PSH-21-0042

*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: April 29, 2021 ) Case No.: PSH-21-0042
)
__________________________________________)
Issued: June 25, 2021
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Administrative Judge Decision
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Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXXXXXX (hereinafter referred to as “the Individual”)
for access authorization under the Department of Energy’s (DOE) regulations set forth at 10 C.F.R.
Part 710, entitled, “Procedures for Determining Eligibility for Access to Classified Matter or
Special Nuclear Material.”1 For the reasons set forth below, I conclude that the Individual’s
security clearance should be granted.
I. BACKGROUND
During a Local Security Office’s (LSO) background investigation of the Individual, derogatory
information was discovered relating to the individual’s criminal history. Because the Individual
was unable to resolve this information, the LSO began the present administrative review
proceeding by issuing a Notification Letter to the Individual informing him that he was entitled to
a hearing before an Administrative Judge in order to resolve the substantial doubt regarding his
eligibility to hold a security clearance. See 10 C.F.R. § 710.21.
The Individual requested a hearing and the LSO forwarded the Individual’s request to the Office
of Hearings and Appeals (OHA). The Director of OHA appointed me as the Administrative Judge
in this matter on April 29, 2021. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e)
and (g), the Individual presented the testimony of two witnesses and testified on his own behalf.
See Transcript of Hearing, Case No. PSH-21-0042 (hereinafter cited as “Tr.”). The LSO submitted
12 exhibits, marked as Exhibits 1 through 12 (hereinafter cited as “Ex.”). The Individual submitted
17 exhibits, marked as Exhibits A through Q.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY
CONCERNS
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).
Such authorization will also be referred to in this Decision as a security clearance.
2
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
citing Guideline J of the National Security Adjudicative Guidelines for Determining Eligibility for
Access to Classified Information or Eligibility to Hold a Sensitive Position, effective June 8, 2017
(Adjudicative Guidelines).
Guideline J (Criminal Conduct) provides that “[c]riminal activity creates doubt about a person's
judgment, reliability, and trustworthiness. By its very nature, it calls into question a person's ability
or willingness to comply with laws, rules, and regulations.” Adjudicative Guidelines at ¶ 30. The
conditions that could raise a security concern and may be disqualifying include a pattern of minor
offenses, any one of which on its own would be unlikely to affect a national security eligibility
decision, but which in combination cast doubt on the individual's judgment, reliability, or
trustworthiness. Adjudicative Guidelines at ¶ 31.
The LSO alleges that the Individual exhibited the following pattern of criminal conduct:
A. In June 2019, police charged the Individual with Speeding and he was arrested for an
outstanding bench warrant,
B. In 2019, the Individual had three outstanding warrants for Contempt of Court violations,
C. In February 2019, police charged the Individual with No Driver’s License and in April 2019
he failed to appear in court on the charge, resulting in a bench warrant being issued,
D. In March 2018, police charged the Individual with Driving While License Suspended and
No Vehicle Liability Insurance,
E. In November 2018, police charged the Individual with Driving While License Invalid and
Failure to Appear,
F. In May 2017, the Individual was charged with three unlisted charges,
G. In April 2015, the Individual was charged with Contempt of Court.
H. In February 2014, police charged the Individual with No Vehicle Inspection Sticker, Failure
to Wear a Seat Belt, and Failure to Establish Financial Responsibility (Vehicle Insurance).
I. On April 20, 2010, police charged the Individual with Failure to Maintain Financial
Responsibility and No Inspection Sticker. A warrant for his arrest was issued because he
failed to pay the resulting fine.
Ex. 1 at 1-2. The Individual has acknowledged the accuracy of these allegations. Tr. at 12-13.
Accordingly, the LSO’s security concerns under Guideline J are justified.
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 entire process
is a conscientious scrutiny of several variables known as the “whole person concept.” Adjudicative
Guidelines ¶ 2(a). The protection of the national security is the paramount consideration. The
regulatory standard implies that there is a presumption against granting or restoring a security
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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 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
The Individual testified on his own behalf at the hearing. The Individual testified that he has
satisfied all of his outstanding obligations resulting from his traffic violations, failure to maintain
insurance and driving without a license, with two exceptions, which he expects to satisfy soon.2
Tr. at 15-16,18, 20, 22-23, 28-31, 33, 39, 46-48. Once he pays that debt, which he initially estimated
at $2,000, he will be eligible to obtain a driver’s license.3 Tr. at 23, 46-48. He subsequently
estimated this liability at $1,076. Tr. at 48. He further testified that he has resolved all outstanding
bench warrants issued against him.4 Tr. at 16-19. He testified that he obtained an occupational
driver’s license in June 2020 that allows him to operate motor vehicles at work and to transport
himself to and from work.5 Tr. at 44, 47. He testified that he could have avoided some of his
problems if he had been aware of this option sooner. Tr. at 44-45.
The Individual testified that, while he had no excuse for his many violations, he made the decision
to drive to maintain his income, to complete his education, and to see his family, and that he saw
no other options. Tr. 20-21, 23, 27. Nevertheless, the Individual characterized this conduct as
“wrong” and realizes that he is in his present predicament because he “messed up.” Tr. at 21, 38,
42. The Individual testified that his now able to afford insurance, since he has a career. Tr. at 24.
However, he admitted that he is “a little behind” on his insurance payments. Tr. at 52. He is
determined to “get [his] life together” and believes that he is changed and has “become a better
man” and that he “is not the same person as before.” Tr. at 38, 42-43. The Individual testified
2 This testimony is corroborated by Exs. C-Q.
3 This testimony is corroborated by Ex. A, an online document issued by a state Department of Public Safety, indicating
the conditions needing to be satisfied for the Individual to become eligible for a driver’s license. Ex.
4 This testimony has been corroborated by other evidence in the Record. Ex. 11; Ex. 12.
5 This testimony is corroborated by Ex. B, a judicial order granting a restricted and occupational license to the
individual.
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that he has not had any citations or warrants since 2019. Tr. at 42. He is exercising more caution
when he is driving, and he is being careful not to speed. Tr. at 52-53.
The Individual testified that he has discussed his criminal history and his driver’s license status
with his management. Tr. at 37-38. They have allowed the Individual to work overtime to earn
enough money to address his outstanding fines. Tr. at 37-38. He testified that his ability to pay
his outstanding fines was slowed during the COVID-19 lockdown because he could not work
overtime, and because his mother and younger siblings needed financial help during that period.
Tr. at 39, 43.
The Individual’s supervisor (the Supervisor) testified on his behalf at the hearing, stating that he
works with the Individual daily. He testified that he and the Individual had discussed the
Individual’s criminal history and his driver’s license and car insurance status. Tr. at 58. He worked
with the Individual to help him devise a plan to pay off his outstanding fines, so that he could
continue to work for the DOE contractor. Tr. at 58. The Supervisor testified that the Individual
implemented this plan and was “going along strongly.” Tr. at 59. However, the Individual’s
progress was slowed by the lack of available overtime during the COVID-19 crisis and by the
Individual’s need to provide financial assistance to his family during the COVID-19 crisis. Tr. at
59. The Individual sought the advice of the Supervisor before extending this assistance to his
family, and the Supervisor counseled him to help his mother and younger siblings. Tr. at 60. The
Individual informed the Supervisor that most of his outstanding fines had been paid. Tr. at 59. The
Supervisor convincingly testified that, over the past three years, he has observed the Individual
“become a responsible adult.” Tr. at 60, 62, 66. He further testified that the Individual has
“matured greatly over the last two years.” Tr. at 60, 66. The Individual “has taken on more
responsibility and handled it well… and that is not an easy thing, because a lot of people depend
on him.” Tr. at 61. The Supervisor testified that the Individual’s occupation is vital for protecting
the health and safety of the other employees at his facility, and that the Individual is responsible
for ensuring that the employees are able to “safely do their job and go home to their kids and
[spouses].” Tr. at 67.
The Individual’s Mother (the Mother) testified on his behalf at the hearing. She testified that the
Individual is trying to drive more cautiously. Tr. at 76-77, 82-83. She further testified that the
Individual is diligently addressing his outstanding tickets. Tr. at 77. The Mother testified that the
Individual has been providing her, his grandmother, and his younger siblings with financial
support. Tr. at 77-79. The Individual has been active in his church and mentors young men. Tr. at
79. She further testified that her son “cares about others.” Tr. at 80. She further vouched for his
basic honesty. Tr. at 80-81.
In her closing statement, the DOE Counsel stated her belief that, looking at the mitigating factors
for Guideline J, the issues that led to the Individual’s pattern of criminal behavior have been
resolved. Tr. at 85–86. She cited the Individual’s financial difficulties as a major reason for his
citations and stated that the Individual now has a stable job and is meeting his financial obligations.
Tr. at 86. She further noted that the Individual reiterated a commitment to his continued personal
growth. Tr. at 87
V. ANALYSIS
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During his early 20’s, the Individual exhibited an extremely irresponsible disregard of traffic laws,
which led him to receive a significant number of speeding tickets. Instead of changing his behavior
and paying the fines resulting from those tickets, the Individual chose to ignore the tickets and to
continue speeding. As a result, he incurred significant financial debts to several municipalities and
several warrants for his arrest were issued. Because of the number of tickets issued to him and his
failure to pay the fines resulting from his tickets, he lost his driver’s license, and it became
impossible for him to insure his motor vehicle. Faced with a need to work in order to resolve these
debts, continue attending college, and provide financial support to his mother and younger siblings,
the Individual made the poor decision to continue driving without insurance or a license. This
decision led him to incur further citations and increased his debt to several municipalities.
This history alone suggests that the Individual would be a poor candidate for a security clearance.
However, the Adjudicative Guidelines instruct me to employ the “whole person concept” which
requires that I carefully weigh a number of “variables of an individual's life” in order to determine
whether that individual is an acceptable security risk. Adjudicative Guidelines at § 2(a). In the
present case, I find that the Individual has resolved the security concerns raised by his criminal
activity by showing that he has grown and matured, changed his behavior, and taken meaningful
and appropriate actions to address the consequences of his past actions, and by doing so has
exhibited good judgment, reliability, and trustworthiness during the past two years.
The hearing testimony of the Individual, his supervisor (the Supervisor), and the Individual’s
mother have convinced me that the Individual has grown and matured and now exhibits reliability,
trustworthiness, and good judgement. During the Individual’s testimony, he fully acknowledged
his previous poor judgment and took responsibility for his actions. His testimony, and that of the
Supervisor, have convinced me that he has learned from his mistakes and has become a responsible,
law-abiding adult. He has further shown that he has taken actions to resolve his outstanding debt
and to restore his driving privileges. In addition, the Individual has shown that he has earned a
college degree and has been meaningfully employed with a DOE contractor since 2018, in a
position requiring a very high level of responsibility. Tr. at 61.
Guideline J sets forth four conditions that, if present, may mitigate security concerns arising under
Guideline J. Two of those mitigating conditions are present in the instant case. Section 32(a)
provides that security concerns arising from criminal conduct can be mitigated when: “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.” Adjudicative Guideline J at § 32(a). Two years have passed
since the Individual received his last ticket and, as I have discussed above, the evidence he has
submitted has convinced me that his criminal activity is unlikely to recur. Section 32(d) provides
that security concerns arising from criminal conduct can be mitigated when: “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.”
Adjudicative Guideline J at § 32(d). In the present case, there is abundant evidence of successful
rehabilitation: The Individual has acknowledged that he exercised poor judgment and behaved
inappropriately in the past, and has exhibited a change in behavior for the past two years. He has
been actively engaged in providing restitution. He has obtained a college degree and established a
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good employment record for the past three years. Moreover, he has engaged in constructive
community involvement by mentoring young men at his church.
For these reasons, I find the Individual has presented sufficient evidence to satisfy the mitigating
conditions under § 32(a) and § 32(d).
VI. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Guideline J. After
considering all of the evidence, both favorable and unfavorable, in a commonsense manner, I find
that the Individual has mitigated the security concerns raised under Guideline J. Accordingly, the
Individual has demonstrated that granting his security clearance would not endanger the common
defense and would be clearly consistent with the national interest. Therefore, the Individual’s
security clearance should be granted. The parties may seek review of this Decision by an Appeal
Panel under the procedures set forth at 10 C.F.R. § 710.28.
Steven L. Fine
Administrative Judge
Office of Hearings and Appeals