PSH-21-0006

*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 9, 2020 ) Case No.: PSH-21-0006
)
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Issued: April 6, 2021
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Administrative Judge Decision
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James P. Thompson III, Administrative Judge:
This Decision concerns the eligibility of XXXXXXX (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 security
clearance should not be restored.
I. BACKGROUND
A DOE contractor employs the Individual in a position that requires him to hold a security
clearance. In January 2020, the Individual reported to the local security office (LSO) that,
beginning in September 2019, he had been receiving ongoing threats of extortion and blackmail
from a married couple. Ex. 4 at 4. He told the police that, under threat, he had made several
payments totaling approximately $18,000. Id. The LSO subsequently issued a Letter of
Interrogatory (LOI) to the Individual seeking greater detail, and the Individual responded in
writing. Ex. 12.
In a letter dated November 19, 2020 (Notification Letter) the LSO informed the Individual that it
possessed reliable information that created substantial doubt regarding the Individual’s eligibility
to hold a security clearance. In an attachment to the letter (Summary of Security Concerns), the
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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LSO explained that the derogatory information raised security concerns under Guideline E of the
Adjudicative Guidelines. Ex. 4.
The Individual exercised his right to request an administrative review hearing pursuant to 10
C.F.R. Part 710. Ex. 5. 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 review
hearing. At the hearing, the Individual presented the testimony of two witnesses and testified on
his own behalf. See Transcript of Hearing (Tr.). The LSO submitted thirteen exhibits, marked
Exhibits 1 through 13. The Individual submitted eight exhibits, marked Exhibits A through H.2
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 his eligibility for a security
clearance. The LSO cited Guideline E (Personal Conduct) of the Adjudicative Guidelines as the
basis for suspending the Individual’s security clearance. Ex. 4. Conduct involving questionable
judgment, 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. Concerning conduct includes any personal conduct,
or concealment of information about one’s conduct, that creates a vulnerability to exploitation,
manipulation, or duress by a foreign intelligence entity or other individual or group. Id. at ¶ 16(e).
The Notification Letter contained, in part, the following information: in September 2019, the
Individual began receiving blackmail and extortion threats from two people with whom he had
engaged in text message conversations; the extortioners demanded ongoing payments from the
Individual in order to conceal text messages and photos from being made public; the Individual
was led to believe that, in exchange for his payments, the extortioners would provide him with the
electronic devices and printed media that contained the compromising information; and the
Individual did not acknowledge that, despite having paid $18,000 to prevent the release of
information he viewed as sensitive, he has already been “compromised.” Ex. 4 at 4-6. The above
information justifies the LSO’s invocation of Guideline E.
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 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) (strong presumption against the issuance of a security clearance).
2 Exhibit A is a letter dated February 16, 2021, from a charitable organization. It replaces a preceding, undated letter
from the same organization.
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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 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). Hence, an individual is afforded the utmost latitude in the presentation of
evidence to mitigate the security concerns at issue.
The discussion below reflects my application of these factors to the testimony and exhibits
presented by both sides in this case.
IV. FINDINGS OF FACT
In January 2020, the Individual reported to the local security office (LSO) that he was being
blackmailed and had received extortion threats, primarily from a married couple. Ex. 4 at 4. In his
response to the LOI, the Individual stated that, in July and August 2018, he began communicating
with Spouse A of the married couple through text messages and personal meetings, and he admitted
that some of their communication were of a sexual nature.3 See Ex. 12 at 7. The Individual further
explained that, in March 2019, Spouse B contacted the Individual to find out the nature of the
Individual’s relationship with Spouse A. Id. The Individual admitted that he also engaged in
communication with Spouse B that contained sexual overtones. Id. Months later, in September
2019, the Individual began receiving text messages from Spouse A demanding money and
threatening to release text messages and photographs to the Individual’s family, friends, co-
workers, and associates. Id.
Additionally, the Individual reported that Spouse B led him to believe that she was also being
blackmailed by Spouse A, in that Spouse A had somehow combined text messages between the
Individual and Spouse B with photographs of Spouse B to create a file that made it appear that the
Individual and Spouse B were having an extramarital affair. Id. at 7–8. The Individual also alleged
that in October 2019, Spouse B claimed that Spouse B’s father had hired an attorney to develop
an agreement, the terms of which required Spouse A to relinquish all mobile phones, tablets, and
hard copy documents used for blackmail in exchange for a payment of $5,000. Id. at 7. The
Individual never saw or signed the agreement. Id. The record indicates the Individual paid his
extorters a total of about $18,000 over 96 separate transaction. Ex. 13.
The record includes a clearance criteria statement (Statement) signed by the Individual in October
2018. Ex. 10 at 26. Subparagraph L of the Statement recites that the signer recognizes that conduct
that could raise a doubt as to eligibility for access authorization includes “[engaging] in any
unusual conduct . . . which furnishes reason to believe that the individual may be subject to
pressure, coercion, exploitation, or duress[.]” Id.
At the hearing, the Individual asserted that he did not believe that his conduct could affect his
security clearance eligibility because he kept his work life separate from his personal life. Tr. at
76. He testified that he believed that his personal conduct had no relevance to his employment
3 The Individual confirmed the nature of the text messages during his testimony. Tr. at 70.
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because he had separately compartmentalized these two aspects of his life. Id. at 49–50. He
testified that he eventually began to realize that he should report the situation to the LSO when he
decided to file a police report. Id. at 50. He stated, “[A]t that point is where I started thinking,
‘Oh, now I got to start the process of reporting this information to DOE.’ Because, you know, they
do get involved in things when -- when there are bankruptcies and other types of situations.” Id. at
50.
The Individual indicated that during the time that he was being extorted, he did not believe he was
compromised because he always thought that “someone would be compromised if they were
approached by foreign agents.” Id. at 78. He also stated that the questions in the LOI to which he
responded did not ask him if he thought that he was compromised. Id. at 55, 77. However, he
testified that he now understands that he could have been compromised. Id. at 77.
Under questioning by DOE Counsel, the Individual confirmed that he received annual security
training from his employer. Id. at 61. He testified that he was not aware whether the security
trainings ever discussed how personal conduct could affect professional life. Id. However, he knew
that the five-year security clearance renewal process required completing a questionnaire that
included questions about “personal things.” Id. The Individual recalled the Questionnaire for
National Security Positions (QNSP) he completed in October 2018, and he confirmed that he read
and signed the accompanying Statement as part of the process. Id. at 80.
The Individual also testified regarding the circumstances at the time he self-reported the extortion.
The Individual testified that he told his manager about his involvement in the scheme before he
contacted the police. Id. at 75. He explained that he self-reported the information mainly because
the extortioners threatened to come to his work address. Id. He stated that he notified his manager
in case they came to his workplace and created a problem. Id. at 75–76.
Lastly, the Individual provided examples of the efforts he took to address this situation. He testified
that he self-reported the blackmailing and extortion scheme to his employer and the LSO before
its discovery. Id. at 54. He then assisted the police in their investigation and served as a
prosecutorial witness which led to Spouse B’s criminal conviction. Id. at 52; Ex. 13 at 3.4 He also
stated that he has not had any contact with the extortioners since approximately July 2020. Id. at
65.
In addition to the Individual’s testimony, the record includes character statements from the project
manager and the corporate secretary of the nonprofit organization where the Individual volunteers.
The project manager stated that the Individual assists in providing vision services for his
community, and that the Individual is honest and trustworthy. Ex. A at 1–2. The corporate secretary
agreed that the Individual is honest, and he described the Individual’s financial responsibilities as
treasurer and a member of the Board of Directors. Ex. C.
The record also includes a letter of reference submitted by the Individual’s supervisor. Ex. B. The
supervisor stated that the Individual is very talented and diligent. Id. The supervisor also stated
that he has never had a reason to question the Individual’s credibility. Id.
4 The record includes copies of a police affidavit and arrest warrant for Spouse B and a judgment of conviction against
Spouse B. Ex. E; Ex. F.
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In addition to the letters, two of the Individual’s coworkers testified on his behalf. The first
coworker has known the Individual for over twenty years and regularly interacted with him at
work. Tr. at 27–29. He asserted that the Individual has a very good reputation for honesty, and that
the Individual follows all protocols and procedures regarding the protection of information at their
work facility. Id. at 29-30. The second coworker testified that he has been working full-time with
the Individual for approximately nine years. Id. at 37–38. He asserted that the Individual is honest
and highly respected throughout the DOE complex for his strict compliance with the security
program. Id. at 39, 41, 43–44.
V. ANALYSIS
A. Guideline E Considerations
The Individual argued, through counsel, that the following Guideline E mitigating factors apply to
mitigate the security concerns in this case:5
(a) the individual made prompt, good-faith efforts to correct the omission, concealment, or
falsification before being confronted with the facts;
. . .
(c) 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;
(d) the individual has acknowledged the behavior and obtained counseling to change the
behavior or taken other positive steps to alleviate the stressors, circumstances, or
factors that contributed to untrustworthy, unreliable, or other inappropriate behavior,
and such behavior is unlikely to recur;
(e) the individual has taken positive steps to reduce or eliminate vulnerability to
exploitation, manipulation, or duress;
. . .
(g) 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.
Adjudicative Guidelines at ¶ 17.
5 The Individual’s attorney also argued that “if the Court finds that perhaps he didn’t meet the adjudicative standards,
we believe that under Waiver W in Appendix C the benefit or initial eligibility outweighs the security concerns because
it wasn’t related to work [.]” Tr. at 96. Under Part 710, “[a]pproval authorities may approve a waiver only when the
benefit of initial or continued eligibility clearly outweighs any security concerns.” Annex C to Appendix A to 10
C.F.R 710 at Waiver (W). I leave it to those authorities to make such a determination. As stated earlier, the purpose
of this hearing is to determine whether the continuation of the Individual’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).
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The Individual first argued that he mitigated the security concern based on the factors in ¶ 17(a)
above. He asserted that by self-reporting his conduct to the LSO, he made prompt, good-faith
efforts to correct the concealment before he was confronted with the facts. I disagree. While I
credit the Individual for self-reporting his conduct, he did not report it to the LSO until January
2020, four months after he received the initial blackmail threats in September 2019. Moreover, by
the time he had reported the blackmail to the police, he had already submitted to the threats and
made several payments to the extortioners totaling approximately $18,000 in an effort to conceal
personal information. I therefore find that his self-report to the LSO was not sufficiently prompt
to provide mitigation under Guideline E at ¶ 17(a).
Next, the Individual argued that, under ¶ 17(c), his behavior happened under such unique
circumstances that it is unlikely to recur because it happened only once in his career. The fact that
the Individual has only been implicated in one extortion scheme does not thereby mitigate my
concern. Furthermore, while I agree that the evidence shows that the Individual has established a
reputation for trustworthiness in his work performance, it is his personal conduct that forms the
foundation of the security concerns. The evidence of his professional integrity does not outweigh
the serious concern resulting from the extortion in his personal life. He capitulated over ninety
times before finally deciding to report the issue to the authorities. I do not find the circumstances
sufficiently unique to resolve the concerns.
Furthermore, I do not find the Individual’s testimony regarding his motivation to disclose his
conduct to the LSO credible. I do not believe that he only realized his personal conduct would be
of interest to the LSO at the time he decided to file a police report. The Individual acknowledged
answering personal conduct-related security questions in the QNSP, which clearly indicates that
he knew his conduct outside of work could be relevant to security clearance eligibility.
Furthermore, the Individual read and signed the Statement attached to his QNSP, which explicitly
addressed the Individual’s situation: being exploited for engaging in unusual conduct that made
him vulnerable. Finally, his admission that he knew the LSO should be informed of issues such as
bankruptcies removes any doubt that he knew that his conduct outside of work could implicate
security concerns. Accordingly, I also find unconvincing his explanation that he
compartmentalized his personal and professional life. I consequently cannot conclude that the
conduct at issue is unlikely to recur and does not cast doubt on the Individual’s reliability,
trustworthiness, or good judgment. For the reasons stated above, I conclude he has not resolved
the concern under ¶ 17(c).
Turning to the mitigating conditions under ¶ 17(d), at the hearing, the Individual acknowledged
his behavior by testifying that he now recognizes how his personal conduct could have been a
security concern. However, this acknowledgment and his testimony regarding his subsequent
actions are insufficient to resolve my concern. The Individual has not participated in or completed
a counseling program. As for whether he took other sufficient positive steps to alleviate the
circumstances that contributed to untrustworthy or other inappropriate behavior, I credit the
Individual’s eventual self-report and his subsequent assistance to the police in their investigation
and prosecution. However, the impact of his actions is undermined for the reasons discussed in the
previous paragraph and the fact that, by his own admission, his self-report was precipitated by the
extorters’ threat to come to his job site. I therefore find that the Individual has not met his burden
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to mitigate the concerns under ¶ 17 (d). I further find, based on the same reasoning, that he has not
resolved the security concerns under ¶ 17(e).
Lastly, the Individual cited his lack of contact with Spouse A and Spouse B and their associates as
mitigation under ¶ 17(g). However, his association with persons involved in criminal conduct was
not presented as a basis for concern. Accordingly, I find that ¶ 17(g) is not applicable in this case.
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 not brought forth sufficient evidence to resolve the security
concerns set forth in the Summary of Security Concerns. Accordingly, I have determined that the
Individual’s access authorization should not be restored.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth at
10 C.F.R. § 710.28.
James P. Thompson III
Administrative Judge
Office of Hearings and Appeals