PSH-21-0116

*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: September 29, 2021 ) Case No.: PSH-21-0116
)
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Issued: February 3, 2022
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Administrative Judge Decision
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James P. Thompson III, Administrative Judge:
This Decision concerns the eligibility of XXXXX 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 not be restored.
I. BACKGROUND
A DOE contractor employs the Individual in a position that requires possession of a security
clearance. In early 2020, the DOE Local Security Office (LSO) was notified that the Individual
had been placed on Site Access Restriction (SAR) after failing to follow policy and procedures,
and she was later terminated for failure to cooperate with a related investigation. While the
Individual’s employer ultimately rehired her after an arbitration decision recommended suspension
in lieu of termination, the LSO informed the Individual by letter (“Notification Letter”) that it
possessed reliable information that created substantial doubt regarding her eligibility to possess a
security clearance. In an attachment to the Notification Letter, entitled Summary of Security
Concerns, the LSO explained that the derogatory information raised security concerns under
Guideline E and Guideline K of the Adjudicative Guidelines.
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 exercised her right to request an administrative review hearing pursuant to
10 C.F.R. Part 710. The Director of the Office of Hearings and Appeals appointed me as the
Administrative Judge in this matter, and I subsequently conducted an administrative review
hearing. See Transcript of Hearing (Tr.). At the hearing, the Individual testified on her own behalf,
and the LSO submitted the testimony of an investigator employed by the Individual’s employer
(“Investigator”). The Individual submitted three exhibits, marked Exhibits A through C. The LSO
submitted thirteen exhibits, marked Exhibits 1 through 13.2
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
As indicated above, the LSO cited Guideline E (Personal Conduct) and Guideline K (Handling
Protected Information) of the Adjudicative Guidelines as the basis for concern regarding the
Individual’s eligibility to possess a security clearance. Ex. 2.
Guideline E provides that “[c]onduct involving questionable judgment, lack of candor, dishonesty,
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. Conditions that could raise a security concern include “[c]redible adverse
information that is not explicitly covered under any other guideline and may not be sufficient by
itself for an adverse determination, but which, when combined with all available information,
supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability,
lack of candor, unwillingness to comply with rules and regulations[.]” Id. at ¶ 16(d). Examples of
concerning behavior includes “[a] pattern of dishonesty or rule violations[.]” Id. ¶ 16(d)(3). In the
Notification Letter, the LSO stated that the Individual failed to follow policy and procedure by (1)
introducing her personally owned cellular phone into a limited area, (2) using her phone to
exchange a series of inappropriate text messages with two other employees, (3) using her phone
on duty, and (4) refusing to provide requested information during a company investigation. Ex. 2
at 5-6. The above information justifies the LSO’s invocation of Guideline E.
Guideline K provides that “[d]eliberate or negligent failure to comply with rules and regulations
for handling protected information - which includes classified and other sensitive government
information, and proprietary information - raises doubt about an individual’s trustworthiness,
judgment, reliability, or willingness and ability to safeguard such information, and is a serious
security concern.” Id. at ¶ 33. Conditions that could raise a security concern include “[a]ny failure
to comply with rules for the protection of classified or sensitive information.” Id. at ¶ 34(g). In the
Notification Letter, the LSO stated that the Individual violated rules and regulations for the
protection of sensitive information when she (1) introduced her phone into a limited area, (2) used
her personal phone while on duty, and (3) failed to report, as required, another employee’s
violation of their employer’s rules regarding inappropriate text messages and use of company
provided phones. Ex. 2 at 6. The above information justifies the LSO’s invocation of Guideline K.
2 The LSO’s exhibits were combined and submitted in a single, 59-page PDF workbook. Many of the exhibits are
marked with page numbering that is inconsistent with their location in the combined workbook. This Decision will
cite to the LSO’s exhibits by reference to the exhibit and page number within the combined workbook where the
information is located as opposed to the page number that may be located on the page itself.
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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).
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 to permit the introduction of a very broad range of evidence
at personnel security hearings. Even appropriate hearsay evidence may be admitted. Id. at
§ 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
During a 2020 investigation into another employee’s conduct, the Individual was observed on
recorded surveillance video footage using her personal cell phone in a limited area approved for
storage of classified and other sensitive matter at her job site. Ex. 3 at 7. She later admitted to
introducing her phone into the limited area approximately three times. Id. As a result of her
conduct, she became the subject of a security investigation conducted by her employer to
determine whether she possessed classified information on her personal cellphone, and a search of
it revealed additional violations of her employer’s policies, including transmitting “inappropriate
and offensive materials” to a company issued cellphone possessed by another employee while they
were both on duty. Ex. 7 at 7, 10.
The Investigation Report from the Individual’s employer concluded that the above conduct
violated procedures designed to protect classified information and company policy and rules
around cellphone use. Ex. 3 at 10-11. She received a security infraction and a two-week
suspension. Ex. 11. She also subsequently received remedial training regarding the use of personal
cellular phones while on duty and in limited areas. Ex. B at 32.
The record indicates that, at a point during the above investigation, the Individual learned that the
Investigator removed related evidence from a protected area. Ex. 3 at 9. Within a few minutes of
the Investigator’s exit from the protected area, the Individual, who was on administrative leave,
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contacted the Investigator and asked him if the evidence contained her personal information. Id. at
9; Ex. 6 at 18. When later asked to identify the person who notified her of the Investigator’s exit
from the protected area, the Individual refused on three separate occasions: once during a phone
call, and twice during investigation interviews. Ex. 3 at 9; Tr. at 88. As a result of her failure to
cooperate with the investigation, she remained on SAR and off duty without pay. Ex. 3 at 9. She
was later terminated for her failure to cooperate in the investigation, but her employer reinstated
her after an arbitration panel reduced her penalty. Ex. 12 at 33, 55; Ex. 13 at 59.
At the hearing, the Investigator testified regarding the Individual’s prohibited conduct and failure
to cooperate with the investigation. The Investigator testified that he had previously supervised the
Individual and then later trained the Individual on aspects of her security position. Tr. at 22. The
Investigator testified that the limited area, which requires badge access, contains classified
networks, weapon and sensitive item storage, and, potentially, classified documents. Id. at 27. The
Investigator also described reviewing the recorded video footage of the Individual with her
personal cellphone in the limited area, and he testified that he observed her concealing the device
under her leg when alerted, by sound, to the door switch. Id. at 34.
The Investigator explained that, when a personal cellphone is discovered in a limited area, protocol
requires the phone to be confiscated and reviewed for classified information to determine whether
information vital to the government has been leaked. Id. at 35-36. A review of the Individual’s
cellphone revealed that she had also sent an inappropriate photograph of herself to another security
force employee while both were on duty status. Id. at 37-38.
Regarding his removal of investigation materials from the protected area, the Investigator testified
that some of the sensitive information in the package had been classified as unclassified controlled
nuclear information. Id. at 39. The Investigator explained that the exposure of his actions to the
Individual meant that a person entrusted with a security clearance staffing the security post was
potentially willing to call people on the outside to reveal confidential information. Id. at 41. As to
the Individual’s failure to cooperate during the investigation, the Investigator testified that he
found it surprising and out of character because of her past trustworthiness regarding classified
information. Id. at 45.
The Individual testified that she had never been the subject of an investigation or had her integrity
questioned during her seventeen-year career. Id. at 66-67. She testified that she did not realize at
the time that she could not use her personal cell phone in the limited area because she had, in the
past, been asked by management to bring her personal cellphone into a limited area. Id. at 70-71.
However, she also testified that her previous belief that there was no actual “rule” prohibiting
possessing a personal cell phone in the limited area “sounds crazy” in hindsight. Id. at 72. She
stated that she made a regretful mistake, accepted her suspension as “punishment” for the phone
infractions, and testified that, going forward, she would always leave her personal phone in her
vehicle anytime she is on-site. Id. at 73-74.
As for her failure to cooperate, the Individual testified that she only recognized her mistake when,
after refusing, she later realized that she had been looking at it from a “personal standpoint” while
her employer had been looking at it “as a security issue.” Id. at 79. She testified that she refused
to disclose the informant to the facility manager because she was bothered that her personal
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information “was laying out on [a] desk in the security office . . . where anybody can walk in or
out at any time” and because release of the information could be personally embarrassing for her.
Id. at 92-93. She also testified that when she initially spoke with the facility manager, he made
statements that she believed were untrue regarding what had been done to her cellphone during the
investigation. Id. at 77.
After she realized her refusal was a mistake, she disclosed the informant’s identity to her union
representative, whom she knew would appropriately report the information to her employer. Id. at
79. She stated that she made the disclosure to her union representative instead of the facility
manager because the facility manager had told her at their final meeting not to contact the employer
while on SAR. Id. at 79-80.
The Individual testified that her rule violations and failure to cooperate with the investigation arose
from unusual circumstances and that, going forward, she would comply “100 percent” if placed in
a similar situation. Id. at 84-85. She also testified she has not had any disciplinary issues at work
since her return from SAR. Id. at 83.
V. ANALYSIS
The Individual, through counsel, argued that her long, incident-free tenure—coupled with the
unusual circumstances surrounding her concerning conduct, her contrition, and her subsequent
growth—demonstrate that she will not engage in the same concerning conduct in the future and
that the security concerns have been mitigated. Tr. at 96-97. I disagree.
A. Guideline E Considerations
Under Guideline E, an individual may mitigate security concerns, in relevant part, if:
(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[.]
Adjudicative Guidelines at ¶ 17.
The evidence in the record does not demonstrate that either of the above mitigating conditions
apply to resolve the security concerns. First, in examining the applicability of ¶ 17(c), I find that
the conduct was not minor because there is evidence that the Individual deliberately refused to
cooperate several times during a security investigation and violated the rules governing personal
cellphone use and security on several occasions. Despite her testimony, I am unconvinced that she
was unclear regarding her ability to use her personal cellphone in the limited area given her
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seventeen-year tenure in a security-related position, the evidence that she attempted to conceal her
behavior, and her own testimony that her explanation for her behavior “sounds crazy” or, stated
differently, is implausible.
Regarding the frequency of her concerning conduct, while, over the Individual’s entire career, it
may appear infrequent, her employer’s investigation uncovered several instances of prohibited
conduct within a short period, and it prompted her to immediately engage in additional concerning
conduct by refusing to provide a material fact during the security investigation. I therefore
conclude that the concern is not mitigated by infrequency.
Next, I find that there is no evidence from which I find that her violation of the security rules is
unique. I conclude the same for her using her phone on duty and sending text messages in violation
of company policy. Furthermore, I find that she decided not to cooperate in the investigation
because she distrusted the process and wanted to prevent potentially embarrassing personal
information from being exposed, the latter being a common impetus that can create vulnerability.
See Adjudicative Guideline E ¶ 16(e) (identifying a basis for concern as “[p]ersonal conduct, or
concealment of information about one’s conduct, that creates a vulnerability to exploitation,
manipulation, or duress[.]”). And, in this case, the Individual exercised poor judgment in acting
on that impetus. Finally, for all the reasons stated above, the mere passage of time does not resolve
the concern.
Turning to ¶ 17(d), while the Individual admitted her mistake, I still have doubt, based on my
reasoning above, regarding the Individual’s reliability, trustworthiness, and good judgment. While
the Individual has undergone remedial security training and she has not violated any additional
security rules since her return from SAR, these actions are not sufficient to overcome all of the
evidence cited above that supports my present concern regarding her judgment, reliability, and
trustworthiness.
B. Guideline K Considerations
The Guideline K and Guideline E security concerns arise from much of the same conduct involving
the Individual’s use of her personal cellphone while on duty. I also note here that while the
Individual’s refusal to participate in the investigation is not cited as a Guideline K security concern,
her conduct does impact my assessment of her trustworthiness, judgment, reliability, or willingness
and ability to safeguard classified and other sensitive government information. Adjudicative
Guidelines at ¶ 33. Therefore, my above findings will guide my below analysis.
Under Guideline K, an individual may mitigate security concerns, in relevant part, if:
(a) So much time has elapsed since the behavior, or it has happened so infrequently or
under such unusual circumstances, that it is unlikely to recur and does not cast doubt
on the individual’s current reliability, trustworthiness, or good judgment;
(b) The individual responded favorably to counseling or remedial security training and
now demonstrates a positive attitude toward the discharge of security
responsibilities;
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(c) The security violations were due to improper or inadequate training or unclear
instructions[.]
Adjudicative Guidelines at ¶ 35.
For the same reasons set forth in my analysis and findings under the Guideline E mitigating
conditions, I conclude that ¶ 35(a), (b), and (c) do not apply to resolve the Guideline K security
concerns. Turning first to ¶ 35(a), the factors and my reasoning thereunder are analogous to my
above analysis of the factors set forth in ¶ 17(c) of Guideline E. I remain skeptical that she was
unclear regarding her ability to use her personal cellphone in the limited area; and the passage of
time, the frequency of her rule violations, and the particular circumstances surrounding her conduct
do not resolve the security concerns. Second, as to ¶ 35(b) and (c), again, my analysis is consistent
with my analysis in the preceding section under the factors set out in ¶ 17(c) and (d): namely, I
find that the Individual has not resolved the concern based on her recent remedial security training
nor her alleged misunderstanding of the rules surrounding personal cellphone use. I therefore
remain concerned regarding the Individual’s trustworthiness, judgment, reliability, and willingness
and ability to safeguard protected information. Thus, I conclude that Individual has not resolved
the Guideline K security concerns.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
the DOE that raised a security concern under Guideline E and Guideline K 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 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