PSH-23-0033

*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 1, 2022 ) Case No.: PSH-23-0033
)
__________________________________________)
Issued: April 26, 2023
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Administrative Judge Decision
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Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXX (hereinafter referred to as “the
Individual”) to hold an 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 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 has a history of criminal conduct including domestic violence against his young
son and his former girlfriend (the Ex) who is the mother of his children. Exhibit (Ex.) 15 at 4–5.
In March 2018, the Individual was involved in an incident at a casino where he was physically
confronted by the casino’s security officers. Ex. 12 at 8; Ex. 15 at 3. He was detained by police
for about 45 minutes and then released without being charged. Ex. 12 at 8; Ex. 15 at 3.
On May 18, 2018, the Individual, after observing the Ex dancing with a man at a casino, threw a
laser pointer at her, striking her on her ankle. Ex. 12 at 9; Ex. 15 at 3; Tr. at 28. The Individual
also threw the laser pointer at the Ex’s car window with sufficient force to break it. Ex. 12 at 9;
Ex. 15 at 3. The casino’s security officers summoned police, and the Individual was eventually
fined $1,000. Ex. 15 at 3. After this incident, the girlfriend filed for a temporary restraining order,
which was eventually rescinded when the couple reconciled. Ex. 5 at 4.
1 Under the regulations, “Access authorization means 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
On October 16, 2021, the Individual was involved in another incident at a casino, which began
when he threw an empty water bottle at the Ex, resulting in his forceful ejection by the casino’s
security officers. Ex. 12 at 19–20; Ex. 15 at 4. While the police were summoned, no charges were
filed against the Individual. Ex. 15 at 4.
On March 25, 2022, the Individual hit the Ex on her head knocking her to the ground and then
struck his (then five-year old) son with sufficient force to “bust his [son’s] lip.” Ex. 15 at 4. On
March 28, 2022, a court issued an Emergency Temporary Domestic Violence Order of Protection
because of this incident. Ex. 10 at 2, 11. The court found that “cause” existed to believe that the
Individual had had hit the Ex, thrown her to the ground, and had punched his five-year old son.
Ex. 10 at 5–6. The court’s opinion granting that order states that the Ex testified that the Individual
hit her “in the head from behind and knocked her to the ground” and then hit her several times.
Ex. 10 at 5. The Ex further testified that, during that same incident, the Individual punched their
five-year old son in the face with a closed fist causing the child to fly into the air from the force of
the blow. Ex. 10 at 5. The court reported that the Ex submitted photographs documenting the
resulting injuries which showed the child’s swollen face. Ex. 10 at 5. When the Individual was
questioned by police about this incident, he claimed that his son had been injured when the Ex’s
erratic driving had caused his face to hit the seat of the car because he did not think that the police
would believe the actual story. Ex. 15 at 4. The Individual subsequently provided a different
account of this incident, stating that he accidentally struck his son when he raised his arm to keep
his son away. Ex. 15 at 4; Tr. at 19. The Individual admitted consuming eight beers in six hours
prior to this incident. Ex. 15 at 4. After a subsequent hearing on April 27, 2022, the court entered
an extended Domestic Violence Protective Order against the Individual. Ex. 6 at 2. Eventually,
unspecified criminal charges were filed against the Individual in Federal District court because of
this incident.2 Ex. C at 1–2.
During a hearing held on October 5, 2022, to consider the Ex’s request for an extension of a
“domestic violence order of protection” as well as her allegations that the Individual had violated
that order on three occasions, the Individual stated to the court that he had not consumed alcohol
since July 2022. Ex. 7 at 22, 26. However, during a psychological evaluation conducted by a
DOE Psychologist (the Psychologist) on September 26, 2022, the Individual admitted that he had
been consuming alcohol regularly since August 2022 and had last consumed alcohol on September
25, 2022.3 Ex. 15 at 5.
2 These charges do not appear in the Statement of Security Concerns (SSC). They only entered the record when a
Federal public defender (the PD) representing the Individual submitted an email to me on behalf of the Individual,
which appears in the record as Ex. C.
3 The local security office (LSO) had requested that the Psychologist evaluate the Individual to determine if he had an
alcohol use or mental health disorder. Ex. 15 at 1. The Psychologist conducted a clinical interview of the Individual
on September 22, 2022, and issued a report on September 26, 2022, in which he concluded that the Individual did not
have any condition that would impair his judgment, reliability, stability, or trustworthiness. Ex. 15 at 3, 9. Information
obtained by the Psychologist as part of his evaluation, however, provides the factual basis for several of the security
concerns appearing in the SSC that is the subject of the instant proceeding.
3
The Individual has also been cited with several traffic tickets. In March of 2018, the Individual
was cited with No Proof of Insurance.4 Ex. 12 at 8. In June of 2019, the Individual was cited for
Expired Registration of a Motor Vehicle, No Proof of Insurance, and No Driver’s License.5 Ex. 12
at 9. In August of 2021, the Individual was cited for Speeding and Reckless Driving. Ex. 12 at
11. On September 5 of the same year, he was cited for Speeding.6 Ex. 12 at 11.
The local security office (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 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. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e), and (g), I took
testimony from one witness, the Individual. See Transcript of Hearing, Case No. PSH-23-0033
(hereinafter cited as “Tr.”). The LSO submitted seventeen exhibits, marked as Exhibits 1 through
17. The Individual submitted three exhibits, marked as Exhibits A through C.
Exhibit A is a copy of a court order suspending the Domestic Violence Protective Order against
the Individual. Ex. A.
Exhibit B is a copy of the receipt showing that the Ex paid to have the Protective Order suspended.
Ex. B.
Exhibit C is an email dated March 23, 2023, to me from a public defender (PD) who explained
that she is representing the Individual in Federal court against unspecified criminal charges arising
from the March 25, 2022, incident. Ex. C at 1. The PD states in the email: “We are working
toward a pretrial diversion outcome that would result in the charges against [the Individual] being
dropped.” Ex. C at 1. The PD further notes that the Individual is now involved in his children’s
lives and is complying with his employer’s requirements that he submit to biweekly urine tests and
complete a six-week alcohol awareness program. Ex. C at 1. She further reports that, as a
condition of his pre-trial release, the Individual is required to abstain from alcohol use. Ex. C at
2.
II. The Notification Letter and the Associated Security Concerns
The summary of security concerns (SSC) attached to the Notification Letter informed the
Individual that information in the possession of the DOE creates substantial doubt concerning his
eligibility for a security clearance under Guideline J (Criminal Conduct), citing the Emergency
Temporary Domestic Violence Order of Protection filed against the Individual in March of 2022,
the four incidents of physical violence that occurred between 2018 and 2021, his provision of false
4 This charge was eventually dismissed. Ex. 5 at 3.
5 These charges were dismissed. Ex. 5 at 4.
6 These speeding incidents resulted in fines and court fees, which the Individual paid. Ex. 5 at 4.
4
testimony about his alcohol use during a court proceeding, and his four traffic citations. These
allegations adequately justify the LSO’s invocation of Guideline J. The Adjudicative Guidelines
state: “[c]riminal activity creates doubt about a person’s judgment, reliability, and
trustworthiness.” Adjudicative Guidelines at ¶ 30. Among those conditions set forth in the
Guidelines that could raise a disqualifying security concern is “[e]vidence (including, but not
limited to, a credible allegation, an admission, and matters of official record) of criminal conduct,
regardless of whether the individual was formally charged, prosecuted, or convicted.”
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 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 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.
IV. Hearing Testimony
At the hearing, the Individual testified on his own behalf. The Individual confirmed in his
testimony that all the incidents mentioned in the SSC occurred, though he disputed some details
about his conflicts with the Ex. Tr. 27–39. The Individual provided his version of the March 25,
2022, incident in his testimony:
[The Ex] started hitting me and hitting me. And I told her, “Stop.” And she kept
hitting me. And I finally just got mad and I hit her back and when I hit her back,
she went -- she fell down to the floor, ‘cause like, I kind of like -- like hit her where,
like, I don’t know, like off guard, I guess. And I did. I admit to that, you know. . . .
I was just mad ‘cause she kept hitting me and hitting me. And so when I did, she
fell, and my son went running up to us. And she was getting back up to come at me,
and that’s when I stuck my hand out, with the back of my hand to push my son
away, ‘cause she was coming at me, and pretty much she was running to me, and I
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stuck out my hand at the same time and smacked him in the face. And I didn’t mean
to. He fell to the floor, and at that point I just felt so just like embarrassed. I just felt
so, just like, I don’t know, like just -- I don’t know how to even explain it. I just --
I don’t know, just being from a dad to just someone who I ain’t, just -- I don’t know,
I just took off. I just took off walking.
Tr. at 19.
The Individual testified that because of this incident, the Ex sought and obtained an emergency
temporary domestic order of protection preventing him from contacting her and their children for
a period of six months. Tr. at 12. After the Individual complied with the order for the first six
months, the order was modified to allow the Individual to see his children. Tr. at 12, 22. The Ex
requested that the protective order be dropped regarding the Individual’s contact with her, and a
judge granted that request in January of 2023. Tr. at 40.
When the Individual was confronted with the discrepancy between his testimony at a October 5,
2022, court hearing that he had not had a drink since July 2022 and his September 26, 2022,
statement to the Psychologist that he had been consuming alcohol regularly since August 2022,
the Individual testified:
‘Cause I’m not -- so I’m not really good with dates and times, stuff like that. So
when he was asking me, I had to go back and check to see when, because it’s, I
don’t know, just, time has been – tell you the honest truth, I don’t remember. I
pretty much just -- see, the 4th of July, I think it was, like 4th of July weekend was
the last time I had alcohol. And then I didn't have alcohol for a while because I was
going to those classes here. . . . And I wasn’t drinking for a while. And then I --
when I went, they were saying like, you know, like pretty much, like you can drink
alcohol to a certain amount, that -- that you can drink, you know, here and there,
but not like go on binges, don’t do this and that. So I just -- I don’t know. I’m not
sure. I don't know, like -- [.]
Tr. at 25–26. The Individual then denied that he was intentionally trying to mislead the court. Tr.
at 26.
When the Individual was asked about the October 16, 2022, incident where he threw a water bottle
at the Ex, he claimed that he did not throw the water bottle at the Ex but rather at someone else.7
Tr. at 32.
The Individual testified that the Ex was employed at the casino where several incidents occurred.
Tr. at 30. The Individual testified that the Ex would badmouth him to the other casino employees
and the result was that they did not like him and would give him a hard time. Tr. at 30. He is
banned from that casino. Tr. at 30. The Individual testified that he is no longer in a relationship
with the Ex, which he believes will help them to break the “cycle of violence” that contributed to
the incidents mentioned in the SSC. Tr. at 26, 56. The Individual testified that the Ex “would hit
7 In his response to an August 3, 2022, Letter of Interrogatory, the Individual admitted that he had thrown the water
bottle at the Ex. Ex. 12 at 19.
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me in places where people can’t see, scratch me places where people can’t see, and then, you
know, I get hit and hit.” Tr. at 57. He stated that he is in a new relationship that is happier and
healthier and will prevent him from repeating his pattern of violent behavior. Tr. at 49.
The Individual admitted that alcohol had played a part in the incidents, since it had “fueled the
situation,” even though it was not the only cause. Tr. at 50. He testified that he last used alcohol
about three weeks before the hearing. Tr. at 50. The Individual stated that he completed an alcohol
education program and enrolled in a substance abuse program. Tr. at 23, 60–62. However, he has
not undertaken any counseling or anger management courses, even though a judge had suggested
that he do so. Tr. at 33, 35, 62–63. He testified that the possibility of losing his clearance and his
job and the potential of losing the ability to see his children has motivated him to take steps to
avoid future incidents of violence and follow rules and laws. Tr. at 47, 54. The Individual further
explained that he now knows that he contributed to the unhealthy relationship he was in by reacting
to provocation from the Ex, and he intends to ignore any future provocation on her part or to report
it if appropriate. Tr. at 57–58. The Individual testified that he must meet with a probation officer.
Tr. at 52.
V. Analysis
The Individual has a significant history of sometimes violent criminal activity which evidences
poor impulse control, disregard for the rule of law, and a lack of trustworthiness. While the
Individual has taken a mandated alcohol education class and is now subject to substance abuse
screening and court supervision, he has not sought counseling or to further educate himself on how
to avoid future criminal activity. While the Individual claims that he is now in a new, healthier
romantic relationship, that testimony is uncorroborated in the record.
The Adjudicative Guidelines provide four conditions that can mitigate security concerns arising
under Guideline J. Adjudicative Guidelines at ¶ 32.
First, the Adjudicative Guidelines provide that an individual may mitigate security concerns under
Guideline J if “[s]o 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 Guidelines at ¶ 32(a).
In the present case, the most recent incidence of criminal behavior occurred approximately one
year prior to the hearing, and the record shows that the behavior was not particularly unusual for
the Individual. Accordingly, I find that the Individual has not satisfied the mitigating condition set
forth at ¶ 32(a).
Second, the Adjudicative Guidelines provide that an individual may mitigate security concerns
under Guideline J if “[t]he individual was pressured or coerced into committing the act and those
pressures are no longer present in the person's life.” Adjudicative Guidelines at ¶ 32(b). In the
present case, there is no indication that the Individual was pressured or coerced into committing
the acts in question here. Accordingly, I find that the Individual has not satisfied the mitigating
condition set forth at ¶ 32(b).
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Third, the Adjudicative Guidelines provide that an individual may mitigate security concerns under
Guideline J if there is “[n]o reliable evidence to support that the individual committed the offense.”
Adjudicative Guidelines at ¶ 32(c). In the present case, the evidence in the record, including the
Individual’s own admissions, indicates that he committed the offenses at issue. Accordingly, I
find that the Individual has not satisfied the mitigating condition set forth at ¶ 32(c).
Finally, the Adjudicative Guidelines provide that an individual may mitigate security concerns
under Guideline J if “[t]here 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(c). In the present case, there is little
or no evidence of rehabilitation. The Individual has not shown that he obtained counseling or other
assistance to help him process his anger in a non-violent manner. Moreover, even though he admits
that alcohol has contributed to his violence, he continues to consume alcohol in violation of his
pretrial release conditions. Accordingly, I find that the Individual has not satisfied the mitigating
condition set forth at ¶ 32(d).
In light of the foregoing, I find that the Individual has not shown that any of the mitigating
conditions set forth in Guideline J at ¶ 32 are present in the instant case.
V. 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 not mitigated the security concerns raised under Guideline J. 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, the
Individual’s security clearance should not be restored. This Decision may be appealed in
accordance with the procedures set forth at 10 C.F.R. § 710.28.
Steven L. Fine
Administrative Judge
Office of Hearings and Appeals