PSH-19-0041

*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: July 29, 2019 ) Case No.: PSH-19-0041
)
__________________________________________)
Issued: November 5, 2019
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXX (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, “Procedures for Determining Eligibility for Access to Classified Matter and 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)
(Adjudicative Guidelines), I conclude that the Individual’s access authorization should be restored.
I. BACKGROUND
A DOE contractor employs the Individual in a position that requires him to hold a security
clearance. Beginning in March 2017, the Individual was issued written warnings for workplace
infractions and received citations and reprimands for traffic violations, security violations, damage
to a government vehicle, and failing to report for duty. See Ex. 1 at 3. In December 2017, the local
security office (LSO) conducted a personnel security interview (PSI) of the Individual to address
the Individual’s conduct. See id.
The PSI did not resolve the security concerns, and the LSO subsequently recommended that the
Individual undergo an evaluation by a DOE-contracted psychologist (DOE Psychologist). The
DOE Psychologist conducted a clinical interview of the Individual in January 2018, and issued a
report in which he concluded that the Individual did not demonstrate any psychological condition.
Ex. 3 at 3. However, after the Individual was issued additional reprimands at work, the LSO asked
the DOE Psychologist to opine on whether the Individual, even in lieu of a diagnosis, had
emotional, mental, and personality conditions which could impair his judgment, reliability, or
trustworthiness. The DOE Psychologist issued another report in which he indicated that, although
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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the Individual did not meet the diagnostic criteria for a psychological condition, the Individual’s
workplace conduct raised concerns as to the Individual’s trustworthiness, reliability, and veracity.
Id. at 6.
On July 2, 2019, the LSO issued the Individual a letter (Notification Letter) in which it indicated
that it possessed reliable information that created substantial doubt regarding the Individual’s
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 E (Personal
Conduct) of the Adjudicative Guidelines. 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 this matter, and I subsequently conducted an administrative
hearing. The LSO submitted twenty numbered exhibits (Ex. 1–20) into the record. The Individual
submitted nine lettered exhibits (Ex. A–I) into the record. The LSO presented the testimony of the
DOE Psychologist and the Individual presented the testimony of four witnesses, including himself.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline E (Personal Conduct) of the Adjudicative Guidelines as the basis for its
determination that the Individual was not eligible to hold a security clearance. Ex. 1.
Conduct involving questionable judgement, lack of candor, or unwillingness to comply with rules
and regulations can raise questions about an individual’s reliability, trustworthiness, and ability to
protect classified or sensitive information. Adjudicative Guidelines at ¶ 15. The Notification Letter
listed as relevant facts that, between March 2017 and October 2018, the Individual was issued a
traffic citation and issued written warnings for failure to report to overtime, failure to report to
training, and damaging a government vehicle. Additionally, the Individual had been counseled for
insubordination after refusing to follow a supervisor’s orders, for walking off of an assignment,
and for calling in sick from the parking lot. Ex. 1 at 3–4.2 The Individual’s disruptive behavior and
pattern of rule violations justify the LSO’s invocation of Guideline E. Adjudicative Guidelines at
¶ 16(d)(2)–(3).
III. REGULATORY STANDARDS
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
2 The Notification Letter identified eight additional charges against the Individual. Ex. 1 at 3. However, the
DOE Counsel stipulated at the hearing that six of these charges were mitigated by the passage of time;
another charge was mitigated by evidence that the Individual was not at fault; and finally, the last charge
was mitigated by evidence indicating that the charge was factually inaccurate. Tr. at 3–4, 15, 50. Therefore,
this Decision will not consider these eight charges.
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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 March 2017, the Individual was cited for speeding after a police officer measured him travelling
at 74 miles per hour in an area where the speed limit was 55 miles per hour. Ex. 11. At the hearing,
the Individual explained that he was trying to pass a dump truck that was spewing gravel, and in
doing so, he exceeded the speed limit in the presence of a police officer. Hearing Transcript (Tr.)
at 16. In July 2017, the Individual received a written warning for failing to report to required
training. Ex. 2 at 3. The Individual testified that he had received all of the necessary paperwork
prior to the training, but he “totally forgot that [he] had training. . . . I just forgot.” Tr. at 16.
During the hearing, the Individual acknowledged that in both of these incidents he was at fault. Tr.
at 16.
The Individual received another written warning in August 2017, after he failed to appear at his
worksite to work overtime. See Ex. 1 at 3. The Individual asserted that management had failed to
notify him that he was assigned to work the overtime shift. Id. at 13. According to the Individual,
he was scheduled to be off work on the day in question and he was never provided with notice that
he was to work overtime. Id. At the hearing, the Individual again asserted that he was not aware
he was needed to work overtime because this overtime assignment had been changed after he went
home from his worksite. Tr. at 17. He claimed that he spoke with a supervisor when he received
the written warning but, because he had not received any previous warnings, he decided not to
challenge the warning. Id. at 19.
In November 2017, the Individual was issued a written reprimand for damaging a government
vehicle. Ex. 9 at 1. According to the reprimand, the Individual kicked the trim off of a vehicle after
he slipped when trying to enter the vehicle. Id. At the hearing, the Individual confirmed that when
he slipped from the vehicle, he caused the trim to dangle from the vehicle. He stated that the driver
then tried to move the vehicle with the trim out of place. Id. However, the driver could not move
the vehicle. Because the officers onboard were going to be late for training if the van could not be
moved, the Individual removed a clip holding the trim and told the driver to make a report when
he returned. Id. The Individual acknowledged that he “should have got a supervisor and let him
take it off” but said that he was “just trying to do the right thing.” Ex. 8 at 21.
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On June 21, 2018, the Individual was issued a written reprimand for failing to report to mandatory
training without notifying his supervisor or seeking approval for his absence. Ex. 5 at 1. The
written reprimand noted that this was the third warning the Individual had received for violating
work rules within the previous year. Id. At the hearing, the Individual asserted that he had not been
notified, as required, about the training. Tr. at 22. He claimed that when he asked to see the
paperwork indicating that he had been informed of the training, the paperwork could not be
produced. Id. The LSO stipulated that it did not have the requisite paperwork that would indicate
that the Individual had been informed about the training. Id. at 23. During the July 2018 PSI and
at the hearing, the Individual speculated that the paperwork oversight was due to new leadership
in his work group, and indicated that he completed the training the day after he was notified of the
discrepancy. Ex. 4 at 6; Tr. at 23.
In October 2018, the Individual received corrective counseling for voicing displeasure with an
assignment, walking away from his assignment, and calling in sick from the parking lot. See Ex.
1 at 3 (summarizing the charges against the Individual). At the hearing, the Individual explained
that he arrived at work 30 minutes early and realized that he was beginning to feel ill. Tr. at 27.
He explained that he told the supervisor that he was “tired” and was leaving. Id. The Individual
asserted that the supervisor claimed that he was leaving because he did not want to work the
assigned post. Id. The Individual continued that, on arriving at his car in the parking lot, he decided
he should call his supervisor to tell him he was leaving because he was sick. Id. at 29. He asserted
that he called in from the parking lot, because the regulations require a telephone call. Id. Finally,
he asserted that this assignment was an overtime shift, as he had already worked over 68 hours that
week. Id. at 30.
On January 25, 2018, the DOE Psychologist conducted a clinical interview of the Individual and
administered the Minnesota Multiphasic Personality Inventory-2-Restructured Form (MMPI-2-
RF) psychological test. Ex. 3 at 1. During the clinical interview, the Individual discussed
challenges in his personal life which had been causing him stress, including being struck by a
drunk driver in a car accident and balancing his work with caring for his chronically ill wife. Id. at
2. Based on the results of the clinical interview and MMPI-2-RF, the DOE Psychologist concluded
that the Individual did not demonstrate any psychological condition, but noted that the stressors in
the Individual’s life were having an adverse impact on his behavior. Id. at 3.
On December 5, 2018, the Individual met with the DOE Psychologist for a second clinical
interview. Ex. 3 at 4. During the clinical interview, the Individual reported that his wife’s condition
was somewhat improved, and that counseling had helped him to manage the stressors he
experienced in his personal life. Id. at 5. The Individual reported that the latest disciplinary
allegations against him in connection with the October 2018 incident were “embellished” and that
witnesses could confirm that he had not acted as management alleged. Id. The Individual reiterated
this statement at the hearing. Tr. at 36. In the December 5, 2018 report, the DOE Psychologist
concluded that the Individual did not demonstrate any diagnosable psychological conditions. Id.
at 6. However, the DOE Psychologist noted that the Individual continued to experience difficulties
at work despite improving his ability to manage the stressors in his personal life. Id.
As a follow-up to the January 25, 2018, and December 5, 2018 reports, the LSO sent two email
requests, December 6, 2018, and May 2, 2019, requesting a further opinion from the DOE
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Psychologist regarding the Individual’s suitability to hold a security clearance. In response to the
December 6, 2018, email, the DOE Psychologist noted that he had spoken with representatives of
the DOE contractor who believed that the Individual responded negatively when he did not get his
way, was unreliable, did not make good decisions, and did not accept responsibility for his actions.
Id. at 5–8. Based on these accounts, and the persistence of the Individual’s work-related issues
despite his improved coping skills, the DOE Psychologist concluded that the Individual’s behavior
raised security concerns related to his trustworthiness, reliability, and veracity. Id. at 9.
However, at the hearing, the DOE Psychologist testified that, based on the new information that
he had learned at the hearing, he no longer believed that the Individual displayed a lack of
trustworthiness, reliability, or veracity. Id. at 56–57. Moreover, the DOE Psychologist expressed
that he now doubted the veracity of the information provided to him by the DOE contractor
personnel with whom he consulted concerning the Individual’s conduct prior to issuing his second
report. Id. at 57.
The Individual offered three character witnesses to testify as to his trustworthiness and reliability.
A senior manager in the Individual’s chain of command testified as to his reliability. Id. at 53–54.
A co-worker of the Individual testified as to his honesty and his willingness to assist others when
the need arose. Id. at 60. A long-time personal friend and co-worker of the Individual testified as
to his honesty and dependability over several decades. Id. at 66. The Individual also offered written
statements from current supervisors concerning his reliability and trustworthiness. Ex. G.
V. ANALYSIS
A. Guideline E
The Individual’s repeated disciplinary issues raise security concerns under Guideline E of the
Adjudicative Guidelines. Adjudicative Guidelines at ¶ 16(d)(2)–(3). However, two mitigating
conditions under Guideline E are present which resolve the security concerns.
An individual may resolve security concerns under Guideline E if “the information was
unsubstantiated . . . .” Id. at ¶ 17(f). In this case, the LSO did not bring forth evidence to substantiate
that the Individual knowingly failed to report for overtime in August 2017 or to attend mandatory
training in June 2018, but rather relied on the contractor’s contemporaneous reports regarding
these two incidents. I found the Individual to be credible in his testimony that he did not know
about either his assigned overtime or his required training. Further, his witnesses, the DOE
Psychologist, and the letters submitted by his current supervisors support his honesty,
trustworthiness, and good judgment, as does his nearly 20 years of service without a reprimand.
Therefore, I find that these security concerns are resolved.
The three remaining concerns – the March 2017 traffic citation, the July 2017 failure to report for
training, and the November 2017 damage to government property – are also mitigated under
Guideline E. The Individual provided substantial witness testimony and statements as to his
trustworthy and reliable character. Moreover, the Individual has worked at a DOE site since 1999,
and there is no indication that he was disciplined for workplace misconduct prior to 2017. Against
this significant period of satisfactory service, I find that the three substantiated charges are “so
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minor” that they do “not cast doubt on the [I]ndividual’s reliability, trustworthiness, or good
judgement,” and are therefore mitigated under Guideline E. Id. at ¶ 17(c). In a further indication
that these concerns are mitigated, the DOE Psychologist testified that, in his opinion, these three
remaining concerns no longer raise a concern regarding the Individual reliability, trustworthiness,
or good judgement.
Having determined that the Individual has satisfied two mitigating conditions under Guideline E,
I conclude that the Individual has resolved the security concerns asserted by the LSO.
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 of the Adjudicative Guidelines. After
considering all of 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 find that the Individual has 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 be restored. Either party may seek review of this
Decision by an Appeal Panel pursuant to 10 C.F.R. § 710.28.
Janet R.H. Fishman
Administrative Judge
Office of Hearings and Appeals