PSH-25-0056

*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 2, 2025 ) Case No.: PSH-25-0056
)
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Issued: May 8, 2025
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Administrative Judge Decision
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Phillip Harmonick, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (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 or Eligibility to Hold a Sensitive Position.”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, who is employed by a DOE contractor, was first granted access authorization in
connection with his employment in 2020. Hearing Transcript, OHA Case No. PSH-25-0056 (Tr.)
at 48. On January 3, 2023, the local security office (LSO) received a personnel security information
report (PSIR) indicating that the Individual had been arrested and charged with Driving While
Intoxicated (DWI) and Reckless Driving. Exhibit (Ex.) 12; see also Ex. 11 (follow-up PSIR
received by the LSO on January 4, 2023, containing a booking sheet and statement by the arresting
officer).2 In response to letters of interrogatory from the LSO in March 2023 (First LOI) and
September 2024 (Second LOI), the Individual indicated that he entered into a pre-trial deferment
program related to the DWI and Reckless Driving charges pursuant to which he was placed on a
fifteen-month term of probation from March 2023 to June 2024. Ex. 13 at 71; Ex. 14 at 84.
On July 29, 2024, the LSO received a PSIR indicating that the Individual had been arrested and
charged with Assault Causing Bodily Injury, Terroristic Threats, and Interfering with Emergency
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 DOE were compiled in a single PDF exhibit notebook. This Decision will cite to pages
within the exhibit notebook in the order in which they appear regardless of their internal pagination.
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Request for Assistance in connection with alleged acts of domestic violence by the Individual
against his then girlfriend, now fiancée (Fiancée). Ex. 9; see also Ex. 8 (follow-up PSIR received
by the LSO on July 30, 2024, containing a booking sheet and statement by the arresting officer);
Tr. at 48 (testifying at the hearing that he and his Fiancée became engaged to be married in January
2025). A one-month emergency order of protection was issued against the Individual shortly after
his arrest ordering him to refrain from communicating with his Fiancée, going to their shared
residence, or going to her place of work. Ex. 15.
The LSO issued the Individual a Notification Letter advising him that it possessed reliable
information that created substantial doubt regarding his eligibility for access authorization. Ex. 1
at 7‒9. In a Summary of Security Concerns (SSC) attached to the letter, the LSO explained that
the derogatory information raised security concerns under Guideline J of the Adjudicative
Guidelines. Id. at 6.
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 conducted an administrative hearing. The LSO
submitted seventeen exhibits (Ex. 1–17). The Individual submitted one exhibit (Ex. A). The
Individual testified on his own behalf and offered the testimony of his Fiancée. Tr. at 3, 10, 30.
The LSO did not call any witnesses to testify.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline J (Criminal Conduct) of the Adjudicative Guidelines as the basis for its
substantial doubt regarding the Individual’s eligibility for access authorization. Ex. 1 at 6.
“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 SSC cited the Individual having been arrested
and charged with DWI and Reckless Driving in December 2022, arrested and charged with Assault
Causing Bodily Injury, Terroristic Threats, and Interfering with Emergency Request for Assistance
in July 2024, and being subject to an emergency order of protection related to alleged domestic
violence. Ex. 1 at 6. The LSO’s citation to the Individual having been arrested and charged with
criminal conduct justifies its 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 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
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
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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).
An 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). An individual is afforded a
full opportunity to present evidence supporting his or her eligibility for an access authorization.
The Part 710 regulations are drafted so as 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
On December 30, 2022, the Individual attended a wedding where he consumed alcohol. Ex. 10 at
52; Ex. 13 at 70. When the Individual attempted to drive home from the wedding, a law
enforcement officer observed the Individual driving erratically and failing to travel in a single lane.
Ex. 11 at 58; but see Ex. 13 at 70 (Individual claiming in response to the First LOI that he only
briefly swerved when he was distracted by his Fiancée). The law enforcement officer pulled the
Individual over and, upon approaching the Individual’s vehicle, perceived that the Individual
“smelled strongly of alcohol[].” Ex. 11 at 58. The Individual refused to complete a field sobriety
test and was subsequently arrested and charged with DWI and Reckless Driving. Id.
In March 2023, the Individual entered to a pre-trial deferment agreement pursuant to which the
DWI and Reckless Driving charges would be dismissed following the Individual’s completion of
a fifteen-month term of probation, a drug and alcohol evaluation and any recommended treatment,
and a victim impact panel, as well as paying fees and completing forty hours of community service.
Ex. 17 at 130 (reflecting information obtained by DOE from the FBI showing that the Individual
entered into pre-trial diversion); Ex. 13 at 71 (summarizing the terms of the agreement in response
to the First LOI). The Individual complied with all of the terms of the agreement and, following
his completion of the fifteen-month term of probation in June 2024, the charges against the
Individual were dismissed. Ex. 13 at 71. The Individual’s access authorization had been suspended
in connection with the LSO’s adjudication of the security concerns presented by his conduct, and
it had been restored following an administrative hearing before an OHA administrative judge. Tr.
at 36; Personnel Security Hearing, OHA Case No. PSH-23-0113 (2023).3 The Individual asserts
he has not consumed alcohol since his arrest for DWI. Tr. at 35; see also id. at 25 (testimony of
the Individual’s Fiancée that she has not seen him consume alcohol since the December 2022
arrest).
From July 24, 2024, to July 25, 2024, law enforcement officers were summoned to the Individual’s
home in response to numerous calls related to domestic disputes between the Individual and his
Fiancée. Ex. 8 at 38; Tr. at 26. The disputes between the Individual and his Fiancée began on July
24, 2024, after he observed her messaging another man on her phone and he snatched the phone
from her in order to see the messages. Ex. 7 at 31; Ex. 14 at 82; Tr. at 12, 50; see also Tr. at 51
(Individual’s testimony that the dispute escalated because he was “upset” and “wanted to get to
3 Decisions issued by OHA are available on the OHA website located at http://www.energy.gov/OHA.
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the bottom of it, to know what was actually going on”). The Individual left the residence after his
Fiancée threatened to call the police, which the Fiancée’s teenage son ultimately did when he heard
the Individual and his Fiancée yelling. Ex. 8 at 38; Ex. 14 at 82; Tr. at 12; see also Tr. at 26
(testimony of the Fiancée that she threatened to call the police because “things were so heated”
and she hoped “the threat would get us to just separate”).
When the Individual returned to the home to gather belongings, the dispute between him and his
Fiancée resumed, the Individual left the home again, and another call was made to law
enforcement. Ex. 8 at 38; Ex. 14 at 82; Tr. at 12. The Individual returned to the home a second
time on July 25, 2024, again to gather belongings, and the dispute resumed once again. Ex. 8 at
38; Ex. 14 at 82. During this dispute, another call was made to the police by the Fiancée’s son. Ex.
8 at 38.
When a law enforcement officer arrived at the home, he personally heard the Individual “raising
his voice at the [Fiancée].” Id. The Individual’s Fiancée alleged to the law enforcement officer that
the Individual had threatened to hurt her while brandishing his closed fist and prevented her from
calling 911 during the dispute. Id.; but see Tr. at 27 (denying at the hearing that she made this
statement). The law enforcement officer arrested the Individual, who was charged with Assault
Causing Bodily Injury, Terroristic Threats, and Interfering with Emergency Request for
Assistance. Ex. 8 at 38; see also Tr. at 14 (testimony of the Individual’s Fiancée that the arrest was
the result of “a misunderstanding” and was partially motivated by the officers being “tired of the
cops being called”). The following day, a judge issued an order of emergency protection
prohibiting the Individual from, among other things, communicating with his Fiancée or coming
within five hundred feet of their residence or her place of employment for one month. Ex. 15.
In January 2025, the Individual pleaded guilty to two of the charges stemming from his July 2024
arrest4 and entered into a domestic violence early intervention program pursuant to which he
“accept[ed] responsibility for [his] behavior” and the prosecution of the Individual was deferred
until January 2026. Ex. A at 2; Tr. at 44. The agreement provided that the charges would be eligible
for dismissal in January 2026 provided that the Individual refrained from committing any criminal
conduct, abstained from illegal drugs and alcohol, submitted to drug and alcohol testing, completed
a domestic violence class, and paid applicable fees. Ex. A at 2‒3. As of the date of the hearing, the
Individual had completed three individual counseling sessions out of the ten required pursuant to
the early intervention program. Tr. at 38‒39. At the hearing, the Individual was only able to provide
minimal detail on what he had learned through counseling and explained that he was “only three
sessions into it.”5 Id. at 53.
4 The “Terroristic Threat” charge was waived by the prosecuting agency. Ex. A at 2, 5.
5 When asked for specific examples of what he had learned to mitigate the risk of potential recurrence of domestic
violence situations, the Individual responded as follows:
[T]he main thing that I take away from it thus far, Judge, is realizing, you know, when an issue occurs and
kind of the – the thinking patterns, I believe, is the term that they call it, like pattern thinking, thinking
patterns, how to recognize that and – and how to kind of stop that certain way of thinking.
Tr. at 53.
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Several months after the Individual’s July 2024 arrest, the Individual’s Fiancée moved into her
parents’ home due to medical issues and losing her job. Id. at 11, 17. The Individual and his Fiancée
reconciled during a conversation after the order of emergency protection expired, and in January
2025 they became engaged to be married. Id. at 48‒49; see also id. at 22 (testimony of the Fiancée
that the Individual’s behavior in connection with his July 2024 arrest was “completely out of
character for him”). In late January or early February of 2025, the Individual moved in with his
Fiancée in her parents’ home. Id. at 11. The Fiancée’s parents agreed to “help [them] through the
hearing to get back on [their] feet,” after which she and the Individual would try to obtain their
own residence and “go from there.” Id. at 18. As of the date of the hearing, the Individual and his
Fiancée were considering pursuing couples therapy, but did not have health insurance and could
not afford to pay for the counseling out of pocket. Id.
V. ANALYSIS
Guideline J
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;
(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.
Id. at ¶ 32.
Less than one year has passed since the Individual’s domestic violence-related arrest in July
2024 and he is currently serving probation in connection with the offense. Moreover, the
Individual’s July 2024 arrest came shortly after the adjudication of security concerns related
to his December 2022 DWI and his completion of probation in connection with that offense.
In light of the relative recency of the Individual’s domestic violence-related offense, and the
rapidity with which the Individual returned to problematic behavior following the resolution
of his December 2022 DWI, I find that insufficient time has passed for me to conclude that the
Individual’s criminal conduct does not cast doubt on his reliability, trustworthiness, and good
judgment. Moreover, the Individual’s description of both of his arrests indicated that they took
place under ordinary circumstances. Accordingly, I find the first mitigating condition
inapplicable. Id. at ¶ 32(a).
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The second mitigating condition is inapplicable to the facts of this case because the Individual
did not assert that he was pressured or coerced into committing either offense. Id. at ¶ 32(b).
There is no dispute that the Individual committed the 2022 DWI. In her hearing testimony, the
Individual’s Fiancée disputed the seriousness of the Individual’s conduct in connection with
his domestic violence-related arrest and the accuracy of some of the information in the arrest
report prepared by the arresting law enforcement officer. However, the arrest report was
prepared by the law enforcement officer contemporaneously with the officer’s observations of
the Individual’s conduct and the statements of the Individual’s Fiancée and her son. The
Individual’s Fiancée’s recollection of the events of July 2024 are likely less vivid after the
passage of approximately nine months than were the recollections of the law enforcement
officer when the officer prepared the arrest report, and the Individual’s Fiancée’s interpretation
of those events may have changed since they occurred in light of her engagement to the
Individual and the potential economic impact that the loss of the Individual’s security clearance
could have on their planned future together. Moreover, in entering into the domestic violence
early intervention program, the Individual “accept[ed] responsibility” for his behavior in
connection with the July 2024 arrest. In light of the details included in the arrest report, the
Individual’s plea agreement resulting in his participation in the domestic violence early
intervention program, and the fact that I do not wholly credit the Individual’s Fiancée’s
testimony, I find that there is some reliable evidence that the Individual committed the acts that
resulted in the domestic violence-related charges and that the third mitigating condition is
inapplicable. Id. at ¶ 32(c).
The Individual completed a lengthy probation and adjudication of his eligibility for access
authorization following his DWI charge, only to be arrested and charged with another offense
shortly thereafter. The Individual’s participation in the domestic violence early intervention
program is in its early stages; he has completed only three of the required counseling sessions,
cited the limited counseling he has participated in to explain his limited ability to describe the
benefits he has realized through counseling in his hearing testimony, and is still subject to
supervision by a probation officer for over seven more months. Moreover, the Individual has
not brought forward any evidence of job training or higher education, good employment
record, or constructive community involvement post-dating his July 2024 arrest. In light of the
Individual’s recent demonstration of poor judgment after exiting the supervised environment
of probation and the adjudication of his access authorization, I cannot conclude that he will not
once again exercise poor judgment when he is no longer under the scrutiny of the domestic
violence early intervention program, the adjudication of his eligibility for access authorization,
and the parents of his Fiancée with whom he currently resides. For the aforementioned reasons,
I find that the Individual has not established the applicability of the fourth mitigating condition.
Id. at ¶ 32(d).
Having concluded that none of the mitigating conditions are applicable to the facts of this case,
I find that the Individual has not resolved the security concerns raised by the LSO under
Guideline J.
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VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
DOE to raise security concerns under Guideline J of the Adjudicative Guidelines. After
considering all the relevant information, 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 not brought forth sufficient evidence to resolve the security concerns
asserted by the LSO. Accordingly, I have determined 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.
Phillip Harmonick
Administrative Judge
Office of Hearings and Appeals