PSH-23-0042

*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: January 10, 2023 ) Case No.: PSH-23-0042
)
______________________________________)
Issued: May 16, 2023
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Administrative Judge Decision
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Katie Quintana, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX (hereinafter referred to as “the
Individual”) to hold an access authorization under the United States Department of Energy’s
(DOE) regulations, as 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 be restored.
I. Background
The Individual is employed by a DOE contractor in a position that requires him to hold a security
clearance. In May 2022, the Individual was arrested and charged with Domestic Battery (1st). Ex.
1. Due to security concerns related to the Individual’s criminal conduct, 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. Id. In the Summary
of Security Concerns (SSC) that accompanied the Notification Letter, the LSO explained that the
derogatory information raised security concerns under Guideline J (Criminal Conduct) of the
Adjudicative Guidelines. Id.
Upon receipt of the Notification Letter, the Individual exercised his right under the Part 710
regulations to request an administrative review hearing. Ex. 2. The Director of the Office of
Hearings and Appeals (OHA) appointed me the Administrative Judge in the case, and I
subsequently conducted an administrative hearing in the matter. At the hearing, the DOE Counsel
submitted fifteen numbered exhibits (Exs. 1–15) into the record. The Individual introduced one
lettered exhibit (Ex. A.) into the record and presented the testimony of three witnesses, including
himself. The hearing transcript in the case will be cited as “Tr.” followed by the relevant page
number.
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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IV. Regulatory Standard
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 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. Id. § 710.26(h).
Hence, an individual is afforded the utmost latitude in the presentation of evidence to mitigate the
security concerns at issue.
IV. Notification Letter and Associated Security Concerns
As previously mentioned, the Notification Letter included the SSC, which sets forth the derogatory
information that raised concerns about the Individual’s eligibility for access authorization. The
SCC specifically cites Guideline J of the Adjudicative Guidelines. Ex. 1. Guideline J addresses
criminal conduct. Adjudicative Guidelines at ¶ 30. Such conduct “creates doubt about a person’s
judgment, reliability, and trustworthiness” as “[b]y its very nature, it calls into question a person’s
ability or willingness to comply with laws, rules, and regulations.” Id.
Regarding Guideline J, the LSO cited and alleged that, in May 2022, the Individual was arrested
and charged with Domestic Battery (1st), after he and his girlfriend engaged in a physical
altercation, during which the Individual punched his girlfriend in the face using a closed fist. Ex.
1. The LSO additionally cited that, in a June 2022 Letter of Interrogatory (LOI), the Individual
admitted that he and his girlfriend engaged in a physical struggle prior to the arrest. Id.
IV. Findings of Fact
A May 2022 police report (Report) indicates that law enforcement was dispatched in response to
a “Family Disturbance” which occurred in a hotel. Ex. 8 at 7. According to the call that requested
police assistance, “a male adult had hit a female.” Id. The female was identified as the Individual’s
girlfriend (Girlfriend), and according to the paramedic who transported the Girlfriend to the
hospital, the Girlfriend stated that “her boyfriend[,] later identified as [the Individual,] had punched
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her in the face.” Id. Upon seeing the Girlfriend, a police officer observed dried blood on the
Girlfriend’s face, swelling on the left side of her face near her jaw, and a cut on her left eyebrow.
Id. Another officer observed a lump on the back of her head. Id.
According to the Report, the Girlfriend told the officers that she and the Individual had been
consuming alcohol throughout the day, and “she did not remember what happened and how she
got back to the hotel room.” Id. However, the police Report indicated that the Girlfriend reported
that she and the Individual engaged in an argument regarding “their ex-husband and an ex-wife,”
and she “had woken up at one point and found herself on the floor of the hotel room and [the
Individual] was on top of her.” Id. The Report noted that the Girlfriend stated that the Individual
had punched her in the face with a closed fist, and although she and the Individual had engaged in
previous arguments, they had never been violent or physical in nature. Id.
The Report noted that the Girlfriend “seemed semi-intoxicated and coherent,” and she “later
change[d] her story and stated that she did not remember who was on top of or punching her.” Id.
Additionally, the Report stated that the Girlfriend responded with “[‘]I don’t know[’] for questions
she had previously answered . . . and later stated she could not remember any details of the
incident.” Id. The Report also indicated that the Girlfriend refused to be photographed. Id.
According to the Report, when law enforcement encountered the Individual, he smelled strongly
of alcohol and had a scratch on his nose, a small cut on his bottom lip, and an abrasion on his left
knee. Id. Law enforcement noted that the Individual stated that the injuries were “from people
outside,” and he “did not know what happened” in the hotel room between him and the Girlfriend.
Id. at 8. Law enforcement subsequently arrested the Individual. Id.
In his June 2022 LOI,2 the Individual explained that he and the Girlfriend took a vacation to
celebrate their relationship and progress in their careers. Ex. 12 at 1. He reported that, around noon,
he and the Girlfriend walked to a nearby hotel to eat. Id. Their plan was to tour the sites and perhaps
go dancing. Id. However, they stopped in a bar and began consuming straight whiskey. Id. The
Individual estimated that they each consumed five shots over a ninety-minute period. Id. Realizing
that they had consumed too much alcohol, the Individual recalled that they returned to the hotel
room to rest. Id. According to the Individual’s response to the LOI, the Girlfriend wanted to go
back out, but the Individual did not believe that was “a good idea,” and the couple began arguing.
Id. The Individual stated that the Girlfriend then began vomiting on the floor and trying to leave
the room despite being “barely [able to] stand up.” Id. The Individual noted that he has “several
very spotty memories” regarding preventing her from leaving the room, including “hugging her
from behind.” Id.
According to the LOI, the Girlfriend later calmed down and was lying on the bed. Id. The
Individual recalled “smacking her on the butt to keep her awake” when another argument ensued
2 The Individual noted that, in completing the LOI, he and the Girlfriend had to piece together the chain of events
leading up to the arrest as they both have blank spots in their memory due to their alcohol consumption. Ex. 12 at 1.
He noted that the Girlfriend was able to obtain additional information about the events preceding the arrest the
following day. Id.
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regarding the Individual being on his phone. Id. The Individual remembered the Girlfriend trying
to grab the phone from his hands. Id. He noted that the Girlfriend “kind of rolled/crawled over
[him] and went to walk . . . around the bed, tripped and fell towards the dresser.” Id. The Individual
stated that he then “pulled her up and she had a cut on her face.” Id. He stated that he does not
know what caused the cut but believes it could have occurred as a result of the fall or “in the
struggle for [the] phone.” Id. The Individual stated that he has “no recollection of ever punching
her in the face.” Id.
The Individual noted that, after he pulled the Girlfriend off the floor, she never said anything about
being punched. Id. at 2. The Individual recalled the Girlfriend going to the bathroom but later
realized that she had left the room. Id. According to the LOI, the day following the incident, hotel
security told the Girlfriend that it received a report from someone that she was staggering around
the hotel bleeding, and because she couldn’t speak clearly, hotel security called for paramedics.
Id.
Ultimately, the Individual acknowledged that there was a physical struggle, but he maintained that
it was a physical struggle to keep the Girlfriend in the room and safe until she was no longer
intoxicated. Id. at 5. He asserted that he does not believe that he punched her in the face and does
not believe that he would do that. Id. However, the Individual acknowledged that neither he nor
the Girlfriend can reliably state how the Girlfriend obtained the cut. Id.
The district attorney did not prosecute the Individual as a result of the incident; however, due to
the role of alcohol in this incident, the Individual underwent a psychological evaluation in
September 2022 with a DOE psychologist. Ex. 2 at 7; Ex. 13. The psychologist determined that
the Individual does not have an alcohol use disorder nor does he habitually or binge consume
alcohol to the point of impaired judgment. Ex. 13 at 6.
At the hearing, a coworker (Coworker) testified on the Individual’s behalf. Tr. at 15. The Coworker
testified that she has worked with the Individual for approximately six years. Id. She felt that, over
the years, she has come to know the Individual “a lot better” and believes him to be a “great
person.” Id. at 15, 17. The Coworker testified that she finds the Individual to be reliable and “one
of the nicest people you’ll ever meet.” Id. at 17. She stated that she has never observed the
Individual to be violent, and to the contrary, she has found him to be “the peacemaker” in meetings
with “very aggressive” individuals. Id. at 20. The Coworker felt that the Individual would not be
“capable of committing criminal acts.” Id. at 22.
The Girlfriend also testified on behalf of the Individual. She stated that she met the Individual in
the autumn of 2020 and began living with him approximately a year later. Id. at 25, 27. She stated
that the couple decided to have a “celebration trip” because their “lives were just going really,
really [well.]” Id. at 27. In recalling the day of the incident cited in the SSC, the Girlfriend stated
that she was “really super excited” to be at the destination and was “ready to party.” Id. at 27–28,
38. To the best of her recollection, she remembered getting to a restaurant for brunch and drinking
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a Mimosa and a Long Island Iced Tea.3 Id. at 28, 31. After leaving the restaurant, the Girlfriend
testified that the couple went into a bar, where she “kind of just lost it.” Id. at 29. At the bar, she
recalled that they were having “good time,” and she was “already pretty intoxicated.” Id. at 29, 32.
She noted that she knew that her behavior was altered as she was drinking straight whiskey, which
was out of character for her. Id. at 32. The Girlfriend testified that she eventually got up to use the
restroom, and in the restroom, she remembered looking at herself in the mirror and telling herself
“you better settle down . . . it’s time to chill out.” Id. at 29. Although she recalled coming back to
her seat in the bar, her memory thereafter is so limited that she feels that the day did not “exist
after that moment.” Id. at 29–30. The Girlfriend testified that her next memory was waking up in
the hospital. Id. at 33.
Upon waking up in the hospital, the Girlfriend recalled asking for the Individual. Id. at 34. She
testified that the hospital nurse told her that she came in alone, and the nurse did not know what
happened to her. Id. According to the Girlfriend, the nurse was only able to tell her that she heard
that the Girlfriend was roaming around a hotel, bleeding, with a gash on her eye, unable to
communicate well. Id. The Girlfriend testified that her only injury was a gash above her eyebrow
that a physician glued together. Id. at 35–36. She noted that there was a slight discoloration near
the gash, but she stated that it was not a black eye and did not even amount to a bruise. Id. at 36.
With regard to the Report indicating that she had a swollen jaw and lump on the back of her head,
the Girlfriend testified that these details were not accurate. Id.
The Girlfriend stated that she did not become aware that the police had been involved until she
spoke with hotel security the day after the incident. Id. at 38. She stated that she has no memory
of ever speaking with the police. Id. at 44. She indicated that, the day following the incident, hotel
security showed her video footage of her and the Individual returning to the hotel, laughing and
dancing, and the next time she was seen on the footage, she was wandering “almost every level”
of the hotel. Id. at 39. She noted that it appeared that she was looking for her room. Id. The
Girlfriend affirmed that she did not remember anything that occurred in the hotel room or “being
lost in the hall.” Id. at 40. She stated that hotel security told her that the reason paramedics and law
enforcement were called was because she was not able to “make out words;” they could not
understand what she was saying; and they could not help her. Id. at 41–42. The Girlfriend stated
that because of her lost memories, she has been forced to piece together much of what occurred
from talking to other people, including hotel security and the Individual. Id. at 45.
The Girlfriend testified that, although the couple has had disagreements in their relationship, they
have good communication skills, and there has never been any aggression. Id. at 48. She stated,
however, that in her past, she was involved in a physically abusive relationship with an ex-
boyfriend.4 Id. She noted that this past relationship left her mentally damaged, and she was
eventually diagnosed with Post Traumatic Stress Disorder (PTSD). Id. at 48, 58, 70. The Girlfriend
3 I note that the Girlfriend was struggling to remember the quantity and type of beverage she consumed at the
restaurant. See Tr. at 28, 30-31.
4 The Girlfriend noted that there is an error in the Report, where it indicates that she and the Individual argued over
her ex-husband. Tr. at 48.
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elaborated, stating, the ex-boyfriend “struck me in my face . . . he punched me in my eye, and . . .
everything in that statement [to the police] -- it literally is exactly what happened to me in that
relationship [on the] night” of the physical abuse. Id. at 57. The Girlfriend additionally explained
that when her ex-boyfriend punched her in the eye, it caused severe damage to her entire face that
required reconstructive surgery. Id. at 61. She explained that, given the minor cut she sustained,
what occurred in the hotel was “not a punch. I assure you.” Id. She noted that, in reading the
Report, she thought, “it’s literally what had happened to me with my [ex-boyfriend], everything
. . . it was almost like it played back.” Id. at 57. The Girlfriend opined that when she became lost
in the hotel, she must have begun to panic and relive the trauma that her ex-boyfriend inflicted. Id.
at 59-60. She testified that she knows “for a fact that [the Individual] did not touch [her], because
that’s not [the Individual’s] character.” Id. at 55.
Lastly, the Individual testified on his own behalf. Expanding on the information he provided in the
LOI, the Individual stated that he and the Girlfriend went to brunch at a large hotel around 11:30
a.m., where he ordered and consumed the drink offering, which was one Mimosa and two Long
Island Iced Teas. Id. at 75. He explained that the brunch restaurant was in the back of a large hotel,
and after brunch, he and the Girlfriend began walking to the front of the hotel, passing shops,
games, and bars. Id. at 75–76. According to the Individual, he stopped and drank a double shot of
whiskey. Id. at 76. The Individual testified that, around 12:45 p.m., he and the Girlfriend stopped
at a bar at the front of the hotel, where he consumed five shots of whiskey. Id. at 76–77. He stated
that, at this point, he noticed that the Girlfriend was stumbling, so he wanted to take her back to
their hotel room to rest. Id. at 78. The Individual noted that on the way back to the hotel, he and
the Girlfriend were “dancing around,” and he scratched his face on some material that was covering
scaffolding on the street, explaining the scratches that were noted in the police report.5 Id. at 97–
98. He testified that, although he remembers walking back to their hotel, he does not remember
getting on the elevator to go up to their room. Id. at 81.
In the hotel room, the Individual stated, he then remembered seeing the Girlfriend vomit over the
edge of the bed, helping her get cleaned up, and then lying in bed with her attempting to keep her
awake. Id. at 82. Next, he remembered the Girlfriend crawling over him trying to get his phone
and then hearing the Girlfriend “moaning and making noises.” Id. at 83. The Individual stated that
he got up, saw the Girlfriend face down at the foot of the bed, and picked her up. Id. He testified
that she was asking him to let her go because she wanted to go out, but he sat her on the bed and
walked into another part of the room. Id. He stated that when he came back, the Girlfriend had
blood pouring down her face. Id. at 84. The Individual noted that the Girlfriend then went to the
restroom to get a towel, and when she came back, she indicated that she wanted to go back out and
she was going to go “fix” the cut on her head. Id. at 85. He testified that he remembered the “room
swirling” and having a hard time staying awake. Id. at 86. The Individual stated that the next thing
he remembered was hearing a knock at the door and opening it to find the hotel staff with the
police, at which point, he was arrested. Id. at 86–88.
5 The Individual clarified that the injury on his knee that was noted in the police report was an old scab that occurred
a week prior. Tr. at 97–98.
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The Individual testified that, despite his memory lapses, he knows he did not intentionally hurt the
Girlfriend. See id. at 93, 113. He stated, “I will tell you 99.999 percent I would put money on
myself I would never do such a thing. . . . There is no way I would ever do that to her, or anybody
else.” Id. at 93. He argued, “why would I punch her in the face? It doesn’t make sense. I’m trying
to stop her from getting hurt. I had no . . . anger towards her.” Id. Furthermore, the Individual
added that he has no history of violence, was married for 22 years without any issues related to
domestic violence, and has never engaged in any violence or aggression with the Girlfriend,
outside of the allegations contained in the Report. Id. at 133.
VI. Analysis
I have thoroughly considered the record of this proceeding, including the submissions tendered in
this case and the testimony of the Individual and other witnesses during the hearing. In resolving
the question of the Individual’s eligibility for access authorization, I have been guided by the
applicable factors prescribed in 10 C.F.R. § 710.7(c) and the Adjudicative Guidelines. After due
deliberation, I have determined that the Individual has sufficiently mitigated the security concerns
cited by the LSO under Guideline J of the Adjudicative Guidelines. Therefore, I find that the
Individual’s access authorization should be restored. The specific findings that I make in support
of this decision are discussed below.
Regarding Guideline J, evidence of criminal conduct, “regardless of whether the individual was
formally charged, prosecuted, or convicted” can raise a security concern and may disqualify an
individual from holding a security clearance. Adjudicative Guidelines at ¶ 31(b). An individual
may be able to mitigate the concern if he shows:
(a) So much time has elapsed since the criminal behavior happened, or it happened
under such unusual circumstances, that it is unlike to recur and does not case 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;
(c) No reliable evidence to support that the individual committed the offense; and
(d) There is evidence of success rehabilitation; including, but not limited to, the
passage of time without the recurrence of criminal activity, restitution, compliances
with the terms of parole or probation, job training or higher education, good
employment record, or constructive community involvement.
Id. at ¶ 32.
Here, the security concern arises from the allegation that the Individual punched the Girlfriend in
the face during an argument. However, the only evidence supporting that specific allegation is the
Report. Upon examination of the document, I find various elements of the Report and the
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circumstances surrounding its construction to raise questions about its accuracy. See id. at ¶ 32(c).
First and foremost, according to the Girlfriend, law enforcement interviewed her while she was
intoxicated to such a degree that she cannot even remember giving a statement; yet, the Report
characterizes her solely as “semi-intoxicated.” Secondly, the Report indicates that, during the
interview, the Girlfriend gave contradictory statements, including that the Individual punched her
and, also, that she could not remember who punched her. The Report also indicates that she could
not remember any details of the incident. Furthermore, according to the Girlfriend, the Report
contains several errors, including the statement that the couple argued over her ex-husband, when
she only has an ex-boyfriend, and the description of her injuries, including a swollen jaw and lump
to the back of the head, which she claims she did not have.
Although I am aware that victims of domestic violence often change their stories to protect their
abusers, I do not find that to be the case here. I found the testimony of both the Girlfriend and the
Individual to be credible, especially the Girlfriend’s testimony regarding her description of her
previous experience with domestic violence. I found particularly compelling her suspicion that, on
the day of the incident, she was recounting the punch to the face by the ex-boyfriend in a moment
of panic heightened by intoxication. Furthermore, the relatively minor injury she described
resulting from the events in the hotel room is not consistent with the type of injury that would arise
from a violent punch to the face, which she described having previously suffered and which
required reconstructive surgery.
I acknowledge that by the Individual’s own testimony, there does appear to have been a scuffle of
some kind in the hotel room; however, I cannot find that it involved violence or aggression. I find
the Individual’s testimony regarding how he sought to keep the Girlfriend in the hotel room while
the effects of the alcohol subsided to be credible. Further, any additional physical altercations that
may have occurred appear to be the result of the debilitating effects of the substantial amounts of
alcohol the couple consumed. The record demonstrates that the district attorney declined to
prosecute the Individual regarding this incident, and the Individual has no history of violence or
aggression, in his previous 22-year marriage or in any other relationship, and I cannot find that an
act of violence occurred on this occasion. In light of the foregoing, I find that mitigating condition
(c) applies in this case. See id. at ¶ 32(c).
Regarding the remaining three mitigating factors under Guideline J, I do not find them to be
relevant in this case as I have not found that any criminal behavior occurred. See id. at ¶ 32 (a),
(b), (d). As such for the forgoing reasons, I find that the Individual has mitigated the security
concerns arising under Guideline J.
VII. Conclusion
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 have found that the Individual has brought forth sufficient evidence to resolve the
security concerns associated with Guidelines J. Accordingly, I have determined that the
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Individual’s access authorization should be restored. This Decision may be appealed in accordance
with the procedures set forth in 10 C.F.R. § 710.28.
Katie Quintana
Administrative Judge
Office of Hearings and Appeals