A DOE Security clearance hearing (administrative review proceeding under 10 CFR Part 710) is not a criminal matter where the state or US Government has the burden of proving the defendant guilty beyond a reasonable doubt. Instead, the standard in DOE AR proceedings under Part 710 places the burden on the individual because it is designed to protect national security interests. As Administrative Judge Ann S. Augustin said in PSH-14-0011:
"This is not an easy burden for the individual to sustain. 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), cert. denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance).
The individual must come forward at the hearing with evidence to convince the DOE that restoring his 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 so as 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."
Is that utmost latitude in the presentation of evidence the applicable standard today? Has that been walked back a bit in practice? That is another question for another blog post or a confidential consultation. Call 865-235-1787 to schedule your confidential consultation today or send us some dates, times, and your contact information (phone, non work email, and address) without any details about your case through our contact form. Again - do not send any confidential information about your case through our website.