PSH-22-0120

*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 19, 2022 ) Case No.: PSH–22–0120
)
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Issued: November 30, 2022
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Administrative Judge Decision
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Janet R.H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXX (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
The Individual is employed by a DOE contractor in a position that requires him to hold a security
clearance. In October 2021, he was indicted by a grand jury on charges of Criminal Sexual
Penetration and Criminal Sexual Contact. Exhibit (Ex.) 1 at 1. Those charges are still pending.
The Individual was also investigated in October 2018 for Criminal Sexual Penetration, though he
was never charged. Id.; Ex. 6 at 1. From 1999 until 2018, the Individual was charged with or
involved in approximately 41 instances of criminal activity, many of which involved traffic
moving violations. Ex. 1 at 1–5.
Due to unresolved security concerns, the Local Security Office (LSO) informed the Individual, in
a Notification Letter, that it possessed reliable information that created substantial doubt regarding
his eligibility to hold a security clearance. Ex. 1. In the Summary of Security Concerns that
accompanied the Notification Letter, the LSO explained that the derogatory information described
above raised security concerns under Guideline J (Criminal Conduct) of the Adjudicative
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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Guidelines. Ex. 1. The Notification Letter informed the Individual that he was entitled to a hearing
before an Administrative Judge to resolve the substantial doubt regarding his eligibility to hold a
security clearance. See 10 C.F.R. § 710.21.
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 sixteen exhibits (Exs. 1–16) and the Individual submitted six exhibits
(Exs. A–F). The Individual testified on his own behalf and presented the testimony of his fiancée.
Hearing Transcript (Tr.) at 20, 55.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline J (Criminal Conduct) as a basis for its determination that the Individual
was ineligible for access authorization. Ex. 1. at 2. “Criminal 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 LSO cited the two charges of Criminal Sexual Penetration and Criminal
Sexual Contact and the Individual’s extensive pattern of criminal behavior. Ex. 1 at 2. The criminal
charges and other allegations against the Individual justify the LSO’s invocation of Guideline J.
Adjudicative Guidelines at ¶ 31(b).
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 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
Dep’t 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 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.
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IV. FINDINGS OF FACT
From 1999 to 2018, the Individual was charged with approximately 32 traffic violations, including
eleven charges for speeding which he either did not recall or admitted that he was in violation; six
charges of unlawful use of a license or a revoked/suspended license which he either did not recall,
admitted occurred, or claimed it was an error by the division of motor vehicles; three charges of
mandatory financial responsibility; four charges of careless driving; two charges of mandatory seat
belt violations; and six miscellaneous traffic violations including unsafe lane change, stop
sign/traffic lights.2 Ex. 1 at 1–5; Tr. at 70–94. During this time period, he also was involved in
other criminal incidents: 1) a 1999 fraud charge that occurred when the Individual was a minor,
which was resolved by consent degree and dismissed; 2) a 2001 possession of a deadly weapon
charge; 3) a 2004 possession of a deadly weapon charge, which was eventually dropped, from an
occasion when the Individual borrowed his brother’s car which contained a knife and gun
belonging to the Individual’s brother; 4) a 2003 possession of marijuana charge and a possession
of a firearm while in commission of a felony charge while driving cross country with his brother;
5) a 2007 simple assault charge that was dismissed; 6) a 2009 driving while intoxicated (DWI)
charge, which he claimed should have been attributed to his brother who used his name on
occasion; and 7) a 2015 possession of synthetic urine charge, which he stated he did not know was
illegal to possess. Tr. at 69–70, 73–74, 77–79, 80–81, 93. The Individual admitted to semi–regular
use of marijuana from 1999–2017, use of mushrooms twice around 2000–2001, and use of cocaine
on two occasions, in 1997 and 2001. Id. at 99; Ex. 15 at 41; Ex. 16 at 80–82.
In 2018, the Individual was investigated for Criminal Sexual Penetration. The Individual admitted
to having sexual intercourse with the alleged victim but declared it was consensual. Ex. 5 at 1; Ex.
4 at 1. The alleged victim claimed that the encounter was initially consensual, but, at some point,
she wanted to stop, and the Individual did not listen. Ex. 4 at 1. No charges were ever filed. Id.
In Exhibit 13, which is a copy of the police report, the Individual’s fiancée stated that in June 2020,
her young relative came to stay in the home that the Individual, his fiancée, and their children
shared. Ex. 13 at 10. The young relative was having issues at home and was hospitalized for
suicidal ideation. Id. According to the fiancée’s written statements submitted to both the police
and at the hearing, the young relative pleaded to come live with them. Id.; Ex. A at 2.
Regarding the 2020 sexual penetration charge, according to the police report, the young relative
alleged that one evening, after coming to live with the family, she was in bed with the Individual’s
child, and they asked the Individual to read them a story. Ex. 13 at 5. The Individual got into the
bed and began reading with them, and eventually the Individual’s child fell asleep. Id. At this point,
the young relative alleged, the Individual began touching her buttocks underneath her clothes and
put his fingers in her “private part.” Id. The young relative was unsure what the Individual was
doing with his hand that wasn’t touching her, but “she could hear a weird sound coming from his
mouth.” Id. She said that she was crying and telling the Individual to stop; she said she kept closing
her legs, but he told her to stop. Id. Eventually, he left the room. Id. The next day, the young
relative said, the Individual told her that “if she told anyone he would come back for her.” Id. She
2 In addition to the charges listed on the SSC, the Individual presented evidence that he was charged with Speeding in
July 2020 and January 2022. Ex. D at 7. The LSO did not raise either of these charges in the SSC.
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told the Individual’s child, who did not believe her, and then the young relative called her mother
to tell her. Id. Her mom then came to pick her up from the Individual’s home, and later called the
Individual’s fiancée to talk to her about what had happened. Id. The young relative was taken for
a sexual assault examination after her mother reported the alleged assault to the police. Id. This
examination came back “consistent with the history provided” but “the majority of exams in
sexually abused children are normal or non–specific regardless of the type of sexual acts involved.”
Id. DNA tests performed on the underwear that the young relative was allegedly wearing the night
of the alleged assault did not detect any male human DNA. Ex. E at 1. The police report filed about
this incident also contains a handwritten allegation that the Individual sexually assaulted the young
relative on a previous occasion. Ex. 13 at 3. This incident was not mentioned in the narrative
incident report filed by the police department, and, in fact, the report states the young relative
“clarified . . . that was the only time this occurred.” Id. at 8.
The Individual and his fiancée have lived together for 12 years, although they have been acquainted
15 years and share two children. Tr. at 51. The fiancée testified that her young relative had come
to live with her and the Individual after experiencing some serious mental health challenges that
included a period of hospitalization. Id. at 20, 52; Ex. A at 2. The fiancée and the Individual felt
that their home would be a safe environment for the young relative because they could provide
stability and the fiancée has professional training in helping children with “various issues.” Id. at
60.
The fiancée’s account of the time surrounding the alleged offense differed from that of the young
relative.3 Two days before the alleged assault was reported to the Individual’s fiancée and the
police, the Individual permanently sent the two family dogs away because the children had not
been doing their part to take care of the animals. Ex. 13 at 11; Tr. at 30. The children, including
the young relative, were extremely upset by this development. Ex. A at 4. The next day, i.e., the
day of the alleged assault, the young relative was upset that the Individual had made the children
clean up a mess that they had made in the backyard and that the Individual had chained up their
bikes because she had been disrespectful when the Individual had initially asked her to help clean
up. Id. The day after the alleged assault, according to the Individual’s fiancée, everything at the
home seemed normal. Ex. A at 4. The Individual’s children and the young relative were “playing
and laughing together.” Id. The two children went to the mall with the young relative’s
grandmother. Id. Following the trip to the mall, the young relative’s mother came and took her
daughter back up to her home for the weekend. Tr. at 31. The young relative hugged the fiancée
and the Individual, telling them that she loved them and would see them when she came back. Id.;
Ex. 13 at 7. Shortly after the young relative left the house with her mother, the fiancée received a
call from the young relative’s mother informing her of the young relative’s allegations. Tr. at 33.
The fiancée asserted that after receiving the call and realizing that the young relative was not
returning to her home, she requested the return of a cell phone she had given to the young relative
while she was living in her home. Ex. A at 4. The phone was eventually returned but had been
wiped clean of all data and the sim card removed. Id.
3 The Individual did not testify about the incident underlying the charges because they are still pending. Tr. at 20, 60–
61.
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The fiancée does not find the young relative’s claims to be credible for several reasons. First, the
fiancée explained that her young relative’s story changed on multiple occasions. Tr. at 34. She also
noted that she could see into the room where her young relative was on the bed with her child and
the Individual from her bedroom and that the doors to both rooms are always open. Id. at 39; Ex.
F. The fiancée did not hear her young relative crying that night or any other unusual sounds. Tr. at
39. She stated to the police that her child, who was allegedly in the bed with the Individual and the
young relative, is not a heavy sleeper and “would have woken up with any movement on the bed.”
Ex. 13 at 10. The fiancée also testified that she spoke to her children, including the child who was
allegedly in the bed at the time of the assault, and neither of them said that they had heard or seen
anything the night of the alleged assault. Tr. at 39–40. Finally, she asserted to the police that “I
don’t care who [the Individual] is to me, I would have reported it” if something had happened to
the young relative.4 Ex. 13 at 11. The Individual reported the allegations to his supervisor the next
business day after the phone call to his fiancée from the young relative’s mother. Id. at 61–64.
Among the Individual’s exhibits were records from the young relative’s school, indicating that she
had received a five-day in school suspension for “[f]alse accusations against a male staff member”
involving a claim of inappropriate conduct by the school janitor. Ex. B. The Individual’s first
exhibit, which is a statement from the fiancée, also claims that the young relative lies regularly,
including claiming without evidence that her stepfather was beating her, telling her grandfather
that all her teeth had been knocked out, and saying that a vape pen found in her jewelry box in her
mother’s home was her cousin’s rather than hers. Ex. A at 2–3. The fiancée claimed that the young
relative’s mother told her that the young relative lies regularly when the fiancée mentioned to the
young relative’s mother what the fiancée had been told about her stepfather beating her. Id. The
fiancée heard the young relative attempt to force two other people lie about who the vape pen
belonged to. Id.
In August 2020, the Individual was charged with Criminal Sexual Penetration and Criminal Sexual
Contact. Ex. 1. In October 2021, a grand jury indicted him on those charges. Id. The charges were
still pending at the time of the hearing.
V. ANALYSIS
The LSO raised security concerns under Guideline J. Guideline J was properly invoked by the
LSO based on the charges made against the Individual as well as his pattern of criminal behavior.
Conditions that could mitigate security concerns under Guideline J include:
(a) 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;
(b) the individual was pressured or coerced into committing the act and those
pressures are no longer present in the person’s life;
4 The fiancée works as a licensed social worker in her state and works for her state children, youth, and families
department in a position to protect children, especially in the area of behavioral health.
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(c) no reliable evidence to support that the individual committed the offense; and
(d) 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 Guidelines at ¶ 32.
The Individual has a substantial pattern of criminal behavior. Although most of the numerous
criminal charges he faced prior to 2018 were traffic violations, the Individual has faced two
accusations of criminal sexual penetration, one of which is recent. While the 2018 sexual
penetration claim did not result in charges against the Individual and he claimed that the activity
was consensual, these allegations are very serious. Regarding the most recent sexual penetration
claim, although the Individual presented evidence that the young relative has fabricated a claim of
inappropriate conduct by a school janitor in the past and that his fiancée was near when the alleged
event occurred but did not hear or see any inappropriate activity, he has not been cleared of the
charges at this time. As stated above, my consideration of the Individual’s behavior must consider
whether restoring the Individual’s access authorization will endanger the common defense and
security and is clearly consistent with the national interest. 10 C.F.R. § 710.7(a). Where there is
any doubt as to an individual’s access authorization eligibility, there is a presumption against
restoring his security clearance.
Based on the serious charges against the Individual, I find that he has not mitigated the concerns
raised by his extensive criminal record. The most recent alleged criminal activity occurred in June
2020, and he was indicted in October 2021. There is no evidence that he was pressured into
committing the alleged criminal act. While there is some evidence in the record to support that the
Individual may not have committed the 2020 sexual penetration offense, which goes towards the
mitigating condition at ¶ 32(c), he has been indicted on those charges and those charges are
currently pending. Moreover, the Individual has admitted to most of the dozens of instances of
criminal activity listed in the SSC, which span a period of twenty years. That extensive record of
criminal activity, without more, by its own nature, loudly questions the Individual’s ability or
willingness to comply with laws, rules, and regulations. Thus, although there may be some
question as to the credibility of the 2020 accusations against him, viewed in light of the
Individual’s long-standing pattern of criminal involvement, the totality of the derogatory
information precludes me from finding that he has mitigated the security concerns cited by the
LSO under Guideline G. Finally, the Individual did not present any evidence that he has undergone
any rehabilitation.
Therefore, I find that the Individual has not mitigated the Guideline J concerns.
VI. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Guidelines J of the
Adjudicative Guidelines. After considering all the evidence, both favorable and unfavorable, in a
comprehensive, common–sense manner, including weighing all the testimony and other evidence
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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. Accordingly, the Individual has
not demonstrated that restoring his security clearance would not endanger the common defense
and would be clearly consistent with the national interest. Therefore, I find that the Individual’s
access authorization should not be restored. This Decision may be appealed in accordance with the
procedures set forth at 10 C.F.R. § 710.28.
Janet R.H. Fishman
Administrative Judge
Office of Hearings and Appeals