DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 08-04595 SSN: ) ) Applicant for Security Clearance ) Appearances For Government: Francisco Mendez, Esquire, Department Counsel For Applicant: William F. Savarino, Esquire Decision O’BRIEN, Rita C., Administrative Judge: Based upon a review of the case file, pleadings, exhibits, and testimony, I conclude that Applicant has not mitigated the security concerns raised under the guidelines for drug involvement and personal conduct. Accordingly, his request for a security clearance is denied. Statement of the Case Applicant submitted a security clearance application, Standard Form (SF)-86, on November 15, 2001. After reviewing the results of the ensuing background investigation, adjudicators for the Defense Office of Hearings and Appeals (DOHA) were unable to make a preliminary affirmative finding1 that it is clearly consistent with the national interest to grant Applicant’s request. 1 Required by Executive Order 10865, as amended, and DoD Directive 5220.6 (Directive), as amended. 1 On November 7, 2008, DOHA issued to Applicant a Statement of Reasons (SOR), which specified the basis for its decision – security concerns addressed in the Directive under Guidelines H (Drug Involvement) and E (Personal Conduct) of the Revised Adjudicative Guidelines (AG).2 Applicant signed his notarized Answer on December 23, 2008, in which he admitted to all allegations under Guideline H except allegation 1.f. Under Guideline E, he admitted to SOR ¶ 2.a, which cross-references allegations 1.a. through 1.g. He denied allegations 2.b. through 2.d., which allege deliberate falsification of information he provided on his security clearance applications. Applicant requested a hearing before an administrative judge. Department Counsel was prepared to proceed on January 16, 2009, and the case was assigned to me on February 25, 2009. DOHA issued a Notice of Hearing on February 27, 2009. I convened the hearing as scheduled on March 26, 2009. During the hearing, the government offered six exhibits, marked as Government Exhibits (GE) 1 through 6, which were admitted without objection. Applicant testified on his own behalf and presented the testimony of four witnesses. He also offered one exhibit, marked as Applicant Exhibit A, which was admitted without objection. I held the record open to allow Applicant to submit additional documentation. He timely submitted one document, which was forwarded by Department Counsel without objection. I admitted the document as AE B. DOHA received the transcript on March 3, 2009. Procedural Matters Subparagraph 1.c. of the SOR alleges that “You used cocaine from approximately 1995 to 2002.” At the hearing, Applicant testified that he used cocaine starting in 1986, as he reported in his security clearance application of May 2006. In order that the SOR conform to the record, I amended SOR allegation 1.c. to read, “You used cocaine from approximately 1986 to 2002.” Findings of Fact Applicant’s admissions in response to the SOR are admitted as fact. After a thorough review of the pleadings, Applicant’s response to the Statement of Reasons, and the record evidence, I make the following additional findings of fact. 2 Adjudication of this case is controlled by the Revised Adjudicative Guidelines, approved by the President on December 29, 2005,which were implemented by the Department of Defense on September 1, 2006. The Revised Adjudicative Guidelines supersede the guidelines listed in Enclosure 2 to the Directive, and they apply to all adjudications or trustworthiness determinations in which an SOR was issued on or after September 1, 2006. 2 Applicant, 51 years old, earned a certificate in Data Communications Technology from a community college in 1993 (Tr. 87-88). He married for the first time in 1980. He and his wife separated in approximately 1992, and divorced in 2002 (Tr. 153-154). He has two children with his first wife, a 21-year-old son and a 13-year-old daughter. He married his second wife in 2004 and has no children from his second marriage (GE 1). Applicant has been employed as an engineer since 1978, and his current title is Senior Integration Engineer and Project Manager. He worked for a federal contractor from 1978 to 2001, and another federal contractor from 2001 to the present. Both companies had policies in effect that prohibited illegal drug use during the years that Applicant was an employee (GE 1; Tr. 33; 50; 89; 149). Applicant began using marijuana sometime between the age of 10 years (Tr. 73) and his early teens (GE 5; Tr. 90), using it on weekends with friends. He experimented with amphetamines, and barbiturates (Tr. 91), as well as LSD and quaaludes (Tr. 73). He also purchased drugs during this time period (Tr. 91). When Applicant began working full-time, in his 20s, his use of marijuana decreased to about three or four times per year (Tr. 93). However, in his Interrogatory response, he noted that he “may have used marijuana in college on a weekly basis” and also noted that he purchased it about two to four times per year (GE 6). Applicant attended college between 1983 and 1993, when he was 25 to 35 years old (GE 1). Applicant also used hashish a “couple of times a year” from 1971 to 1995 (Tr. 94). Between 1995 and 2002, Applicant testified that he used marijuana infrequently, when he was with friends or playing sports, approximately one to two weekends per month. However, after he purchased his house in 2000, it became less frequent (Tr. 165). As a young boy, Applicant went on backpacking trips on the Presidents’ Day holiday weekend in February (Tr. 150). Applicant and several friends continued this annual tradition for decades. Applicant last attended the winter camping trip in February 2002. During these three-day camping trips, he and his friends used marijuana (Tr. 92). Applicant used psychedelic mushrooms three times, between 2000 and 2001 or 2002,3 during his winter camping trips. He testified that he first tried them when someone brought the mushrooms on the winter camping trip in 2000 (Tr. 97-98). During a security interview on August 17, 2007, Applicant stated he had psychedelic mushrooms in his home freezer, that they had been there for approximately six years, and that they were left over from his last camping trip in 2002 (GE 5). However, at the hearing, Applicant stated that the mushrooms belonged to his wife, who had obtained them from a friend (Tr. 105). He stated both in his August 2007 interview and at the hearing that he had asked his wife for several years to dispose of them, but she did not do so (AE A; Tr. 105- 106). Applicant disposed of the mushrooms after his August 2007 interview. His wife 3 Applicant first testified that his last use of psychedelic mushrooms was in 2002; but later said it was in 2001 (Tr. 97-99). 3 submitted a notarized statement that she has used illegal drugs recreationally on rare occasions, but stopped in 2005 (AE A). Between 19864 and 2002, Applicant used cocaine. The drug was available on the winter camping trips, and Applicant was not certain, but believes that he likely used it infrequently on those trips. However, in approximately 1995, he moved to an apartment where he met a man who used cocaine. Applicant used it “once every couple of months, maybe” and purchased it twice from the man (Tr. 96). He later testified that his cocaine use between 1995 and 2002 was, “I would say on average, per year, once every four months.” (Tr. 163). Although a security investigator reported in 2007 that Applicant used cocaine on “one occasion per weekend” from 1995 to 2002, Applicant called that statement “absolutely incorrect” at the hearing (Tr. 160), and noted that he had corrected this inaccuracy in his Clarifications document (GE 5). He also used cocaine during the winter camping trip of February 2002 (Tr. 97). For the past 15 years, Applicant and his family have joined several other families each year for camping trips in the Spring and Fall. Some of Applicant’s friends from the winter camping trips also attend the family camping trips (Tr. 151). Some drug use occurs at these events. Appellant estimates that, each year, he used marijuana on one of the annual family trips, after the children were in bed (Tr. 99-100; 152). He has not used illegal drugs in front of his children or told them about his own drug use. He has warned them not to use illegal drugs because he wants “to make sure that my children never did, or never would.” (Tr. 100-101). He testified that he is not exposed to illegal drugs on these trips anymore because “Everybody is well aware, I have made it very clear that I'm not interested, and I will not do drugs again, and I didn't want to be around it, I don't want to see it, I don't want to smell it.” (Tr. 103). As of the date of the hearing, he had last attended the family camping trip in Spring 2008, and intended to go to the Spring 2009 trip. Applicant has no intent to use illegal drugs in the future. On his last winter camping trip in February 2002, after he had used marijuana and cocaine (Tr. 149), he decided to walk on a log in the campfire. When he jumped off, he fractured his ankle, and later developed a severe infection in his foot. He wore a large cast, and had to self- administer a strong antibiotic into a line that fed into his heart. He decided at that time that he would no longer use illegal drugs (Tr. 102-103). Applicant's witness, a friend who attends the annual winter trip, testified that he saw Applicant use marijuana on the 2002 trip. He knows that Applicant has not attended any camping trips with the group since 2002. Applicant has told the witness that he will not use illegal drugs again, and has not used drugs since that time in the presence of the witness (Tr. 59-61). 4 Applicant gave several dates for his first use of cocaine (GE 4; GE 5). It was determined at the hearing that the correct date is 1986 (Tr. 155). 4 As to his friends who currently use drugs, Applicant testified, “And the ones who I do associate with, now, know very well – they all know it, but the ones who I associated with now are very well aware, as well as the rest of them, that I do not drugs [sic], I will not do drugs, and I cannot have it around me, or in front of me.” (Tr. 152). Applicant met with a chemical dependency counselor for an evaluation in relation to his security clearance (AE B). They met three times between January 29 and March 16, 2009. During their second meeting, Applicant provided a urine sample for a toxicology screen; he was not forewarned of the test (AE B; Tr. 73). The urinalysis produced negative results for the presence of alcohol or any illegal substances (Tr. 69). Applicant told the counselor that he first used marijuana at 10 to 12 years old, and that he also experimented with amphetamines, LSD and quaaludes. His use decreased after high school, so that he only used illegal drugs on his annual camping trip, and only marijuana (Tr. 78). Applicant told her that he used psychedelic mushrooms three times during the winter camping trips, two of them in 2002 (Tr. 77; 80-81).5 He also reported that he used cocaine several times between January 2001 and February 2002 (Tr. 75; 79-80). He did not inform her that he had used cocaine starting in 1995. Based on the information Applicant provided, the counselor found that Applicant did not meet the criteria in the Diagnostic and Statistical Manual (DSM) for substance abuse or dependence (Tr. 71). Applicant applied for his first security clearance in November 2001 (GE 1). He is uncertain of the exact date that he received the clearance (Tr. 114). However, he testified that he had the clearance at the time he used marijuana and cocaine during his camping trip on February 28, 2002 (Tr. 148-149; 174). Q: But by the time you used drugs on this camping trip, in February of 2002, you knew you had a security clearance? A: Yes. And there was -- that was the only time that I have done illicit or illegal drugs while possessing a security clearance. Q: Now, -- A: :And I know that that was wrong, I know it was stupid, I knew at the time, and that is the reason -- one of the reasons why that was it. (Tr. 148). Applicant testified that he was working at a DoD site that required a security clearance at the time he used marijuana and cocaine on February 28, 2002. Although he did not remember the exact date he began working at the site, he knows that he had a large 5 It is unclear from the counselor’s testimony whether Applicant reported to her that he used psychedelic mushrooms in 2000. 5 cast on his foot that made entering and exiting the site very difficult (Tr. 102; 182). The cast was part of the treatment for the injury he received on February 28, 2002. I find that Applicant used illegal drugs one time, February 28, 2002, after he received a security clearance. Applicant completed security clearance applications in 2001, 2006, and 2007 (GE 1, 2, 4 and 5). In his 2001 application, when he was applying for a secret security clearance, he answered “No” to the question that asked if he had used illegal drugs during the previous seven years (GE 1).6 When asked why he lied on the application, Applicant testified, A: …And when I filled out the form I absolutely did have a problem with that question. And I actually asked others around me, you know, what I should do. And, basically, the consensus was go ahead and say no, they don’t check it anyway, on a secret. So, you know, I answered no. And that was, obviously, as it turns out now that was a very stupid thing to do. Q: So you thought you could get away with it? A: Yes, I guess, yes. (Tr. 112-113). Applicant he did not want the government to know about his drug use because he was concerned about not succeeding at his new job with the federal contractor. He received a secret clearance after submitting the 2001 application (Tr. 115). In 2005, Applicant's company planned to submit him for a top secret security clearance and access to sensitive compartmented information (SCI). Applicant decided to disclose his 2001 falsification to his facility security officer (GE 3). Applicant was aware that the higher level clearance would require a polygraph examination, which would reveal his illegal drug use (Tr. 174). However, he testified that his disclosure, … was on my own accord. I'm the one who volunteered to be processed for an [government agency] TSSCI. And I was well aware that it would require a polygraph. And at that point is when I decided I needed to come clean, with myself, with the Government, and own up to what I had done wrong. (Tr. 174). Applicant disclosed his falsification about illegal drug use in a letter in which he stated, “I was told not to include the information and that DSS does not check or polygraph for drugs at the secret level.” (GE 3). On his two subsequent applications, in 2006 and 2007, 6 This falsification was not alleged in the SOR. 6 he listed his illegal drug use. However, he did not disclose on those two applications that he had used illegal drugs while holding a security clearance (GE 4; 5). He testified that he did not understand the question. He thought it concerned only those who used illegal drugs while holding positions as law enforcement officers, prosecutors or courtroom officials. He realizes now that he should have answered “Yes.” He did disclose in the 2006 and 2007 applications that he used illegal drugs until February 28, 2002, when he held a security clearance (GE 4; Tr. 178-179). When Applicant worked at a defense contracting company between 1978 and 2001, he sometimes kept surveillance equipment that was slated for disposal. He obtained permission to keep the equipment (GE 5). Over a period of five to seven years, he sold the materials at a flea market, earning about $1,000 per year. When the company closed its doors in 2001, he asked for and received permission to keep additional material. He sold some items and kept others. Applicant's witness, who worked with Applicant at this company, testified that it was acceptable for employees to take discarded company equipment (Tr. 43). In his current employment, Applicant also worked on projects where excess materials were discarded. At the end of a project in 2006, Applicant obtained such materials, including ladders, drills, and drywall. He gave some items to his son, who sold a portion of the materials for a profit of approximately $4,000 (GE 5). One of Applicant's witnesses, who worked for this same employer for 18 years, testified that the company’s policy is to dispose of materials remaining after an off-site project is completed, because it is more cost-efficient than returning the materials to the company. Consequently, project managers are directed to dispose of the material. The witness believed the company at that point has divested itself of any further interests in the property. He noted that this is the usual industry practice. His understanding is that it is acceptable if an employee decides keep the material. He was not aware of any instances in which the company had taken action against an employee who had taken such material (Tr. 31-32; 37-38). Policies Each security clearance decision must be a fair, impartial, and common-sense determination based on examination of all available relevant and material information, and consideration of the pertinent criteria and adjudication policy in the Revised Adjudicative Guidelines (AG).7 Decisions must also reflect consideration of the “whole person” factors listed in ¶ 2(a) of the Guidelines. The presence or absence of a disqualifying or mitigating condition is not determinative of a conclusion for or against an Applicant. However, specific applicable guidelines should be followed whenever a case can be measured against them as they 7 Directive. 6.3. 7 represent policy guidance governing the grant or denial of access to classified information. In this case, the pleadings and the information presented by the parties require consideration of the security concerns and adjudicative factors addressed under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). A security clearance decision is intended only to resolve the questions of whether it is clearly consistent with the national interest8 for an Applicant to either receive or continue to have access to classified information. The government bears the initial burden of producing admissible information on which it based the preliminary decision to deny or revoke a security clearance for an Applicant. Additionally, the government must be able to prove controverted facts alleged in the SOR. If the government meets its burden, it then falls to the Applicant to refute, extenuate or mitigate the government’s case. Because no one has a “right” to a security clearance, an Applicant bears a heavy burden of persuasion.9 A person who has access to classified information enters into a fiduciary relationship with the government based on trust and confidence. Therefore, the government has a compelling interest in ensuring each Applicant possesses the requisite judgment, reliability and trustworthiness of one who will protect the national interests as his or his own. The “clearly consistent with the national interest” standard compels resolution of any reasonable doubt about an Applicant’s suitability for access in favor of the government.10 Analysis Guideline H, Drug Involvement AG ¶ 24 expresses the security concern pertaining to drug involvement: Use of an illegal drug or misuse of a prescription drug can raise questions about an individual's reliability and trustworthiness both because it may impair judgment and because it raises questions about a person's ability or willingness to comply with laws, rules, and regulations. Of the eight disqualifying conditions listed at AG ¶ 25, the following three apply: (a) any drug abuse; 8 See Department of the Navy v. Egan, 484 U.S. 518 (1988). 9 See Egan, 484 U.S. at 528, 531. 10 See Egan; Revised Adjudicative Guidelines, ¶ 2(b). 8 (c) illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; (g) any illegal drug use after being granted a security clearance. Applicant admits to illegally using numerous substances as a teenager including amphetamines, barbiturates, hashish, LSD, quaaludes and marijuana. As an adult, he used psychedelic mushrooms and cocaine, and most frequently, marijuana. He purchased marijuana and cocaine. Applicant also possessed psychedelic mushrooms, which were stored in his home with his knowledge for approximately five years. Applicant was granted his security clearance in 2001 or early 2002, and admits that he used illegal drugs in February 2002, while he held that clearance. AG ¶ 26 includes two relevant mitigating conditions: (a) the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual's current reliability, trustworthiness, or good judgment; (b) a demonstrated intent not to abuse any drugs in the future, such as: (1) disassociation from drug-using associates and contacts; (2) changing or avoiding the environment where drugs were used; (3) an appropriate period of abstinence; (4) a signed statement of intent with automatic revocation of clearance for any violation. ` Applicant’s last use of illegal drugs in February 2002, more than seven years ago, is not recent. However, Applicant's use extended over a period of approximately 30 years, until he was 43 years old. In addition, he used illegal drugs in 2002, after he had been granted a security clearance. The lack of recency does not outweigh the fact that he used illegal drugs while he was a mature adult, and while he held a clearance. His conduct casts serious doubt on his reliability and good judgment. AG ¶ 26(a) does not apply. Some mitigation is available under AG ¶ 26(b) because Applicant avoids the winter camping trips where he used drugs in the past, and he has abstained from illegal drugs for a significant period. However, other facts weigh against mitigation under AG ¶ 9 10 26(b). He maintains contact with some of the people with whom he used drugs. He knowingly allowed an illegal drug to remain in his home for approximately five years. Finally, he continues to attend the twice-yearly family camping trips where drugs are sometimes used and where he has used illegal drugs in the past. I find against Applicant on Guideline H. Guideline E, Personal Conduct AG ¶ 15 expresses the security concern about personal conduct: Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual's reliability, trustworthiness and ability to protect classified information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process. The Guideline E allegations implicate the following disqualifying conditions under AG ¶ 16: (a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities (d) credible adverse information that is not explicitly covered under any other guideline and may not be sufficient by itself for an adverse determination, but which, when combined with all available information supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the person may not properly safeguard protected information. This includes but is not limited to consideration of: (1) untrustworthy or unreliable behavior to include breach of client confidentiality, release of proprietary information, unauthorized release of sensitive corporate or other government protected information; (2) disruptive, violent, or other inappropriate behavior in the workplace; 11 (3) a pattern of dishonesty or rule violations; (4) evidence of significant misuse of Government or other employer's time or resources. The government alleges that Applicant deliberately falsified answers on his security clearance applications in 2006 and 2007. Each allegation relates to the same question: whether he had ever used illegal drugs while possessing a security clearance. He answered “No” to this question on his 2006 and 2007 applications. Application of AG ¶ 16(a) requires deliberate falsification. Here, Applicant did not intentionally hide relevant information from the government. He misunderstood the question, thinking that it asked whether he used a controlled substance while employed in three professions—law enforcement officer, prosecutor, or courtroom official. He answered “No” because he had never held any of those positions (Tr. 132-133). Applicant disclosed, in his answer to the immediately preceding question, that he used illegal drugs until February 28, 2002, which was after he had received a clearance. If he had intended to hide the fact that he used illegal drugs while holding a clearance, he would not have disclosed that date. Applicant did not intentionally conceal the fact that he used illegal drugs while holding a security clearance, and AG ¶ 16 (a) does not apply. AG ¶ 16(d)(4) is relevant to the allegation that Applicant wrongfully misappropriated materials belonging to his current and former employers. Applicant's witnesses credibly testified that it is common practice for companies to order local disposal of equipment and materials that remain after completion of off-site projects. The witnesses were unaware of any prohibition against employees or contractors taking such items. There is no evidence that Applicant violated a policy at either company by taking left-over materials that the companies had discarded. AG ¶ 16 (d)(4) does not apply as to Applicant's personal use of the discarded materials. However, this disqualifying condition is also relevant to Applicant's illegal drug use. Applicant used numerous illegal drugs over a period of approximately 30 years. Although he used some illegal drugs on a short-term experimental basis when he was a teenager, he used others, such as marijuana and cocaine, over a longer period. Applicant violated the law over a period of many years, even as an adult. He admits that used marijuana and cocaine in 2002, after he had a security clearance. AG ¶ 16(d)(3) applies as to Applicant's illegal drug use. As to Applicant's illegal drug use, the following mitigating condition is relevant: (c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is 12 unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment. Applicant's drug use cannot be mitigated under AG ¶ 17(c). Although a significant amount of time, approximately seven years, has passed since Applicant last used marijuana and cocaine, his conduct cannot be considered minor. Each decision to use a controlled substance was a decision to engage in an illegal act. He made that decision repeatedly over a period of three decades. The fact that he acted illegally beyond adolescence and well into his adult life, when he was a husband and father, demonstrate a persistent unwillingness to abide by rules and regulations that raises serious doubts about his trustworthiness and good judgment. AG ¶ 17(c) cannot be applied. Whole Person Analysis Under the whole person concept, an administrative judge must evaluate the Applicant’s security eligibility by considering the totality of the Applicant’s conduct and all the circumstances. An administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a): (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence. AG ¶ 2(c) requires that the ultimate determination of whether to grant a security clearance must be an overall common-sense judgment based upon careful consideration of the guidelines and the whole person concept. Under each guideline, I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. Applicant has refrained from using illegal drugs for the past seven years, a significant period of time. However, his willingness to engage in persistent illegal conduct by using controlled substances for more than 30 years cannot be ignored. His last use occurred when he was a mature adult of 43 years. Applicant engaged in other actions that raise questions as to his trustworthiness. He used illegal drugs even though it was against the policy at both of his employers. He intentionally falsified his 2001 security clearance application because he thought disclosure might jeopardize his job. Although this falsification is not alleged, and is not outcome-determinative, it does go to his credibility when assessing the whole person. Finally, his willingness to 13 use marijuana and cocaine after he received his security clearance raises serious doubts about his suitability for access to classified information. Overall, the record evidence fails to satisfy the doubts raised about Applicant’s suitability for a security clearance. For all these reasons, I conclude Applicant has not mitigated the security concerns arising from the cited adjudicative guidelines. Formal Findings Paragraph 1, Guideline H Against Applicant Subparagraph 1.a. Against Applicant Subparagraph 1.b. Against Applicant Subparagraph 1.c. Against Applicant Subparagraph 1.d. Against Applicant Subparagraph 1.e. Against Applicant Subparagraph 1.f. Against Applicant Subparagraph 1.g. Against Applicant Paragraph 2, Guideline E Against Applicant Subparagraph 2.a: Against Applicant Subparagraph 2.b: For Applicant Subparagraph 2.c: For Applicant Subparagraph 2.d: For Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the interests of national security to allow Applicant access to classified information. Applicant’s request for a security clearance is denied. _____________________________________ RITA C. O’BRIEN Administrative Judge