PSH-18-0084

*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: December 6, 2018 ) Case No.: PSH-18-0084
)
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Issued: February 12, 2019
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Administrative Judge Decision
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Brooke A. DuBois, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXX (hereinafter referred to as “the
Individual”) to hold an access authorization under the Department of Energy’s (DOE) regulations,
set forth at 10 C.F.R. Part 710, entitled, “Criteria and Procedures for Determining Eligibility for
Access to Classified Matter or Special Nuclear Material.”1 For the reasons set forth below, after
carefully considering the record before me in light of the relevant regulations and the National
Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information
or Eligibility to Hold a Sensitive Position (June 8, 2017) (Adjudicative Guidelines), I conclude
that the Individual’s security clearance should not be restored.
I. BACKGROUND
The Individual is employed by DOE in a position that requires her to hold a security clearance. In
January 2018, the Individual reported that in December 2017 she was stopped by the police and
charged with misdemeanor possession of a schedule IV drug, misdemeanor possession of more
than two ounces of marijuana, speeding at 77 miles per hour in a 60 miles per hour zone, and
driving without a valid license. Ex. 4. Based on her self-report, the Local Security Office (LSO)
conducted a personnel security interview (PSI) with the Individual in February 2018. Ex. 10.
The LSO informed the Individual, in a letter dated November 1, 2018 (Notification Letter), that it
possessed reliable information that created substantial doubt regarding her eligibility to hold a
security clearance. In an attachment to the Notification Letter, the LSO explained that the
1 Under the regulations, “access authorization” means 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 also be referred to in this Decision as a security clearance.
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derogatory information raised security concerns under Guideline E (Personal Conduct) and
Guideline J (Criminal Conduct). Ex. 1.
The Individual requested an administrative review hearing pursuant to 10 C.F.R. Part 710. Ex. 2.
The Director of the Office of Hearings and Appeals appointed me as the Administrative Judge in
this matter, and I subsequently convened a hearing pursuant to 10 C.F.R. § 710.25(d), (e) and (g).
The LSO submitted 15 numbered exhibits (Ex. 1-15) and the Individual submitted 16 lettered
exhibits (Ex. A-P). The Individual presented only her own testimony, and the LSO presented no
witnesses. See Transcript of Hearing, Case No. PSH-18-0084 (hereinafter cited as “Tr.”).
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
As indicated above, the Notification Letter informed the Individual that information in the
possession of the DOE created a substantial doubt concerning her eligibility for a security
clearance. That information pertains to Guidelines E and J of the Adjudicative Guidelines. Ex. 1.
Guideline E concerns information that an Individual has engaged in “conduct involving
questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and
regulations [which] can raise questions about an individual’s reliability, trustworthiness and ability
to protect classified or sensitive information.” Guideline E at ¶ 15. In invoking Guideline E, the
LSO cited the Individual’s failure to timely report the December 2017 incident to DOE within five
working days and the Individual’s admission that she was present while an individual used
marijuana despite signing a DOE Drug Certification form in April 2009 certifying that she would
not “knowingly [be] in the presence of others who are in the possession of these illegal drugs.” Ex.
1 at ¶ II. The Individual’s failure to timely report her charges and association with a drug user
despite signing the drug certification justifies the LSO’s invocation of Guideline E. Guideline E at
¶ 16(f)-(g).
The LSO also cited Guideline J in suspending the Individual’s security clearance. Criminal activity
creates doubt about a person’s judgment, reliability, and trustworthiness. Guideline J at ¶ 30. By
its very nature, it calls into question a person’s ability or willingness to comply with laws, rules
and regulations. Id. As the basis for invoking Guideline J, the LSO cites (1) the December 2017
charges for misdemeanor possession of a schedule IV drug, misdemeanor possession of more than
two ounces of marijuana, speeding at 77 miles per hour in a 60 miles per hour zone, and driving
without a license; (2) the Individual’s November 2016 arrest for Driving Under the Influence
(DUI); and (3) a January 2015 domestic disturbance in which the Individual admitted to slapping
her then husband across the face resulting in her being charged with “Assault: on a family
member.” Ex. 1 at ¶ I. These criminal charges justify the invocation of Guideline J. Guideline J at
¶ 31(a)-(b).
III. REGULATORY STANDARDS
**This document contains information which is subject to withholding from disclosure under 5 U.S.C. § 552.**
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A DOE administrative review proceeding under Part 710 requires me, as the Administrative Judge,
to issue a Decision that reflects my comprehensive, common-sense judgment, made after
consideration of all 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).
The individual must come forward at the hearing with evidence to convince the DOE that granting
or restoring access authorization “will not endanger the common defense and security and will be
clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). 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
In December 2017, the Individual was driving herself and a friend in a rental car when a police
officer pulled her over for speeding. Ex. 10 at 10. After running the Individual’s driver’s license,
the police officer told the Individual that her license was not valid, stating that the search also
revealed multiple prior marijuana offenses, and asked to search her vehicle. Id. While maintaining
that she had never been arrested for marijuana possession, the Individual allowed the police officer
to search her car. Id. During the search, the police officer discovered marijuana in the Individual’s
friend’s backpack and a pill bottle in the Individual’s purse. Id. at 10, 37. According to the
Individual, the police officer stated that he could not read the label on the medication and that he
did not believe it was a valid prescription. Id. at 34. The police officer gave the Individual a citation
for speeding, driving without a valid license, possession of a Schedule IV substance, and
possession of marijuana2, but did not arrest her. Id. at 13.
After this incident, the Individual stated that she immediately went to her local department of
motor vehicles (DMV) to inquire about the status of her driver’s license. Id. at 23. Because the
police officer took the Individual’s license after claiming it was invalid, the DMV issued the
Individual a new license on that date. Id; see also Ex. M. During her PSI, the Individual stated that,
because of her 2016 DUI, she had a restricted license, but that the month before this incident, in
November 2017, she was issued an unrestricted license after completing the requirements of her
plea agreement. Id. at 21; Ex M at 2. Approximately a month after this incident, in January 2018,
the Individual reported the four charges against her to DOE. Ex. 4.
During the PSI, the Individual stated that although she knew her friend recreationally used
marijuana, she did not know until the car was searched that he had any marijuana with him. Id. at
2 According to the Individual, both she and her friend were charged with the possession of marijuana. Id at 36.
**This document contains information which is subject to withholding from disclosure under 5 U.S.C. § 552.**
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36, 38. She stated that her friend knew she did not use drugs so he did not use marijuana around
her. Id. at 38. The Individual later admitted that approximately two months prior to the PSI she
was around this same friend when he had a marijuana edible. Id. at 39. Around this time as well,
the Individual was with this friend, when he and another person smoked marijuana. Id. at 40.
Although she acknowledged she was aware that her friend was smoking marijuana in the house,
the Individual stated that she was in another room when this occurred. Id.
At the hearing, the Individual testified that she was recently divorced after being in an abusive
marriage for approximately eight years. Tr. at 10; see also Ex. N. The Individual testified that in
2015, during a physical assault by her husband, she slapped him then left, which led to her being
arrested on a warrant for assault with the charge later being dismissed. Tr. at 20. She further stated
that, in November 2016, she was in the process of separating from her husband, when she went
out to drink with her brother and, on her drive home, was arrested for DUI. Tr. at 18. She testified
that because she was arrested in both instances, she understood that she had to report them to DOE
and did so in a timely manner. Tr. at 29-30.
When asked why she waited a month to report the December 2017 incident, the Individual testified
that because she was not arrested, she did not believe she had to report. Tr. at 20-21. The Individual
further testified that she began to doubt whether this incident was reportable when she went to
court and the charges were not immediately dismissed. Tr. at 35. She then raised the question to
security personnel and subsequently reported the incident. Tr. at 30-31. The Individual stated that
she eventually pled guilty to speeding with the other charges being dismissed because the
marijuana was in her friend’s possession and she provided proof of her valid prescription and the
previous reinstatement of her unrestricted driver’s license. Tr. 17, 26, 28.
The Individual reiterated during the hearing that although she knew her friend used marijuana, she
was not aware that her friend had marijuana in his backpack on this particular day in December
2017. Tr. at 22, 31-32. She testified that the only time she was around this friend when he used
marijuana was at a party with approximately 50 people and that she was not in the same room as
him while he used the drug. Tr. at 22-23, 32. The Individual stated that since the December 2017
incident, she no longer associates with this friend. Tr. at 32-33.
During the hearing, the Individual acknowledged signing the DOE Drug Certification in 2009 and
justified her continued friendship with a known drug user by stating that, except for one time, she
did not associate with him when he was actively using drugs. Tr. at 33. The Individual submitted
as exhibits three signed “Statements of Intent” declaring, among other things, her intention to not
use illegal drugs or be around anyone who engages in illegal drug use. Ex. E. When questioned
why this Statement of Intent should be given more consideration than the 2009 DOE Drug
Certification, the Individual stated that she has matured since 2009 and that she no longer
associates with the same people. Tr. at 36.
V. ANALYSIS
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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) and the Adjudicative Guidelines. After due deliberation, I have
determined that the Individual’s security clearance should not be restored. 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).
a. Guideline J
Under Guideline J, an individual can mitigate security concerns by demonstrating that: (1) so much
time has elapsed since the criminal behavior happened, or it happened under such unusual
circumstances, that it is unlikely to recur and does not cast doubt on the individual’s reliability,
trustworthiness, or good judgment; (2) the individual was pressured or coerced into committing
the act and those pressures are no longer present in the person’s life; (3) there is no reliable
evidence to support that the individual committed the offense; or (4) there is evidence of successful
rehabilitation; including, but not limited to, the passage of time without recurrence of criminal
activity, restitution, compliance with the terms of parole or probation, job training or higher
education, good employment record, or constructive community involvement. Guideline J at ¶
32(a)-(d).
In this case, the LSO lists three relatively minor criminal offenses from 2015, 2016, and 2017. In
regard to the December 2017 incident, the Individual presented evidence and testimony that she
did not commit at least two of the charged offenses. Ex. M, Ex. J; see also Tr. at 26-29. She also
testified credibly that she did not know her friend had marijuana in his possession this day and that
she no longer associates with this friend. Tr. at 32. Additionally, the Individual claimed that her
decision to drink and drive in 2016 stemmed from the stress of the dissolution of her marriage. Tr.
at 18. Because her divorce has now been finalized, that stressor is no longer present in the
Individual’s life. The Individual had no alcohol related incidents before this DUI, complied with
all the terms of her plea agreement, and testified that since this incident, she has decreased her
alcohol intake. Tr. at 27-28. Lastly, the Individual’s 2015 arrest for slapping her abusive ex-
husband during a domestic incident was an isolated incident almost four years ago.
Although three criminal incidents may in some circumstances be indicative of a pattern of criminal
conduct, I find that there is reliable evidence that at least two of the above offenses did not occur
and that the unique circumstances of each of these criminal offenses make them unlikely to recur.
Guideline J at ¶ 32(a), (c). Accordingly, I find that the Individual successfully mitigated the
Guideline J security concerns.
b. Guideline E
An individual can mitigate Guideline E security concerns by showing that 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. Guideline E at ¶ 17(c). In this case, the Individual’s testimony
that she did not believe this incident was reportable since she was not arrested, although incorrect,
**This document contains information which is subject to withholding from disclosure under 5 U.S.C. § 552.**
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was reasonable. Tr. at 20-21. Her testimony is strengthened by the fact that she previously timely
reported both the 2015 assault arrest and the 2016 DUI arrest. Tr. at 29-30. After going to court,
the Individual realized the seriousness of her charges, she inquired about whether she needed to
report the incident, and subsequently made the disclosure. Tr. at 30-31, 35.
An individual can also mitigate Guideline E security concerns by demonstrating that the
association with persons involved in criminal activities was unwitting, has ceased, or occurs under
circumstances that do not cast doubt upon the individual’s reliability, trustworthiness, judgment or
willingness to comply with rules and regulations. Guideline E at ¶ 17(g). In 2009, the Individual
signed a DOE Drug Certification stating that she would not knowingly be in the presence of others
who are in the possession of illegal drugs. Ex. 9. During the PSI in which she signed this form, the
interviewer stated: “That includes…if you’re at a party and you walk in and there’s drugs there,
you need to…leave.” Ex. 15 at 31. During her PSI, the Individual admitted that she was around a
friend while he ate a marijuana edible, and, during the hearing, the Individual testified that, during
a party, she was in the same house as this friend while he was smoking marijuana. Ex. 10 at 39;
Tr. 22-23, 39-40. Although the Individual’s association with this person has now ceased, her
previous association with him despite knowing he was a marijuana user and her presence around
him while he used marijuana casts doubt upon her reliability, trustworthiness, judgment, or
willingness to comply with rules and regulations.
Although I find that the Individual mitigated the Guideline E security concern as it pertains to her
untimely reporting of the December 2017 incident, none of the mitigating factors applies to the
security concern associated with the Individual’s presence while someone used illegal drugs after
signing the DOE Drug Certification form. Therefore, I cannot find that the Individual has mitigated
the security concerns under Guideline E.
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 E and Guideline J of the Adjudicative
Guidelines. 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 under Guideline E.
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.
Brooke A. DuBois
Administrative Judge
Office of Hearings and Appeals
**This document contains information which is subject to withholding from disclosure under 5 U.S.C. § 552.**