PSH-18-0028

*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: March 22, 2018 ) Case No.: PSH-18-0028
)
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Issued: June 26, 2018
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Administrative Judge Decision
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James P. Thompson, III, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXX (hereinafter referred to as “the
Individual”) to hold an access authorization under the United States Department of Energy’s
(DOE) regulations, set forth at 10 C.F.R. Part 710, Subpart A, entitled “General Criteria and
Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear
Material.”1 As discussed below, after carefully considering the record before me in light of the
relevant regulations and the National Security Adjudicative Guidelines for Determining Eligibility
for Access to Classified Information or Eligibility to Hold a Sensitive Position (June 8, 2017) (the
Guidelines), I conclude that the Individual’s access authorization should not be restored.
I. BACKGROUND
A DOE contractor employs the Individual in a position that requires him to hold a security
clearance. In June 2017, the Individual reported to his employer that he had been arrested and
charged with Aggravated Driving While Intoxicated (DWI). See Exhibit (Ex.) 4 at 1. The Local
Security Office (LSO) conducted a PSI of the Individual, and based upon information provided by
the Individual in the PSI, the LSO referred the Individual for a psychological evaluation. Id. A
DOE-contractor psychologist (“DOE psychologist”) conducted an evaluation of the Individual in
October 2017. See Ex. 3 at 1.
The DOE psychologist’s evaluation raised unresolved security concerns. Therefore, the LSO
informed the Individual, in a Notification Letter dated December 22, 2017 (“Notification Letter”),
that it possessed reliable information that created substantial doubt regarding the Individual’s
1 The regulations define access authorization as “an administrative determination that an individual is eligible for access
to classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R. § 710.5(a). This
Decision will refer to such authorization as access authorization or security clearance.
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eligibility to hold a security clearance. In an attachment to the Notification Letter, the LSO
explained that the derogatory information raised security concerns under “Guideline I,
Psychological Conditions.” Ex. 1.
The Individual exercised his right to request an administrative review hearing pursuant to 10
C.F.R. Part 710. Ex. 2. The Director of the Office of Hearings and Appeals (OHA) appointed me
as the Administrative Judge in the case, and I subsequently conducted an administrative hearing
in the matter. At the hearing, the LSO introduced eight numbered exhibits (Ex. 1–8) into the record
and presented the testimony of the DOE psychologist. The Individual introduced three exhibits
(Ex. A–C) into the record and presented the testimony of two witnesses, including himself.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY
CONCERNS
The LSO cited Guideline I, Psychological Conditions, as the basis for denying the Individual a
security clearance. Ex. 1. “Certain emotional, mental, and personality conditions can impair
judgment, reliability, or trustworthiness.” Guideline I at ¶ 27. The Notification Letter asserted that
the DOE psychologist diagnosed the Individual with “cognitive deficits of unknown origin, which
is an emotional, mental, or personality condition that can continue to impair judgement,
reliability[,] or trustworthiness.” Ex. 1. An opinion by a duly qualified mental health professional
that the Individual has a condition that may impair judgment, reliability, or trustworthiness justifies
the LSO’s invocation of Guideline I in the Notification Letter. Guideline I at ¶ 28(b).
III. REGULATORY STANDARDS
The regulations require me, as the Administrative Judge, to issue a Decision that reflects my
comprehensive, common-sense judgment, made after consideration of all of 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).
An individual must come forward at the hearing with evidence to convince the DOE that restoring
the individual’s 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). Hence, an individual is afforded the utmost latitude in the presentation of evidence to
mitigate the security concerns at issue.
IV. FINDINGS OF FACT
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On an evening in June 2017, the Individual consumed five beers and two shots of bourbon. Ex. 7
at 14–15. While attempting to drive home, the Individual lost consciousness, and his vehicle veered
off of the road and came to rest against a guardrail. Id. at 19–20. Law enforcement officers found
the Individual unconscious and transported him to a detention center to determine if the Individual
was intoxicated. Id. at 31–32. The results of the tests showed that the Individual’s breath alcohol
concentration was over the legal alcohol limit, and the Individual was charged with Aggravated
DWI. Id. at 34, 80. The Individual denied feeling impaired on the night in question, and attributed
the incident to “[falling] asleep on the road.” Id. at 17, 89–90; see also Ex. 5 at 3. Based on this
incident, the LSO required that the Individual submit to an evaluation from the DOE psychologist
concerning his alcohol consumption. See Ex. 5 at 1.
After evaluating the Individual, the DOE psychologist concluded that the Individual suffered from
“cognitive deficits of unknown origins that can impair his judgment and reliability.” Id. at 8. The
DOE psychologist based his conclusions on the results of three subtests of the Wechsler Adult
Intelligence Scale-Revised (WAIS-R),2 the Minnesota Multiphasic Personality Inventory (MMPI),
and a clinical interview during which the Individual described pertinent personal history, including
the fact that he was a passenger in a car accident which resulted in his sister’s death. Id. at 5, 6–7.
The DOE psychologist determined that the Individual’s responses to inquiries were extremely
concrete and demonstrated poor general knowledge, the Individual had significant difficulty
thinking abstractly, and the Individual minimized his problems to such an extent that it cast doubt
on his truthfulness. Id. at 6. The DOE psychologist stated that the Individual would occasionally
exercise poor judgment because his “decision making will be based on his sense of immediate
facts with little anticipation of the ramifications.” Id. at 8. The DOE psychologist also stated that
the Individual’s extreme levels of claimed virtuousness on the MMPI called into question his
trustworthiness. Id. at 6–7.3
The Individual offered testimony from himself and his immediate supervisor, as well as letters
entered into evidence, demonstrating that he is competent to perform his job and is, in many
respects, an exemplary employee. See Tr. at 15, 28; see also Exs. A, C. The supervisor testified
that the Individual is a very reliable and trustworthy employee who has become one of the
supervisor’s “go-to guys.” Tr. at 17. The supervisor also testified that the Individual is responsible
for the safety of other workers and making sure other workers comply with security prohibitions.
Id. at 18-19. Additionally, the Individual offered a letter from a Licensed Clinical Social Worker
(LCSW) who opined that the Individual did not appear to suffer from an emotional, mental, or
personality condition. Ex. B at 2.
After listening to all of the testimony offered during the hearing, including that of the Individual,
the DOE psychologist testified that he remained of the opinion that the Individual suffers from
cognitive deficits of an unknown origin that can impair his judgment and reliability. Tr. at 81-82.
However, the psychologist modified his opinion by stating that the Individual’s condition could
2 The WAIS-R test is composed of eleven subtests which measure adult intelligence, in the manner of an “IQ” test.
The DOE psychologist only subjected the Individual to the Information, Vocabulary, and Similarities subtests. Ex. 5
at 6.
3 The Individual reported on the MMPI that he is always truthful, never gets angry, and likes everyone. Ex. 5 at 6.
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be mitigated if the Individual is within a “very structured” environment. Id. The psychologist also
clarified that the Individual’s condition does not present concerns regarding the Individual’s
trustworthiness. Id. at 111-12, 119.
V. ANALYSIS
An opinion by a duly qualified mental health professional that an individual has a condition that
may impair judgment, stability, reliably, or trustworthiness may raise a security concern. Guideline
I at ¶ 28(b). In this case, the DOE psychologist stated his opinion that the Individual suffers from
cognitive deficits of an unknown origin that can impair his judgment and reliability. Ex. 5 at 8;
Tr. at 81. The Individual did not present any expert testimony to undermine the DOE
psychologist’s methodology or opinion.
Although DOE did not refer the Individual to the DOE psychologist for an evaluation of
intellectual functioning, the DOE psychologist subjected the Individual to three subtests of the
WAIS-R based on the Individual’s difficulty understanding the DOE psychologist’s questions
concerning his alcohol consumption and the concreteness of the replies that he offered.4 Ex. 5 at
6. The DOE psychologist evaluated and scored the Individual’s responses to the WAIS-R subtests,
which indicated the Individual’s “very poor general knowledge,”5 “his extreme concreteness,”6
and his “difficulty thinking abstractly.” Id.7 The DOE psychologist further explained that the
“results suggest that [the Individual] is impaired in his ability to function in an unsheltered world,”
and “people within his range of functioning have a propensity to not consider all of the options
when faced with a decision and are often unlikely to consider anything beyond the immediate
situation.” Id. At the hearing, the DOE psychologist testified that the Individual’s lack of ability
to perceive his own intoxication on the night of his arrest for Aggravated DWI, to recognize the
dangers of driving while drunk in light of the death of his sister in a car accident, or to obey the
law in the absence of supervision, illustrate the Individual’s impaired judgment. Tr. at 78–79.
The DOE psychologist’s opinion that the Individual suffers from “cognitive deficits of unknown
origin that can impair his judgment and reliability” is supported by the record and therefore raises
security concerns. Guideline I at ¶ 28(b). The Individual may mitigate these security concerns by
showing that:
4 The DOE psychologist testified that it is common practice among psychologists to draw clinical conclusions from
incomplete WAIS-R tests. Tr. at 90–91, 115–17. The Individual did not offer any testimony concerning the merits of
a clinical evaluation based on incomplete WAIS-R testing.
5 For example, “when asked on what continent was Brazil [the Individual] responded that he did not know since he
did not do well in history.” Ex. 5 at 6.
6 For example, the Individual defined the word “breakfast” as “bacon and eggs.” Id. When prompted to talk more
about breakfast, the Individual repeated “eggs and bacon.” Tr. at 107. The DOE psychologist explained that similar
answers throughout the testing demonstrated the Individual’s concreteness. See id. at 68, 107.
7 When prompted during the hearing, the Individual offered comparable responses to those the DOE psychologist
relied upon in the report. See Tr. at 33.
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(a) the identified condition is readily controllable with treatment, and the individual
has demonstrated ongoing and consistent compliance with the treatment plan;
(b) the individual has voluntarily entered a counseling or treatment program for a
condition that is amenable to treatment, and the individual is currently receiving
counseling or treatment with a favorable prognosis by a duly qualified mental
health professional;
(c) [a] recent opinion by a duly qualified mental health professional . . .
[demonstrates] that an individual’s previous condition is under control or in
remission, and has a low probability of recurrence or exacerbation;
(d) the past emotional instability was a temporary condition . . . , the situation has
been resolved, and the individual no longer shows indications of emotional
instability; or,
(e) there is no indication or a current problem.
Id. at ¶ 29(a)–(e).
None of the above criteria apply in this case. The DOE psychologist opined that the Individual’s
condition is not amenable to treatment or change. Tr. at 74. The Individual did not offer expert
testimony challenging the DOE psychologist’s findings or providing an alternative prognosis.8 Nor
did the Individual offer any evidence to the effect that he is pursuing treatment for his condition.
Consequently, I find that the Individual continues to suffer from a condition that may impair his
judgment and reliability, and that the Individual has not demonstrated the mitigation of such
condition through any of the criteria set forth in Guideline I. See Personnel Security Hearing, OHA
Case No. PSH-15-0078 (2015) (denying the restoration of a clearance to an individual who
suffered from a potentially untreatable neurocognitive disorder, diagnosed as such by a DOE
psychologist, which may cause a significant defect in judgment or reliability).9
The record clearly shows that the cognitive deficits from which the DOE psychologist determined
that the Individual suffers do not prevent the Individual from satisfactorily performing his work
for the DOE contractor. See Tr. at 15, 28; see also Ex. A, Ex. C. Furthermore, the Individual’s
testimony at the hearing described his work environment as an extremely structured one in which
he need do little more than closely follow his supervisor’s instructions to avoid negative
consequences. See id. at 26–27, 41–43, 46–47.10 However, “reliability on the job do[es] not
overcome [unmitigated] security concerns . . . .” See Personnel Security Hearing, OHA Case No.
TSO-0358 (2006) (discussing why an Individual’s history of reliability at work does not mitigate
security concerns and noting that “[t]he fact that [an adverse security event] apparently has not
occurred in the past is no guarantee that it will not occur in the future”). Furthermore, the
8 Although the LCSW’s letter opined that the Individual did not suffer from an emotional, mental, or personality
condition, the Individual did not offer information concerning the LCSW’s credentials to qualify her as an expert.
Furthermore, the LCSW’s letter provides little information as to how the LCSW reached her conclusions. Therefore,
I assigned minimal evidentiary weight to the LCSW’s letter. However, even if I were to accept the LCSW as an expert,
I would still find the DOE psychologist’s opinion to be more persuasive.
9 Decisions issued by OHA are available on the OHA website located at http://www.energy.gov/OHA.
10 When asked during the hearing what sorts of decisions he has made in the past using his independent judgment, the
Individual struggled to offer a specific example. See Tr. at 39–43, 46–48.
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obligations of a security clearance do not adhere to a particular location, but rather follow the
holder in all facets of life.
As stated above, it is the Individual’s burden to come forward with evidence to convince me that
restoring his access authorization “will not endanger the common defense and security and will be
clearly consistent with the national interest.” Based on the specific record developed in this case,
I have a doubt regarding the Individual’s ability to appreciate and satisfy the significant obligations
imposed by the possession of a security clearance. Based on the foregoing, I conclude that the
Individual has not resolved the security concerns associated with Guideline I.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
the DOE that raised security concerns under Guideline I. After considering all of the relevant
information, favorable and unfavorable, in a comprehensive, common-sense manner, including
weighing all of the testimony and other evidence presented at the hearing, I find that the Individual
has not brought forth sufficient evidence to resolve the security concerns set forth in the
Notification Letter. Accordingly, I have determined that the Individual’s access authorization
should not be restored. Either party may seek review of this Decision by an Appeal Panel pursuant
to 10 C.F.R. § 710.28.
James P. Thompson, III
Administrative Judge
Officer of Hearings and Appeals