III. The Notification Letter and the Security Concerns at Issue
As previously noted, the Notification Letter included a statement of derogatory information that
raised concerns about the individual’s continued eligibility for access authorization. The
information in the letter specifically cites Guideline E of the Adjudicative Guidelines, which
relates to security concerns arising from “[c]onduct involving questionable judgment, lack of
candor, dishonesty, or unwillingness to comply with rules and regulations” as this “can raise
questions about an individual’s reliability, trustworthiness, and ability to protect classified
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information. Of special interest is any failure to cooperate or provide truthful or candid answers
during national security investigation or adjudicative processes.” Guideline E at ¶ 15. Among the
conditions set forth in that guideline that could raise a disqualifying security concern is
“deliberately providing false or misleading information, or concealing or omitting information,
concerning relevant facts to . . . [a] security official . . . .” Guideline E at ¶ 16(b). As a basis for
invoking Guideline E, the Notification Letter cites to the individual’s admissions during the
January 2016 PSI that he was not truthful during his August 2015 PSI. Ex. 1.
These allegations adequately support the invocation of Guideline E, and they raise serious security
concerns.
IV. Findings of Fact
The individual was arrested and charged with stalking in May 2015. Ex. 12 at 5. When the LSO
questioned him about the arrest, during a PSI in August 2015, the individual reported that he was
sitting in his parked car when a Corvette parked near him. He stated that he admired the car and
took a video of it on his phone. He also stated that he was surprised when a woman got out of the
car. Two police officers then approached him and told him he was stalking the woman. He told
the police that he was a “car guy,” and that the woman “just happened to . . . get out of the car and
. . . be in part of the video.” He denied knowing anything about the woman, but admitted he had
taken photos of the car before. He later admitted to the police that he had been interested in the
woman for over a year. He was arrested, taken to the local jail, and bailed out after several hours.
Id. at 5, 7, 10, 11, 14-16. Nevertheless, later in the August 2015 PSI, he denied stalking,
photographing, or following the woman. Id. at 22.
In October 2015, the individual pleaded guilty to stalking and was given a year of supervised
probation in lieu of sentencing, the terms of which included no contact with the victim and having
his phone subject to inspection. Ex. 13 at 6, 8.
During a second PSI conducted in January 2016, the individual at first denied again that he had
been stalking the woman. Id. at 19-20. His reasoning was that he did not follow her; rather, he
knew her schedule and arrived at places before she did. Id. at 21, 32-33, 87. After the LSO
interviewer explained the concept of stalking in terms of the victim’s fear arising out of certain
behavior rather than the actor’s intent, the individual admitted that he had been stalking her, and
that he had photographed not only her car but her as well. Id. at 22-23, 29, 30, 34.
At the hearing, the individual’s mother, sister, and two of his supervisors testified. They presented
a consistent impression of the individual as a shy, quiet, responsible person who is a conscientious
worker. Tr. at 12-13, 23-24, 34, 42. The individual testified as well. When asked why he denied
any knowledge of the stalking victim during his first PSI, he stated that he was embarrassed,
frightened, not thinking straight, and concerned about possibly losing his job. Id. at 55, 58. He
conceded that he did not feel comfortable about misleading the LSO, but he did nothing to correct
his statements. Id. at 81. He also explained that at the time of that PSI, both he and the attorney
representing him on stalking charge believed that his actions did not constitute stalking, and only
after the LSO interviewer defined the term differently at the second PSI did he acknowledge that
he had been stalking. Id. at 56-57. He further testified that he has not engaged in any stalking since
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his arrest, even after successfully completing his probation, and has learned the importance of
being forthright and candid in his interactions with the LSO. Id. at 58-59, 76-78. Finally, he
demonstrated a clear understanding of how to protect classified materials, were he ever to find
himself in that position. Id. at 69-74.
V. Analysis
I have thoroughly considered the record of this proceeding, including the submissions tendered in
this case and the testimony of the witnesses 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) and the Adjudicative Guidelines. After due deliberation, I have
determined that the individual’s security clearance should not be restored at this time. I cannot find
that restoring the individual’s DOE security clearance will not endanger the common defense and
security and is clearly consistent with the national interest. 10 C.F.R. § 710.27(a). The specific
findings that I make in support of this decision are discussed below.
The LSO’s security concerns revolve around the individual’s failure to truthfully and accurately
respond to questions during his August 2015 PSI. After reviewing the facts presented in the
exhibits and elicited at the hearing, I find that the security concern is appropriate. The individual’s
inaccurate responses during that PSI served to conceal potentially derogatory information, whether
intentionally or unintentionally, placing him in a better light than he would have been had he
answered the questions accurately.
At the hearing, the individual explained his rationale for his responses that raised security concerns
in two mutually inconsistent manners. On one hand, he testified that, at the time of his August 2015
PSI, both he and his attorney believed he was not guilty of stalking, because he had not followed
his victim before photographing her, but rather placed himself at locations where he predicted she
would arrive. Tr. at 56. From my observations of the individual at the hearing, I find that he thinks
in very concrete terms, and it is credible that he believed his actions did not constitute stalking at
that time. On the other hand, when asked whether he understood his obligation to tell the truth at
the personnel security interviews, he testified that he had understood that obligation but had not
complied: “I know that I was just, for whatever reason, I wasn’t really truthful [in the first
interview]. Whether, like I said, I was embarrassed, I was afraid, or what, or a combination, I don’t
know.” Id. at 57-58. By acknowledging that he was not truthful in the first interview, the
individual implicitly admits that he was aware that his actions constituted stalking.
I have considered the mitigating factors set forth in Guideline E and cannot determine that the
individual has resolved this security concern. After misrepresenting facts during the August 2015
PSI, the individual made no attempt to correct his statements prior to being confronted with his
misinformation at the January 2016 PSI. Adjudicative Guidelines, Guideline E at ¶ 17(a).
However, once he admitted the full extent of his actions, he cooperated fully with the LSO. Id.
at ¶ 17(b). Of the remaining mitigating factors listed under Guideline E, only ¶ 17(c) is applicable
to the facts of this case: “the offense is so minor, or so much time has passed, or the behavior is so
infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not
cast doubt on the individual’s reliability, trustworthiness, or good judgment.” Id. at ¶ 17(c). From
his testimony, the testimony of others, and his comportment at the hearing, I believe that the
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individual will be extremely vigilant to avoid any actions that could possibly be viewed at stalking,
now that he has a complete understanding of the offense. However, the security concern in this
case lies not with the stalking incident itself but rather with the individual’s failure to communicate
fully and truthfully with the LSO about that incident. Complete candor with the LSO is not minor;
it is crucial to the success of the access authorization program. Although some time has passed
since the individual engaged in his misrepresentation, I am not confident how the individual would
respond if faced with new challenges in the future. In particular, while I believe he would follow
appropriate protocol with respect to handling classified material if he could clearly identify that
need, I am not convinced that he would recognize the need to do so were he placed in a situation
of some complexity. Moreover, if his behavior raised security concerns in the future, I am not
confident that he would provide complete and accurate information to those investigating it.
I must resolve any doubt as to a person’s access authorization eligibility in favor of the national
security. For this reason, I conclude that the individual has not resolved the security concerns under
Guideline E.
VI. Conclusion
Upon consideration of the entire record in this case, I find that there was evidence that raised
concerns regarding the individual’s eligibility for a security clearance under Guideline E of the
Part 710 regulations. I further find that he has not succeeded in fully resolving the concerns raised
under that guideline. Therefore, I cannot conclude that restoring the individual’s DOE access
authorization to the individual “will not endanger the common defense and security and is clearly
consistent with the national interest.” 10 C.F.R. § 710.7(a). Accordingly, I find that the DOE
should not restore the individual’s access authorization at this time.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth at
10 C.F.R. § 710.28.
William M. Schwartz
Administrative Judge
Office of Hearings and Appeals
Date: January 9, 2018