PSH-13-0122

United States Department of Energy
Office of Hearings and Appeals
In the Matter of Personnel Security Hearing )
)
Filing Date: November 20, 2013 ) Case No.: PSH-13-0122
____________________________________)
Issued: February 21, 2014
______________________
Administrative Judge Decision
______________________
Shiwali G. Patel, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX (hereinafter referred to as “the
individual”) for access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled
“Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special
Nuclear Material.”1 For the reasons set forth below, I conclude that the DOE should not restore the
individual’s access authorization at this time.2
I. BACKGROUND
The individual is an employee of the Department of Energy and holds a suspended access
authorization. A Local Security Office (LSO) summoned the individual for a Personnel Security
Interview (PSI), with a personnel security specialist on June 28, 2012, in order to address issues
concerning his outstanding debt obligations and alleged misrepresentation of his delinquent accounts
and non-criminal civil court actions in his SF-86 (Questionnaire for National Security Positions) that
he submitted on January 30, 2012. Ex. 7. After the PSI, the LSO determined that there was
derogatory information that cast into doubt the individual’s eligibility for access authorization. The
LSO informed the individual of this determination in a letter that set forth the DOE’s security
concerns and the reasons for those concerns. Ex. 1. The Notification Letter also informed the
individual that he was entitled to a hearing before an Administrative Judge in order to resolve the
substantial doubt concerning his eligibility for an access authorization.
1 An access authorization is an administrative determination that an individual is eligible for access to classified matter or
special nuclear material. 10 C.F.R. § 710.5. Such authorization will be referred to in this Decision as access authorization
or a security clearance.
2 Decisions issued by the Office of Hearings and Appeals (OHA) are available on the OHA website located at
http://www.energy.gov/oha.
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The individual requested a hearing in this matter. The LSO forwarded this request to OHA, and the
OHA Director appointed me the Administrative Judge.3 The DOE introduced eight exhibits into the
record of this proceeding. The individual introduced 26 exhibits and presented only his testimony at
the hearing. Furthermore, after the hearing, the individual filed a post-hearing submission.
II. REGULATORY STANDARDS
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710 dictate
that in these proceedings, an Administrative Judge must undertake a careful review of all of the
relevant facts and circumstances, and make a “common-sense judgment . . . after consideration of all
relevant information.” 10 C.F.R. § 710.7(a). I must therefore consider all information, favorable and
unfavorable, that has a bearing on the question of whether restoring the individual’s security
clearance would compromise national security concerns. Specifically, the regulations compel me to
consider the nature, extent, and seriousness of the individual’s conduct; the circumstances
surrounding the conduct; the frequency and recency of the conduct; the age and maturity of the
individual at the time of the conduct; the absence or presence of rehabilitation or reformation and
other pertinent behavioral changes; the likelihood of continuation or recurrence of the conduct; and
any other relevant and material factors. 10 C.F.R. § 710.7(c).
A DOE administrative proceeding under 10 C.F.R. Part 710 is “for the purpose of affording the
individual an opportunity of supporting his eligibility for access authorization.”
10 C.F.R. § 710.21(b)(6). Once the DOE has made a showing of derogatory information raising
security concerns, the burden is on the individual to produce evidence sufficient 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
regulations further instruct me to resolve any doubts concerning the individual’s eligibility for access
authorization in favor of the national security. 10 C.F.R. § 710.7(a).
III. NOTIFICATION LETTER AND ASSOCIATED SECURITY CONCERNS
The Notification Letter cited information pertaining to subsections (l) 4 and (f)5 of the criteria for
eligibility for access to classified matter or special nuclear material set forth at 10 C.F.R. § 710.8. Ex.
1. Under criterion (l), the LSO relied on two credit reports of the individual dated February 10,
3 Effective October 1, 2013, the titles of attorneys in the Office of Hearings and Appeals (OHA) changed from Hearing
Officer to Administrative Judge. See 78 Fed. Reg. 52389 (Aug. 23, 2013). The title change was undertaken to bring
OHA Hearing Officers in line with the title used at other federal agencies for officials performing identical or similar
adjudicatory work. See Personnel Security Hearing, Case No. PSH-13-0114 at 1, n.1.
4 Criterion (l) defines as derogatory information when an individual has “[e]ngaged in any unusual conduct or is subject
to any circumstances which tend to show that the individual is not honest, reliable, or trustworthy; or which furnishes
reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress which may cause the
individual to act contrary to the best interests of the national security.” 10 C.F.R. § 708.8(l).
5 Criterion (f) defines as derogatory information when an individual has “[d]eliberately misrepresented, falsified, or
omitted significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive (or National
Security) Positions, a personnel qualifications statement, a personnel security interview, written or oral statements made
in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access
authorization, or proceedings conducted pursuant to § 710.20 through § 710.31.”
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2012, and December 20, 2012, showing several delinquent accounts. The LSO cited the following
from the credit reports: (1) the individual’s 20 outstanding debts, 13 of which were in collection and
one that resulted in a judgment against him; (2) the individual’s failure to pay his federal income
taxes for 2008; and (3) the lien on his property that the individual reported was due to his failure to
pay taxes. Ex. 1. Under criterion (f), the LSO cited the individual’s deliberate failure to report on
his security form16 of his outstanding debts and that he was a defendant in several non-criminal
court cases regarding his delinquent accounts. Id. Moreover, the LSO cited the individual’s
statement during his May 22, 2012, Office of Personnel Management (OPM) background
investigation that his responses on his SF-86 were correct, even though he failed to provide complete
and accurate responses on this security form. Id.
The above information adequately justifies the DOE’s invocation of criteria (l) and (f), and raises
significant security concerns. The failure or inability to live within one's means, satisfy debts, and
meet financial obligations, may indicate poor self-control, lack of judgment, or unwillingness to
abide by rules and regulations, all of which can raise questions about an individual's reliability,
trustworthiness and ability to protect classified information. See Revised Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information, The White House, Guideline F
(December 19, 2005) [hereinafter Adjudicative Guidelines]. Moreover, the failure to provide truthful
and candid answers during a security clearance process also raises questions about an individual’s
reliability, trustworthiness and ability to protect classified information. Id., Guideline E.
IV. FINDINGS OF FACT AND ANALYSIS
The individual is 55 years old and began working for the DOE in March 2012. Tr. at 10. On May
22, 2012, OPM completed its background investigation of the individual. As the investigation
uncovered some derogatory information, DOE summoned the individual for a PSI on June 28, 2012.
Ex. 7 at 3-4.
A. Criterion L: Financial Irresponsibility and Unwillingness or Inability to Satisfy
Debts
During the hearing, the individual testified that from 2000 through 2008, he was employed by the
local government. Tr. at 47. He voluntarily left that job in January 2008 after deciding to enter into
the real estate market and start his own business. Id. Before leaving his job with the local
government, he spent about a year and a half starting his real estate company, and he stated that he
did not have any concerns about being able to satisfy his financial obligations. Tr. at 48. At the
time, he had several expenses for properties that he owned, including a timeshare that he purchased
sometime in 2006-2007 and the mortgage from a bank (Bank #1) on his personal residence. Tr. at
48. However, after the real estate market collapsed in March 2008, the individual’s business suffered
and consequently, he had to shut it down in 2009. Id. He then could not afford to make payments on
his mortgages and he began working part time in 2010 and 2011, earning just a few thousand dollars.
Ex. 8 at 22; Ex. 7 at 118.
Including his debt concerning his personal residence and timeshare, the individual had the following
mortgages: $70,930 home equity line of credit from a bank (Bank #2) for a condominium that he
rented out (“first rental property”) that is past due over 120 days for $4,000; $87,163 home equity
line of credit from Bank #2 for another rental property (“second rental property”) that was listed as
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being in collection for the full amount; $246,552 account balance with Bank #1 for the individual’s
personal residence that is past due over 120 days for $35,000; and $52,515 for his timeshare that is
past due over 120 days of $37,000.6 Ex. 1. These past due amounts are from the credit report dated
December 20, 2012.
The individual presented evidence challenging the accuracy of six of the debts listed in the Summary
of Security Concerns, listed in Paragraph IA, subsections d, f, h, j, p and t.7 After carefully reviewing
the evidence, I find that he has mitigated the concerns associated with those six debts. See Guideline
F, Paragraph 20(e) (“the individual has a reasonable basis to dispute the legitimacy of the past-due
debt which is the cause of the problem and provides documented proof to substantiate the basis of
the dispute or provides evidence of actions to resolve the issue”). He also presented credible
evidence showing that he satisfied eight debts listed in Paragraph IA, subsections e, i, k, m, n, o, q,
and s, before the hearing in this matter. See Ex. E, I, K, M, N, O, Q and S. Accordingly, I find that
the individual has mitigated the security concerns connected with those debts.
While I find that the individual sufficiently challenged some of the debts listed in the Summary of
Security Concerns and that he made payments on many of his other debts, it is unclear whether or not
he paid off other outstanding debts that he claims have been settled. Tr. at 61. For example,
according to paragraph I.A.r. of the Summary of Security Concerns, the individual owes $1,300 to
Bank #3 that is in collection. At the hearing, the individual said that he worked out a payment plan
with Bank #3 where he paid about $110 a month starting in 2012, and that his final payment to Bank
#3 was on December 24, 2013 for $332.51. Tr. at 60; Ex. R. Thus, he claims that he no longer owes
any payments to Bank #3. He further testified that he expects to receive documentation from Bank
#3 by January 24, 2014, indicating that he made all of his payments; however, to date, I have not
received documentation confirming that such payments were made and that he no longer has any
outstanding debt with Bank #3. Tr. at 61. While the exhibit indicates that the individual withdrew
$110 for 14 months and made a payment of $332.51 on December 24, 2013, from a bank account, it
is not apparent to whom those payments were made. Ex. R. Without more, I cannot conclude with
certainty that he satisfied his outstanding debt with Bank #3.
6 At his PSI, the individual stated that he took out the home equity line of credit on his first rental property in order to pay
for his children’s private school. Ex. 7 at 49-50. He also admitted that he did not make any payments towards the
mortgage on his personal residence with Bank #1 for over two years. Ex. 7 at 54.
7
First, as to the high credit balance reported in I.A.j of $32,392 for his car, the individual provided a letter from the
creditor, dated May 5, 2011, indicating that his car payments were completed. Ex. J. The creditor stated: “We have
received your final payment. Subject to a final accounting and receipt of good funds, your account will be considered as
paid in full.” Ex. J. In that same letter, the creditor stated that it was enclosing the certificate of title or a similar lien
release document. Ex. J. Indeed, the individual’s second credit report dated December 20, 2012, indicates that the
account was closed and that his last reported delinquencies were in April 2011 and December 2010. Ex. 3. Second, as
to the debt listed in I.A.d. for a returned check that was past due for $104, the individual presented a letter from the
creditor indicating that his credit reports should be amended to reflect that he paid off his debt, and that the claim
regarding his outstanding debt was closed on June 6, 2012. Ex. D. Third, regarding the debt listed in I.A.f. with a
balance of $1,289 that was past due $105, the individual presented a letter dated September 13, 2012, from the creditor
indicating that his account with them has been settled in full. Ex. F. Fourth, as to the debt listed in I.A.h. for a past due
amount of $317 that was in collection, the individual provided a letter from the creditor indicating that his account was
settled in full on October 18, 2012. Ex. H. Fifth, as to the debt listed in I.A.p. for which the individual had a collection
account balance of $279, the individual provided a letter dated December 27, 2010, from the creditor stating that the
amount he owed was considered paid in full. Ex. P. Finally, he provided a letter regarding the $1,500 debt listed in I.A.t.
that was in collection, indicating that his account with the creditor was settled in full on January 10, 2013. Ex. T.
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Moreover, at the hearing, the individual testified that in 2010 he paid off a $4,227.94 judgment to a
condominium association for failure to pay his dues, as listed in I.A.a. of the Summary of Security
Concerns. Tr. at 11-13. Yet, at his PSI on June 28, 2012, the individual stated that he paid off only
$2,700 of what was owed for that judgment, indicating that he still owed money at the time. Ex. 7 at
43-44. When asked to clarify these inconsistent statements, he could not explain why he stated at his
PSI that he was still making payments towards the judgment, which he later claimed was already
paid off in 2010. Tr. at 16-17. He believed that his judgment was paid off in 2010 because he
recalls that the firm representing the condominium association withdrew funds from his bank
account; while he claims he was not provided any warning about the withdrawals, he knew about it
after his check bounced. Tr. at 17. However, a review of the docket entries of the civil action filed
by the condominium association that resulted in the $4,227.94 judgment against the individual
demonstrates that the court issued a Writ of Garnishment of Property as late as February 23, 2012,
suggesting that the civil court action was still ongoing and that the full judgment amount was not yet
collected on by the condominium association. Ex. 5. Thus, based on the information in the docket
and the individual’s inconsistent statements at the hearing and his PSI, I am unable to find his
testimony on the satisfaction of his this debt credible. The record simply does not support the
individual’s assertions that he paid off that debt entirely in 2010, or at all.
However, the same condominium association that had the $4,227.94 judgment against the individual
subsequently filed another lawsuit against him for his past dues, and the individual countersued
because of damages to his unit. Tr. at 13-14. The individual and the condominium association then
entered into a Settlement Agreement on December 5, 2013, whereby the association agreed to pay
the individual $15,000. Ex A. When asked what he did with the money, the individual explained
that he used $5,000 to pay attorney’s fees and then paid off four of his other debts with the settlement
money. In total, he used approximately $8,540 of the $15,000 to pay off those bills and debts. Ex.
Y.
While I commend the individual for making efforts to pay off some of his debts as well as
sufficiently disputing some of the listed delinquent debts in the Summary of Security Concerns, he
still has not adequately demonstrated such good-faith efforts for his current debts related to his real
estate, which constitute the bulk of his indebtedness. See Guideline F, Paragraph 20(c) (“the
individual has initiated a good-faith effort to repay overdue creditors or otherwise resolve debts”).
Specifically, the individual still has high outstanding debts with Bank #2, timeshare creditor and
Bank #1 for which he has not made payments in a few years.
With regard to the amount that the individual owes to Bank #2 on the first rental property unit, he
stated that he is in the process of negotiating for a modification. Tr. at 21; Ex. B. That account has a
balance of $70,930, which is past due over 120 days in the amount of $4,000. Ex. 1. The individual
provided a copy of his January 3, 2014, application to Bank #2 to determine his eligibility for the
modification. Ex. B. At the hearing, the individual did not indicate that he made any payments
towards that debt as he is still negotiating a modification.
As for his second rental property, which the LSO stated is past due in the amount of $87,163, the
individual testified that there was a lawsuit by the condominium association that resulted in a
deficiency judgment against him on May 17, 2012, for $18,100.93 plus interest. Tr. at 24-25; Ex. C.
Thus, he contends that he does not owe $87,163 to Bank #2. As indicated by the court docket for
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that case, the condominium association brought the civil action against the individual to initiate a
foreclosure on his property and the court ratified a foreclosure sale on January 23, 2012, which
resulted in a deficiency judgment of $18,100.93 against the individual on May 17, 2012. Ex. C.
However, it is still unclear why both credit reports lists two separate account balances with Bank #2
of $70.930 and $87,163. At the hearing, the individual’s attorney explained that the individual took
out one home equity line of credit on two properties – the first rental property and the second rental
property – but then conversely, the individual testified that he took out two separate home equity
loans. Tr. at 28; 30. His attorney, however, argued that the home equity line of credit was reported
twice and that they could not find any documentation that there is a separate obligation of $87,163, in
addition to the $70,930, explaining “we can’t find anything that supports what was in the credit
report about a present amount due of 87,163. We can’t find it anywhere.” Tr. at 30; 32. The
individual also claimed that prior to the foreclosure sale of the second rental property, he may have
owed $87,163, but then after the foreclosure of the unit, he only owed the deficiency judgment
amount of $18,109.93, plus interest.8 Tr. at 32. Notably, the individual could not provide any
documentation from Bank #2 indicating that he only took out one home equity line of credit or that
he only owes Bank #2 $70,930, or that amount plus $18,109.93. See 10 C.F.R. § 710.27(b)(“In
reaching the findings, the Hearing Officer shall consider the demeanor of the witnesses who have
testified at the hearing, the probability or likelihood of the truth of their testimony, their credibility,
and the authenticity and accuracy of documentary evidence, or lack of evidence on any material
points in issue) (emphasis added). In summary, it appears that the individual is confused as to the
amount that he is indebted to Bank #2 and how many home equity lines of credits he took out,
suggesting he has yet to understand his debts and financial obligations.
With regards to his timeshare, for which the individual’s payments are past due in the amount of
$37,000, the individual testified that he is trying to speak with the attorney to resolve the debt. Tr. at
41; 45. He stated that he stopped making payments towards the timeshare when he lost his business
in 2009. He tried to sell the timeshare, but was unsuccessful because it was new and “they had not
finished the development at that point in time.” Tr. at 41. The individual testified that for months he
has tried to reach the attorney to set up a payment plan, which he has not been able to do as of the
date of the hearing. Tr. at 42. He stated that his priority after getting a job was to apply for a
modification of the mortgage on his primary residence, and then afterwards, he will try to settle the
issues regarding the timeshare payments. Tr. at 46. Thus, he has yet to make payments towards his
timeshare debt or enter into a payment plan.
Finally, the Summary of Security Concerns indicates that the individual’s account with Bank #1 has
a balance of $246,552 that was past due in the amount of $35,000 for his primary residence. He
testified that he purchased his primary residence in 1998, and stopped making regular payments on
his home after he became unemployed over two years ago. Tr. at 56; Ex. 7 at 52-54. Soon after he
began working for the DOE, in June 2012, he applied for a modification of his mortgage with Bank
#1, which was denied on December 3, 2013, due to the determination that his income was sufficient
to make his mortgage payments. Tr. at 55; Ex. L. Currently, the individual is in the process of
appealing Bank #1’s denial of his request for a modification and he has not made any payments
towards his home mortgage. Tr. at 56-57. The individual testified that he first contacted Bank #1 for
8 Moreover, the individual argued that he was not receiving any of the documents from the lawsuit as they were not
getting delivered to him in the mail, and that accordingly, he was not given an opportunity to object, which resulted in a
judgment against him. Tr. at 34. Indeed, in support of the individual’s testimony, the docket indicates that the mail the
court attempted to send to the individual was returned. Ex. C.
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mortgage assistance when he stopped working, which is why he believes they did not initiate
foreclosure proceedings against him even though he was not making payments on his mortgage. Tr.
at 58.
In addition, the DOE cited the individual’s failure to pay his federal income taxes for 2009, which
the individual later corrected was for 2008, in the amount of $2,000. During the hearing, the
individual stated that he made the payments on his taxes, and started making them in April 2012, a
month after he started working again. Tr. at 64. He also presented a copy of his account transcript
from the IRS indicating that he paid off his 2008 taxes. Ex. U. He explained that the reason he
owed taxes was because he forgot to report money that he had in a fund. Tr. at 65. Since then, he
has been regularly paying his taxes on time. Tr. at 67. Accordingly, I conclude that the individual
has mitigated the concerns associated with his failure to pay his 2008 federal taxes.
Regarding the tax lien on his first rental property that was listed in I.B.b., the individual stated that he
is actually current on his taxes and that during the PSI when he reported that there was a tax lien, he
explained that “I’m just kinda talking off the top of my head, the $5,000 was tied to back taxes and
that was an amount that, at that time, I believe, I guess I owed.” Tr. at 67. The individual provided a
property tax inquiry document for the first rental property to demonstrate that he is current on his
taxes through 2013. Ex. X. Hence, the individual has mitigated the concerns regarding the tax lien
on his property.
Finally, in regards to his budget, the individual stated that his monthly income, combined with his
wife’s income is approximately $6,814 and his expenses total about $5,565, so the individual is able
to save approximately $1,249 a month. Ex. Z. He further stated that he is able to save about $1,000
monthly and that as of the time of the hearing, he had approximately $6,000 in his savings. Tr. at
114.
In prior cases involving financial considerations, Administrative Judges have held that “[o]nce an
individual has demonstrated a pattern of financial irresponsibility, he or she must demonstrate a new,
sustained pattern of financial responsibility for a period of time that is sufficient to demonstrate that
a recurrence of the past pattern is unlikely.” See, e.g., Personnel Security Hearing, Case No. TSO-
1078 (2011); Personnel Security Hearing, Case No. TSO-0878 (2010); Personnel Security Hearing,
Case No. TSO-0746 (2009).
While the individual has satisfied many of his debts and saves approximately $1,249 a month, he still
has not established a sustained pattern of financial responsibility. His debts to the timeshare creditor,
Bank #1 and Bank #2 are still outstanding, and he has yet to make payments on his past due
accounts, which, at this point, have been past due for several years. In the meantime, there are also
reasons to remain cautious as to the risk of a recurrence of the individual’s past pattern of
irresponsibility. Of primary concern is that the individual is not familiar with the status of his debts
and cannot recall how many mortgages he took out with Bank #2 on his properties. In fact, even in
his testimony at the hearing, he was not clear on the status of his debts; yet, he still argued that the
credit report mistakenly listed an additional obligation to Bank #2 for $87,163. In addition, based on
the record before me, it appears that he only recently contacted Bank #2, in January 2014, to modify
his payment plan, while he had defaulted on his payments years earlier.
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While I appreciate the financial difficulties that the individual faced with the downturn of the real
estate market, the fact is that he decided on his own to leave his job with the local government to
start his own company. His financial problems did not result from circumstances beyond his control.
He was not laid off or terminated and therefore, he did have some control over the circumstances that
led to his financial hardship. See Guideline F, Paragraph 20(b) (“the conditions that resulted in the
financial problem were largely beyond the person's control (e.g. loss of employment, a business
downturn, unexpected medical emergency, or a death, divorce or separation), and the individual
acted responsibly under the circumstances”). While he contends that he struggled because his
business failed, he only entered the business by choice when he left his previous job in 2008, and just
a year later, faced his financial issues.
Based upon my evaluation of the record and the individual’s testimony at the hearing, it is simply too
soon to find that he has established a sustained pattern of financial responsibility. Given that he is
still trying to enter into payment plans or modify his loans with the timeshare creditor, Bank #1 and
Bank #2, and that he has not provided documentation of his total account balance with Bank #2, the
concerns raised by his outstanding debt have not been resolved. See 10 C.F.R. § 710.7(c) (relevant
factors include “recency of the conduct”). Moreover, despite his assertions, the individual has not
adequately demonstrated that he has satisfied the debts listed on I.A.a. and I.A.r. Hence, I cannot
conclude that the likelihood of recurrence of his financial struggles is low, particularly as he does not
have a sufficient grasp on his total indebtedness and financial obligations. Nor can I conclude that
the individual sufficiently mitigated the concerns with regards to his financial irresponsibility.
B. Criterion F: Deliberate Omission of Significant Information on a Security Form
The individual was cited for his deliberate failure to provide information on his SF-86 form, dated
January 30, 2012. Specifically, the LSO stated that the individual failed to list 16 of his delinquent
debts and several civil court actions. In his SF-86, he only listed the following delinquent accounts:
1) $4,200 that he owed for the first rental property from a judgment, 2) $80,000 that he owed to Bank
#2 for his second rental property, 3) $26,000 that he owes for the timeshare, and 4) $21,000 that he
owed to Bank #1 for his primary residence. Ex. 6. In response to the question in the SF-86 asking
whether in the last 10 years he was a party to any public record civil court action not listed elsewhere
on the form, he responded “No.” Id.
The individual stated that he listed the four real estate transactions that he was aware of and that he
did not list the Bank #2 account regarding the first rental property because he already listed the
$80,000 that he owed to Bank #2 in his SF-86. Tr. at 82-84. The individual argued that the
operative question on the SF-86 asks for the name of the organization to which debt is owed, and he
answered that question correctly by listing Bank #2. Tr. at 87. He claimed that he did not intend to
hide the fact that he had a home equity line of credit from Bank #2 that concerned his first rental
property. Tr. at 90.
Moreover, the individual claimed that when he completed the SF-86, he was not aware of his other
delinquent accounts as they were not as significant as his four real estate transactions. Tr. at 90. He
further asserted that if he had a copy of his credit report, he would have been able to provide
complete responses to the questions in the SF-86. Tr. at 91. He also claimed that he could not afford
to purchase a credit report at the time. Tr. at 89. The individual also asserted that he was not aware
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to whom he owed money to for his other debts as they were sold to other companies and his creditors
did not inform him of who owned his debts. Tr. at 93-94.
Furthermore, the individual argued that he did not know about the non-criminal court actions
because he never received notification of them until after he completed his SF-86 on January 30,
2012. Tr. at 84; Ex. V. In its exhibits, DOE provided a list of six civil court actions involving the
individual. Ex. 5. At the hearing, the individual explained that he was not properly served for these
cases. He indicated that for some of the civil actions, orders and pleadings that the court and
plaintiffs purported to serve on him, they were returned in the mail or some of the affidavits of
service actually described another individual who was served and not him. Tr. at 96-109; Ex. V.
Other cases were dismissed, which the individual also claimed that he did not know about before
completing the SF-86. Furthermore, he claimed that he did not list the court actions because the
question on the SF-86 asked for information regarding civil court actions that were not listed
elsewhere on the form; he believes that he correctly responded to that question as he listed the debts
related to the first and second rental properties, both of which were subjects of the civil court actions.
Tr. at 100. Moreover, when asked whether or not he recalled ever being served for a court
proceeding, the individual stated that he remembers being served once in the last ten years, for the
$4,200 judgment by the condominium association. Tr. at 106. I am convinced that the individual
may not have known about the various civil court actions, except for the $4,200 judgment, as he
recalls being served for that matter and he listed the judgment in Section 26 of his SF-86. Thus, he
has mitigated the concerns with regards to not listing his non-criminal court actions in his security
form.
Based on the following, however, I cannot conclude that the individual has mitigated the remainder
of the concerns associated with not listing his other outstanding debts in his SF-86. I find that his
incomplete and misleading answers regarding his outstanding debts raise concerns as he omitted
significant information from the questionnaire. Listed in Adjudicative Guideline E, are the following
conditions that may mitigate concerns regarding an individual’s questionable judgment, lack of
candor, or dishonesty:
(a) the individual made prompt, good-faith efforts to correct the omission, concealment, or
falsification before being confronted with the fact;
(b) the refusal or failure to cooperate, omission, or concealment was caused or significantly
contributed to by improper or inadequate advice of authorized personnel or legal counsel
advising or instructing the individual specifically concerning the security clearance process.
Upon being made aware of the requirement to cooperate or provide the information, the
information cooperated fully and truthfully.
(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 unlikely to recur and does not cast doubt
on the individual’s reliability, trustworthiness, or good judgment;
(d) the individual has acknowledged the behavior and obtained counseling to change the
behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that
caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is
unlikely to recur;
(e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation,
manipulation or duress;
(f) the information was unsubstantiated or from a source or questionable reliability;
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(g) association with persons involved in criminal activity has ceased or occurs under
circumstances that do not cast doubt upon the individual’s reliability, trustworthiness,
judgment, or willingness to comply with rules and regulations.
None of the possible mitigating factors set forth above apply in this case. Hence, the individual has
failed to convince me that he did not deliberately omit information regarding his delinquent debts in
his security form. First, I find it hard to believe that the individual could not afford to purchase his
credit report in order to truthfully and accurately complete his SF-86. Second, I find it not credible
that he failed to ascertain the status of his debts and financial obligations while completing his SF-
86, especially considering the grave consequences for providing false and misleading answers in the
questionnaire. It is this lapse in judgment and lack of reliability that raises serious concerns. For all
these reasons, I cannot find that the individual has mitigated the security concerns associated with his
lack of honestly, reliability and trustworthiness.
V. CONCLUSION
In the above analysis, I have found that there was sufficient derogatory information in the possession
of the DOE that raises serious security concerns under Criteria (f) and (l). 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 have found that
the individual has not brought forth sufficient evidence to mitigate all of the security concerns at
issue. I therefore cannot find that restoring the individual’s access authorization will not endanger the
common defense and is clearly consistent with the national interest. Accordingly, I have determined
that the individual should not be granted access authorization. The parties may seek review of this
Decision by an Appeal Panel under the regulations set forth at 10 C.F.R. § 710.28.
Shiwali G. Patel
Administrative Judge
Office of Hearings and Appeals
Date: February 21, 2014