PSH-14-0065

*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: June 23, 2014 ) Case No. PSH-14-0065
)
_________________________________________ )
Issued: September 18, 2014
__________________________
Administrative Judge Decision
__________________________
Diane DeMoura, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXXX (“the Individual”) to hold an
access authorization under the Department of Energy (DOE) regulations set forth at 10 C.F.R.
Part 710, Subpart A, entitled “General Criteria and Procedures for Determining Eligibility for
Access to Classified Matter or Special Nuclear Material.”1 For the reasons detailed below, after
carefully considering the record before me in light of the applicable regulations and the
Adjudicative Guidelines, I find that the Individual’s suspended DOE access authorization should
not be restored at this time.
I. BACKGROUND
The Individual is a DOE contractor employee who has held a DOE access authorization since
2008. DOE Exhibit (“Ex.”) 9. During a routine reinvestigation of the Individual’s security
clearance, conducted by the Office of Personnel Management (OPM), questions arose regarding
the Individual’s finances, as well as the accuracy of certain responses that he provided on a June
2013 Questionnaire for National Security Positions (QNSP). See DOE Exs. 16 (June 2013
QNSP), 20 (OPM Report). As a result, the Local Security Office (LSO) requested that the
Individual participate in a March 2014 Personnel Security Interview (PSI) in order to discuss
those matters. DOE Ex. 17. In May 2014, the LSO informed the Individual that there existed
1 Access authorization, also known as a security clearance, is an administrative determination that an individual is
eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5.
- 2 -
derogatory information that raised security concerns under 10 C.F.R. § 710.8(l) (Criterion L).2
See DOE Ex. 1 (Notification Letter, May 16, 2014).
The Individual requested a hearing on this matter. DOE Ex. 2. The LSO forwarded his request
to the Office of Hearings and Appeals, and I was appointed the Administrative Judge. At the
hearing, the Individual, represented by counsel, offered his own testimony as well as the
testimony of two coworkers. In addition, the Individual submitted seventeen exhibits into the
record (Indiv. Exs. A-Q). The DOE counsel presented no witnesses, and tendered twenty
exhibits (DOE Exs. 1-20). See Transcript of Hearing, Case No. PSH-14-0065 (hereinafter cited
as “Tr.”).
II. REGULATORY STANDARD
The regulations governing the Individual’s eligibility for access authorization are set forth at
10 C.F.R. Part 710, “Criteria and Procedures for Determining Eligibility for Access to Classified
Matter or Special Nuclear Material.” The regulations identify certain types of derogatory
information that may raise a question concerning an individual’s access authorization eligibility.
10 C.F.R. § 710.10(a). Once a security concern is raised, the individual has the burden of
bringing forward sufficient evidence to resolve the concern.
In determining whether an individual has resolved a security concern, the Administrative Judge
considers relevant factors, including “the nature, extent, and seriousness of the conduct; the
circumstances surrounding the conduct, to include knowledgeable participation; the frequency
and recency of the conduct; the age and maturity of the individual at the time of the conduct; the
voluntariness of participation; the absence or presence of rehabilitation or reformation and other
pertinent behavioral changes; the motivation for the conduct; the potential for pressure, coercion,
exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and
material factors,” and the impact of the foregoing on the relevant security concerns. 10 C.F.R.
§ 710.7(c). In considering these factors, the Administrative Judge also consults adjudicative
guidelines that set forth a more comprehensive listing of relevant factors and considerations. See
Revised Adjudicative Guidelines for Determining Eligibility for Access to Classified
Information (issued on December 29, 2005 by the Assistant to the President for National
Security Affairs, The White House) (Adjudicative Guidelines).
Ultimately, the decision concerning eligibility is “a comprehensive, common-sense judgment
made after consideration of all relevant information, favorable and unfavorable . . . .” 10 C.F.R.
§ 710.7(a). In order to reach a decision favorable to the individual, the Administrative Judge
must find that “the grant or restoration of access authorization to the individual will not endanger
the common defense and security and is clearly consistent with the national interest.” 10 C.F.R.
§ 710.27(a). “Any doubt as to an individual’s access authorization eligibility shall be resolved in
favor of the national security.” Id. See generally Dep’t of the Navy v. Egan, 484 U.S. 518, 531
2 Criterion L concerns conduct tending to show that the Individual was “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. § 710.8(l).
- 3 -
(1988) (the “clearly consistent with the interests of national security” test indicates that “security
clearance determinations should err, if they must, on the side of denials”).
III. DEROGATORY INFORMATION AND ASSOCIATED SECURITY CONCERNS
As stated above, the LSO issued a Notification Letter informing the Individual that the DOE
possessed derogatory information which raised doubts regarding his continued eligibility to hold
a DOE access authorization. According to the Notification Letter, this information raises
security concerns under Criterion L of the Part 710 regulations. DOE Ex. 1. As a basis for its
Criterion L concerns, the LSO cited information which called into question the Individual’s
honesty, reliability, and trustworthiness, as well as his willingness and ability to satisfy his
financial obligations. Id.
In support of its concerns regarding the Individual’s honesty, trustworthiness or reliability, the
LSO referred to certain responses that the Individual provided on the June 2013 QNSP.
Specifically, the LSO cited: (1) the Individual’s response that, in the last seven years, he had not
had any bills or debts turned over to a collection agency, despite having had eleven accounts
turned over to a collection agency within the past seven years; (2) the Individual’s response that,
in the past seven years, he had not had any account or credit card suspended, charged off, or
cancelled for failing to pay as agreed, despite having had two charged off accounts in the past
seven years; (3) the Individual’s response that, in the past seven years, he had not been ordered,
advised, or asked to seek counseling or treatment as a result of his use of alcohol, despite having
been advised by his employer to seek counseling or treatment as a result of his alcohol use
following his September 2008 criminal charge for Public Intoxication; and (4) the Individual’s
response that he had never been charged with an offense involving alcohol or drugs, despite his
September 2008 criminal charge for Public Intoxication. Id. According to the Adjudicative
Guidelines, “conduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations can raise questions about an individual’s
ability to protect classified information.” Id., Guideline E, ¶ 15. Among the conditions regarding
an individual’s conduct that may raise security concerns are “deliberate omission, concealment,
or falsification of relevant facts from any personnel security questionnaire . . . .” and
“deliberately providing false or misleading information concerning relevant facts to an employer,
investigator, security official, competent medical authority, or other official government
representative[.]” Id., Guideline E, ¶¶ 16 (a), (b). In this case, given the Individual’s inaccurate
responses on the June 2013 QNSP, the LSO properly invoked Criterion L with respect to the
Individual’s candor.
With respect to its concerns regarding the Individual’s financial responsibility, the LSO cited the
following: (1) the Individual’s unpaid collection accounts, totaling approximately $3,900; (2) the
Individual’s charged off account, totaling approximately $480; (3) the Individual’s failure to file
his federal3 personal income tax returns for tax years 2010, 2011, and 2012; (4) the Individual’s
statement during the March 2014 PSI that he does not believe he is financially responsible, and
attributing his debts to laziness; and (5) the Individual’s failure to resolve old debts and his
accrual of new debts, despite having been previously made aware of the DOE’s concern
regarding his finances. Id. It is well-settled that the failure or inability to live within one’s
3 The state in which the Individual resides does not require the filing of annual personal income tax returns.
- 4 -
means, satisfy debts, and meet financial obligations “may indicate poor self-control, lack of
judgment, or unwillingness to abide by rules and regulations,” which, in turn, may call into
question an individual’s reliability, trustworthiness and ability to protect classified information.
Adjudicative Guidelines, Guideline F, ¶ 18. Among the behaviors which may give rise to
security concerns related to an individual’s financial irresponsibility are a “failure to file annual
Federal, state, or local income tax returns . . . ,” a “history of not meeting financial obligations,”
and an “inability or unwillingness to satisfy debts.” Id. at ¶ 19(a), (c), (g). Given the cited
information which indicated that the Individual had multiple outstanding debts and did not file
required federal income tax returns for tax years 2010 through 2012, I find that the LSO had
ample grounds to invoke Criterion L with respect to the Individual’s purported pattern of
financial irresponsibility.
IV. FINDINGS OF FACT AND ANALYSIS
In making a determination regarding the Individual’s eligibility for DOE access authorization, I
have thoroughly considered the record in this proceeding, including the hearing testimony and
the documentary evidence. For the reasons set forth below, I cannot conclude that restoring the
Individual’s suspended DOE access authorization “will not endanger the common defense and
security, and is clearly consistent with national interest.” 10 C.F.R. § 710.7(a).
The facts in this case are essentially undisputed. The Individual acknowledged that he had the
debts cited in the Notification Letter, and that he failed to file his federal personal income tax
returns for tax years 2010, 2011, and 2012. Tr. at 37, 46. The Individual attributed his
outstanding debts and tax issues to actions taken by his wife, from whom he is currently
separated. Tr. at 47. According to the Individual, he was deployed while on active duty in the
military for much of his marriage and, consequently, his wife typically handled the household
finances on her own. Tr. at 47-52. The Individual explained that, during two prior separations,
his wife continued to pay his bills and file his taxes. He incorrectly assumed that she had
continued to do so during their current separation. Id.
The Individual has since learned the extent of his unpaid accounts, as well as the status of his tax
returns, and has been actively engaged in trying to resolve those matters. With respect to the
delinquent accounts, the Individual established at the hearing that he has paid in full all but one
of the debts. Tr. at 37-45; Indiv. Exs. F-O. He has made arrangements with the remaining
creditor in order to repay the outstanding debt in biweekly installments, and expects that the debt
will be repaid in full in one to two years. Tr. at 39. The Individual has also worked with a tax
preparer and has filed his outstanding tax returns. Tr. at 52-53; Indiv. Exs. B-E, P. Based on his
filings, he learned that he currently owes unpaid taxes, but he is not yet certain of the total
amount. Tr. at 53-56. According to the Individual’s tax preparer, the Individual’s outstanding
balance is approximately $23,000, not including “additions or computations of penalties for late
filing, late paying, and interest, which could range from $5,000 to $10,000.” Indiv. Ex. P.
However, the Individual’s tax preparer intends to request that the penalties be waived or abated,
and he expects that the request will be granted. Id. The Individual’s tax preparer intends to work
with the Individual to reach a settlement which may reduce the total amount that the Individual
owes, and will help him negotiate a payment agreement to resolve his outstanding tax debt. Id.
- 5 -
The Individual understands the importance of resolving his financial difficulties. He stated that
he intends to be more proactive and organized in this regard in the future. To that end, he has
enrolled in a financial counseling program offered by his employer, intends to complete the eight
complimentary one-hour sessions available to him, and will pay for additional sessions if
necessary. Tr. at 59-61, 80-81; Indiv. Ex. A.
With respect to the concerns cited in the Notification Letter regarding his honesty, reliability, and
trustworthiness, the Individual acknowledged that his June 2013 QNSP contained incorrect
responses. Tr. at 63-65. However, he maintained that he did not intentionally falsify, omit, or
misrepresent information on the form. He believed when he completed the QNSP that he had
answered the questions truthfully. As to the inaccurate responses regarding his finances, the
Individual explained that, when he completed the form in June 2013, he was not aware that he
had the various listed debts. Tr. at 65. He stated that he did not become aware of the extent of
his financial issues until he obtained a copy of his credit report in advance of the March 2014
PSI. Id. The Individual further explained that he did not list his 2008 alcohol-related counseling
because he believed he had gone “voluntarily,” and thus did not have to list it on the QNSP. Tr.
at 69. Finally, the Individual attributed his failure to list his 2008 Public Intoxication charge on
the QNSP to his misunderstanding of what type of information the question required. Tr. at 70-
71. Specifically, because the charge was resolved through a “deferred adjudication” and did not
remain on his criminal record, he did not believe he was required to list it. Id. The Individual
acknowledged that, in retrospect, he erred in not listing the information as required. Tr. at 68.
The Individual’s coworkers, who are also his longtime friends, testified that, despite his past
mistake, the Individual is honest, reliable, and trustworthy. Tr. at 14, 26-27.
As noted above, with respect to an individual’s honesty and candor, the “deliberate omission,
concealment, or falsification of relevant facts from any personnel security questionnaire . . . .”
and “deliberately providing false or misleading information concerning relevant facts to an
employer, investigator, security official, competent medical authority, or other official
government representative” raises security concerns. Id., Guideline E, ¶¶ 16 (a), (b). In this
case, upon consideration of the hearing testimony and the entire record of this proceeding,
including the Individual’s candor and demeanor at the hearing, I find it unlikely that the
Individual deliberately attempted to conceal or withhold information. Specifically, the
Individual has been generally candid and forthright in providing information to the DOE. See,
e.g., DOE Exs. 12-15, 17-19. I find that the Individual’s omissions regarding his alcohol-related
counseling and alcohol-related criminal charge are attributable to genuine confusion on his part
regarding the nature of the information required on the QNSP. I further conclude that the
Individual’s remaining omissions regarding his delinquent accounts were very likely a product of
his prior lax or haphazard approach toward managing his personal finances, rather than due to
any intent to deceive or conceal information. Given that the Individual is now aware of the
required information, I find that it highly unlikely that he will make similar errors in the future.
Therefore, I conclude that the behavior at issue with respect to the Individual’s candor
“happened under such unique circumstances that it is unlikely to recur,” and it does not, in and of
itself, “cast doubt on [the Individual’s] reliability, trustworthiness, or good judgment.” See
Adjudicative Guidelines, Guideline E, ¶ 17.
- 6 -
Nonetheless, the Criterion L concerns regarding the Individual’s financial irresponsibility
remain. Among the factors that may serve to mitigate security concerns raised by an individual’s
financial problems are that “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,” or that “the conditions that resulted in the
financial problem were largely beyond the person’s control (e.g. loss of employment . . . [or an]
unexpected medical emergency . . . ) and the individual acted responsibly under the
circumstances[.]” Adjudicative Guidelines, Guideline F, ¶ 20.
In this case, I must first note that, as the Individual’s estranged wife did not testify at the hearing,
several of the Individual’s assertions or explanations attributing his financial difficulties largely
to actions that she took, or failed to take, remain uncorroborated in the record. Nonetheless, even
accepting the Individual’s assertions as true, upon consideration of the record in this case, I
cannot conclude that the Individual has resolved the Criterion L concerns regarding his pattern of
financial irresponsibility. As of the hearing, the Individual had become much more proactive in
addressing his financial issues. See, e.g., Tr. at 79-80. He successfully resolved the various
debts cited in the Notification Letter by repaying most of the debts and entering into a repayment
arrangement for the remaining debt. He has also attempted to resolve his tax situation by
seeking the assistance of a professional and filing his delinquent tax returns. Finally, he has
begun to educate himself on the best methods for managing his finances through resources that
his employer has made available to him. All of these are positive factors. However, the
Individual is in the very early stages of resolving his financial difficulties. He repaid his
outstanding debts by taking out a personal loan (with a monthly payment that he indicates is
currently manageable). Tr. at 95. He also still has a sizeable outstanding tax debt whose status
is uncertain. Finally, while the Individual appears able to satisfy his current monthly financial
obligations, he has little margin for error and no money in savings at this time. Tr. at 94; Indiv.
Ex Q. Consequently, should he be faced with an unexpected or emergency expense, the progress
he has begun to make in righting his finances could easily be reversed.
In prior cases involving financial irresponsibility, we 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 Personnel Security Hearing, Case No. PSH-14-
0001 (2014); Personnel Security Hearing, Case No. TSO-1078 (2011); Personnel Security
Hearing, Case No. TSO-0878 (2010); see also Adjudicative Guidelines, Guideline F, ¶ 20. In
this case, it is simply too soon since the Individual began addressing his financial issues to
conclude that his financial situation is currently stable such that his financial difficulties are in
the past and unlikely to recur and, therefore, do not cast doubt on his current reliability,
trustworthiness, or good judgment. Consequently, I cannot conclude at this time that the security
concerns cited under Criterion L regarding the Individual’s pattern of financial irresponsibility
have been fully resolved.
V. CONCLUSION
In the above analysis, I found that there was reliable information that raised substantial doubts
regarding the Individual’s eligibility for a security clearance under Criterion L of the Part 710
- 7 -
regulations. After considering all of the relevant information, favorable and unfavorable, in a
comprehensive, common-sense manner, including weighing all of the testimony and other
evidence presented at the hearing, I find that the Individual has not presented sufficient
information to resolve all of the security concerns cited under Criterion L. Therefore, I cannot
conclude that restoring the Individual’s suspended DOE access authorization “will not endanger
the common defense and security is clearly consistent with the national interest.” 10 C.F.R.
§ 710.7(a). Accordingly, I find that the DOE should not restore the Individual’s suspended DOE
access authorization at this time.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth
at 10 C.F.R. § 710.28.
Diane DeMoura
Administrative Judge
Office of Hearings and Appeals
Date: September 18, 2014