PSH-25-0022

United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
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Filing Date: November 7, 2024 ) Case No.: PSH-25-0022
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Issued: March 26, 2025
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX (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 be restored.
I. Background
A DOE Contractor employs the Individual in a position that requires him to hold an access
authorization. On March 27, 2024, the Individual was arrested and charged with seven counts of
Theft of Property. Exhibit (Ex.) 6 at 24;2 Ex. 7 at 41–43. The LSO subsequently issued a Letter of
Interrogatory (LOI) to the Individual, which sought additional information related to the charges.
Ex. 9. The Individual responded to the LOI in May 2024 and asserted that he had “seen no proof”
of the alleged offenses. Id. at 66. The LSO issued the Individual a second LOI, which he completed
in August 2024. Ex. 8. In that LOI response, the Individual represented that the “district attorney
[was] dismissing and dropping all charges against [him].” Id. at 61–63.
Due to the unresolved security concerns related to the Individual’s arrest that were not resolved by
his responses in the May and August 2024 LOI responses, the LSO informed the Individual, in a
Notification Letter, that it possessed reliable information that created substantial doubt regarding
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.
2 The exhibits submitted by the DOE were Bates numbered in the upper right corner of each page. This decision will
refer to the Bates numbering when citing to exhibits submitted by the DOE.
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his eligibility to hold a security clearance. In a Summary of Security Concerns (SSC) attached to
the Notification Letter, the LSO explained that the derogatory information raised security concerns
under Guideline J (Criminal Conduct) of the Adjudicative Guidelines. Ex. 1.
In October 2024, the Individual requested an administrative hearing, and the LSO forwarded the
Individual’s request to the Office of Hearings and Appeals (OHA). The Director of OHA appointed
me as 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 five witnesses called by the Individual, including
the Individual, three co-workers, and his wife. See Transcript of Hearing, Case No. PSH-25-0022
(Tr.). The Individual submitted 23 exhibits, marked as Exhibits A through W. Counsel for the DOE
submitted ten exhibits, marked as Exhibits 1 through 10, and did not present any witnesses.
II. The Summary of 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 under
Guideline J of the Adjudicative Guidelines. Ex. 1. Guideline J provides that “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. Conditions that could raise a security concern under this guideline
include “evidence (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.” Id. at ¶ 31(b). The LSO alleged that the Individual was charged with
seven counts of Theft of Property (Shoplifting) less than $1,000 in March 2024. Ex. 1 at 5. The
LSO further alleged that the charges were based on seven separate occasions in which he failed to
scan and pay for $772.32 worth of merchandise, and detailed the specific items, prices, and dates
on which the alleged shoplifting occurred. Id. Based on this allegation, I find the LSO’s security
concerns under Guideline J are justified.
III. Regulatory Standards
A DOE administrative review proceeding under Part 710 requires me, as the Administrative Judge,
to issue a decision that reflects my comprehensive, common-sense judgment, made after
consideration of all 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
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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. Findings of Fact and Hearing Testimony
The record includes a March 2024 report from the local police department (“Police Report”),
which indicates that the Individual was “seen on store surveillance taking and not paying for”
various specified grocery items totaling $772.32 on seven separate occasions between January 26,
2024, and March 17, 2024. Ex. 7 at 55–56. The local police department subsequently issued
warrants for the Individual’s arrest, and on March 27, 2024, the Individual turned himself in to the
courthouse, was arrested, and was charged with seven counts of Theft of Property. Ex. 6 at 24; Ex.
7 at 41–43, 56. In the August 2024 LOI response, the Individual represented that he had not seen
any video evidence of these alleged offenses, even though he had asked to view them, and stated
that his lawyer and the district attorney indicated that his conduct “was an honest mistake . . .[,]
human error[,] and computer error.” Ex. 8 at 61.
At the hearing, the Individual and his wife testified that they shopped at the grocery store on March
22, 2024, and as the Individual was loading the groceries into the vehicle, two police officers
approached and asked him to accompany them back into the store. Tr. at 47, 120. One of the police
officers checked the Individual’s receipt on that day against what he had loaded into the vehicle,
and everything was paid for. Id. at 120, 122. The Individual testified that when taken back into the
store, he offered the security guards there that he would pay for any of the items allegedly
previously taken without paying, if they could show him proof that he did not pay, but they refused
to show him any video. Id. at 120–21. They did show him a picture from a video and asked him to
identify himself. Id. at 121. After that, they asked him to sign a statement that he would not
patronize any of their stores again. Id. He signed that statement and avowed at the hearing that he
has never returned to any branch of that grocery store again, although his wife has returned to
purchase sale items. Id. at 91.
Also at the hearing, the Individual and his wife stated that they used the self-checkout at the store
because there were only two cashiers, and it was always very crowded at the time they shopped.
Tr. at 80, 93. The Individual’s wife testified,
It’s kind of really chaotic. There’s just a lot of people everywhere you look, you
have to watch where you’re going, there’s so many people. It can be crazy. And it’s
not like a huge [store], so there’s a lot of people in, like, this little area all trying to
checkout at the same time. And they don’t give you hardly any space on these self
checkouts. . . . It’s very chaotic.
Id. at 83–84. The Individual repeated that it can be hectic at the store stating, “it can be chaotic,
crazy, busy.” Id. at 93. They both detailed that their now ten-year-old son had been helping the
Individual with the scanning of the items, while the Individual’s wife watched their now one-
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year-old and two-year-old sons. Id. at 79, 113–15. The wife asserted that by the time they finished
shopping but before paying, the older of the two babies was very fussy and ready to leave, so he
needed attention. Id. at 80. The Individual and his wife speculated that perhaps in the rush to
finish checking out and allowing their son to help, they may have missed some items. Id. at 79,
113–15. The Individual testified that he did not check the receipts for accuracy and did not
calculate how much he should be paying for the groceries that he was purchasing. Id. at 93. The
Individual and his wife both stated that he does not shoplift and speculated that perhaps in the
confusion of the self-checkout, the son neglected to scan an item, and the Individual did not
notice. Id. at 47, 51, 79, 91, 95. Further, the Individual’s wife claimed that shoplifting would be
inconsistent with their religious values. Id. at 69. The Individual testified that, although they still
use self-checkout where they shop, he is much more vigilant and careful regarding supervising
his son. Id. at 96.
The Individual contacted an attorney after he was stopped by the police on March 22, 2024, and
signed the no trespass statement at the store. Tr. at 122; Ex. 7 at 59. The lawyer informed the
Individual that there was an outstanding warrant out for his arrest, so he turned himself in on
March 27, 2024. Ex. 6 at 24; Ex. 7 at 41–43, 56, 58, 59; Tr. at 122, 124. He was charged with
seven counts of shoplifting over a period of two months. Ex. 7 at 45–52, 55–56. The total amount
he was charged with shoplifting was $772.32. Id. at 56. The Individual presented evidence from
the court that he was placed in monthly pre-trial supervision on March 28, 2024. Ex. F at 16.
Further, that evidence shows that he met all the requirements of the pre-trial supervision,
including that he not reoffend, report in person five times, call every Monday, and pass all drug
screens. Id.
The Individual stated that the charges against him were dropped, and he eventually had them
expunged. Tr. at 98; see also Ex. D (expungement orders); Ex. F (stating that all charges were
dismissed on August 7, 2024); Ex. G (letter from the Individual’s attorney for the shoplifting
charges, stating that the charges were dismissed and an expungement entered); Ex. Q (certified
copies of the expungement orders). The Individual testified that he completed community service,
made restitution to the store, and paid court costs, and that is supported by the exhibits he provided.
Tr. at 92, 99, 105; Ex. E (showing the completed community service hours); Ex. G (letter from the
Individual’s attorney indicating the community service was a condition of dismissal). He claimed
that he was told the community service was to offset some of the court costs. Tr. at 128. The
Individual asserted that, although he asked for it, he never saw any video evidence of him not
scanning an item. Id. He claimed that the day he was stopped by the police and asked to return to
the store, he offered to pay for the missed items if the store would show him the video, and they
refused. Id. at 113, 121. The Individual indicated that the store personnel seemed more interested
in having him sign a no trespass statement. Id. at 121.
The Individual testified that,
And, you know, I’ve never been in trouble in my life. You know, speeding ticket,
I think I’ve had two in my life. Other than that, you know, never been in trouble
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with the law. It’s opened my eyes. I mean, I will say that. More cautious. And I just
want to set, you know, a good example for my boys, you know. That’s it, you know.
And sorry, I just – I get emotional sometimes.
Tr. at 108. This information is supported by his background investigation and his May 6, 2024,
LOI, where he stated that he had a speeding ticket. Ex. 9 at 68; Ex. 10 at 89, 165 (OPM report
showing no record prior to September 16, 2021).
The Individual declared that he is now more vigilant when he uses self-checkout, which he tries to
avoid. Tr. at 96, 125–26. “[W]e are definitely more careful now. And I – there’s a lot of times that
I will – we will avoid self checkout, but there’s some instance that, it’s just easier to go through
self checkout instead of standing in line with kids.” Id. at 96. He asserted that getting arrested was
a “big eye-opener for me. [I’ve learned] not to be so relaxed.” Id. at 125. He continued that being
charged with a crime was a shock to him, and he’s learned to be more vigilant and more aware of
the possibility of not scanning something than he was before. Id. at 126.
The Individual’s co-worker and friend testified that he has known the Individual four years. Tr. at
11. He stated that they see each other daily, and the Individual is always motivated to “do the right
thing the first time.” Id. at 12. He claimed that the Individual’s reputation at work is very good,
and he is known for being honest. Id. at 13. He testified that,
Everybody on our site is watched. You’re watched daily. We have [the LSO] that
watches us, DOE that watches us, work colleagues that watch us, management that
watch us. We are our brother’s keeper, and that goes a long way. So, eyes are on us
all the time. [The Individual] and myself, anybody that’s on site doing work,
managing the work, setting our precautions, you know, so there’s always eyes on
you.
Id. at 12–13. The co-worker and friend continued that he did not know anyone who questioned the
Individual’s integrity. Id. at 13. The co-worker and friend asserted that the Individual called him
from court during his first hearing and stated that the store and district attorney offered to drop the
shoplifting charges if he pled guilty to a criminal trespass charge. Id. at 23. The co-worker and
friend advised against doing that because he was not guilty of that charge. Id. at 24. He claimed
that within four minutes the Individual called him back to inform him that all the charges had been
dropped. Id. at 25.
The Individual’s supervisor and a second co-worker also testified to the Individual’s integrity and
honesty. Tr. at 30, 36. They reiterated that the Individual always follows procedures. Id. at 30–31,
36. The supervisor concluded that he has never known anyone to say anything negative about the
Individual. Id. at 32. The second co-worker, in addition to testifying, provided a letter in which he
stated that, at work the Individual “has consistently demonstrated reliability, integrity, and a strong
work ethic.” Ex. L at 29. He continued, “I have complete trust in [the Individual] . . . . He has
consistently shown himself to be a dependable, honest, and compassionate individual.” Id.
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V. Analysis
A. Guideline J
The Adjudicative Guidelines set forth four factors that may mitigate security concerns under
Guideline J:
(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;
(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 shown successful rehabilitation under the elements of mitigating factor ¶ 32(d).
Although it has only been a year since his alleged shoplifting charge, all charges were dropped and
expunged and he has made restitution to the store and complied with all terms of the court both
pre- and post-trial, including following the pre-trial supervision requirements, completing
community service, and paying the court costs. Additionally, the Individual has a good
employment history, as shown by his co-workers’ and supervisor’s testimony. He has no past
criminal history as evidenced by his 2021 background investigation. In addition, the Individual
immediately turned himself in upon learning there was a warrant out for his arrest. Finally, I
believe the Individual’s contention that he has every intention to never shoplift again. His
testimony shows that he has learned his lesson.
I conclude that the Individual has mitigated the Guideline J concerns. Adjudicative Guidelines at
¶ 32 (d).
VI. Conclusion
For the reasons set forth above, I conclude that the LSO properly invoked Guideline 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
presented at the hearing, I find that the Individual has brought forth sufficient evidence to resolve
the security concerns set forth in the Notification Letter. Accordingly, I find the Individual has
demonstrated that restoring his security clearance would not endanger the common defense and
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would be clearly consistent with the national interest. Therefore, I find that the Individual’s access
authorization should 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