PSH-14-0071

*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: July 24, 2014 ) Case No. PSH-14-0071
)
_________________________________________ )
Issued: October 10, 2014
__________________________
Administrative Judge Decision
__________________________
William M. Schwartz, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXX (“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 DOE should not restore the individual’s access
authorization at this time.
I. BACKGROUND
The individual is a DOE contractor employee who holds a DOE access authorization, now in
suspension. In April 2014, the Local Security Office (LSO) conducted a Personnel Security
Interview (PSI) with the individual in order to discuss certain information it had gathered
concerning her financial status. In June 2014, the LSO sent a letter (Notification Letter) to the
individual advising her that it possessed reliable information that created substantial doubt
regarding her eligibility to hold a security clearance. In an attachment to the Notification Letter,
the LSO explained that the derogatory information fell within the purview of two potentially
disqualifying criteria set forth in the security regulations at 10 C.F.R. § 710.8, subsections (f) and
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.
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(l) (Criteria F and L, respectively).2 See Ex. 1 (Summary of Security Concerns). The
Notification Letter also informed the individual that she was entitled to a hearing before an
Administrative Judge in order to resolve the security concerns. Id.
The individual requested a hearing on this matter. Ex. 2. The LSO forwarded her request to the
Office of Hearings and Appeals, and I was appointed the Administrative Judge. The DOE
counsel tendered 15 numbered exhibits into the record in advance of the hearing, and the
individual produced three exhibits at the hearing and one following the hearing, which I have
labeled as Exhibits A through D. At the hearing, the individual represented herself, and offered
her own testimony as well as the testimony of two witnesses. The DOE Counsel presented no
witnesses at the hearing.
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
2 Criterion F concerns arise from derogatory information that the individual “[d]eliberately misrepresented, falsified,
or omitted significant information from . . . a personnel security interview, [or] 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.” 10 C.F.R. § 710.8(f). 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).
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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
(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 that raises doubts under Criteria F and L regarding her
eligibility to hold a DOE access authorization. Ex. 1. The LSO supported its Criterion F
concern by alleging that the individual failed to list all of her accounts in collection on the
Questionnaire for National Security Positions (QNSP) that she completed on October 8, 2013.
She admitted at her April 2014 PSI that she had omitted roughly 18 accounts from the QNSP.
During the same PSI, the individual stated that she was making payment on all her accounts, but
later, after being confronted with contradicting information, recanted, and stated that she had
made payment arrangements on only two of her overdue accounts. I find that the above
information constitutes derogatory information that raises questions about the individual’s
conduct under Criterion F. 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. Adjudicative
Guidelines, Guideline E at ¶ 17.
As the basis of its Criterion L concern, the LSO cited the individual’s history of financial
irresponsibility. Ex. 1. In its Notification Letter, the LSO listed the individual’s collection
accounts, an outstanding judgment, charged-off accounts, and her admission at her April 2014
PSI that she owed federal and state taxes for the tax year 2011 as evidence of her current
delinquent debts. The LSO also stated that her recent bankruptcy and her failure to make
arrangements to pay off debts as she had committed to during a 2008 PSI demonstrated her
unwillingness or inability to satisfy her legal debts. Finally, the LSO documented additional
concerns about her financial status by referring to her admissions during the 2014 PSI that she
had not paid her collection amounts for several years and that she had been overspending. Ex. 1.
It is well-settled that 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,” which, in turn, may call into question an individual’s reliability,
trustworthiness and ability to protect classified information. Adjudicative Guidelines,
Guideline F at ¶ 18. Among the behaviors that may give rise to security concerns related to an
individual’s financial irresponsibility are “inability or unwillingness to satisfy debts” and “a
history of not meeting financial obligations.” Id. at ¶ 19(a), (c). In light of the information cited,
I find that the LSO properly invoked Criterion L.
IV. FINDINGS OF FACT
The individual had three children with her first husband. Since their divorce many years ago, she
has raised the children on her own. Transcript of Hearing (Tr.) at 9-10, 23. Her former husband
has contributed very little in child support over the years; he is currently owes $93,305.15 in
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unpaid child support. Ex. C. Her second husband, whom she married about 12 years ago and
from whom she is now separated, has four children from a prior marriage. Tr. at 38. He
contributes little to the household finances, including the expenses of his own children, but rather
spends most of his income on his personal needs and desires. Tr. at 10-11, 16, 25. The
individual has taken on a second job to help make ends meet. Id. at 25.
As long ago as 2004, the LSO put the individual on notice that it was concerned about her
financial position. In July 2004, the LSO conducted a PSI with the individual in which her
outstanding debts were discussed. Ex. 14. At that time, the individual acknowledged her debts,
explained that she had difficulty keeping up with them while she was divorced, and stated that
after remarrying in 2002, she now paid her bills on time. Id. at 17-20, 23. She committed to
contacting her creditors and paying the debts she owed. Id. at 26-28. A 2008 background
investigation revealed that most of her 2004 debts remained unpaid, and in 2009 she again
committed to paying each of her debts. Ex. 6; Tr. at 42. At her April 2014 PSI, she could not
explain why she had gained no ground with respect to her debts after 2004. Ex. 13 at 65-66. She
admitted that she may have gone “overboard” buying for her children to make “up the difference
for them not having support from their father.” Ex. 13 at 66. As of April, she was still
supporting the three youngest children of the combined family. Id. at 68.
After the April 2014 PSI, the individual pursued bankruptcy. Tr. at 68. She moved, with the
children, out of the residence she shared with her husband, and now lives with her mother
nearby. Id. at 27. She continues to help her children with their expenses; in particular, she
makes car loan payments for their cars as well as her own. Id. at 46. She also continues to pay
her share of the mortgage on the residence she formerly shared with her husband, though in July
she reduced her monthly contribution from $1600 to $600. Id. at 68, 71. She has stopped using
all credit cards and, other than her car and house payments, makes all purchases in cash. Id.
at 49. She has met with a financial counselor through her Employment Assistance Program, and
intends to continue seeing him twice a month. Id. at 44-46. The individual now looks carefully
at every discretionary expense, such as eating out, to consider whether it fits within her budget.
Id. at 50. The individual’s bankruptcy petition was discharged on September 2, 2014. Ex. D.
V. 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 an
access authorization to the individual “will not endanger the common defense and security, and
is clearly consistent with national interest.” 10 C.F.R. § 710.7(a).
A. The Individual’s Mitigating Evidence
1. Criterion F: Deliberate Misrepresentation
As set forth above, Criterion F concerns arise from information that an individual has
“deliberately misrepresented, falsified, or omitted significant information” on forms completed
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or in statements made relevant to a determination regarding his or her eligibility for access
authorization. 10 C.F.R. § 710.8(f).
The individual in this case made two misrepresentations: not listing on her 2013 QNSP a
substantial number of collection accounts, and stating during her 2014 PSI that she was making
or arranging payment to all of her creditors. At the hearing, she offered the following
explanation for not listing her collection accounts. She stated that at the time she was
completing the QNSP, she was unable to obtain and view her credit report at work. Although
she could obtain and view her credit report at home, she had no printer at home and therefore no
means to make a copy of the information required on the QNSP. Her father had recently died,
and she was depressed and lethargic. She listed the one collection account that she could recall,
a cell phone bill, but the effort to report the rest of the accounts overwhelmed her. She also
stated that she knew the investigators would obtain her credit report and give her a copy, and she
decided that she would wait until then to correct the financial section of her QNSP. She recalled
having a deadline by which to complete the QNSP, but rushed to turn it in early so that she could
return to the demands of her job. Finally, she stated that she never intended to deceive the LSO
with her responses. Tr. at 53-55, 60. She conceded at the hearing that, in hindsight, she could
have completed the QNSP correctly by viewing her credit report at home and filling out the
appropriate section of the QNSP by hand. Id. at 54.
As for her statement at the 2014 PSI that she was “making payments on everything,” she
admitted at the hearing that she had spoken too broadly: she meant to say that she was making
payments on everything that she could. She testified that she was not trying to deceive the LSO
into believing that she was paying all of her creditors. She pointed out that later in the interview,
when the interviewer reviewed each of her debts, she was more accurate in reporting her status
with respect to each creditor. It was then that she stated that she did not have plans with all of
her creditors, but had started reaching out to some of them, and intended to pay them all in time.
Id. at 56-58.
2. Criterion L: Financial Irresponsibility
As the interviewer stated at the 2004 PSI, a person experiencing financial difficulties presents
security concerns because he or she may be vulnerable to blackmail or coercion, if attempting to
conceal those difficulties from others, and might be willing to accept money to resolve
outstanding debts. Ex. 14 at 31.
At the hearing, the individual acknowledged the current delinquent debts and charged-off
accounts that the LSO listed in its Notification Letter. Tr. at 33, 62. She stated that she decided
to pursue bankruptcy when she came to the conclusion that it was the only practical option for
eliminating her long-standing debts. Id. at 68. She understood that the bankruptcy would relieve
her of the obligation to pay those her delinquent debts, and that the creditors of the charge-off
accounts, not part of the bankruptcy, had already concluded that she would not repay those debts.
Id. at 32, 35. Nevertheless, she stated that she could make good faith payments to those debtors,
when she had money available, even though she has no obligation to do so. Id. at 33.
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The individual also addressed two specific outstanding debts at the hearing. The Notification
Letter listed an outstanding judgment against her obtained by her credit union. Ex. 1. At the
hearing, the individual explained that both she and her bankruptcy lawyer attempted to confirm
this debt, but the credit union was unable to acknowledge its existence. In an abundance of
caution, this debt was included in her bankruptcy petition, but it appears that it may not be a
legitimate debt at all. Tr. at 62-63. She also addressed the amount she currently owes on her
state and federal taxes for 2011. She stated that she received a refund of about $1200 with
respect to her 2013 taxes, and that amount was applied against her tax debt. As a result, she now
owes roughly $1800, and her intent is to set up a payment plan with the Internal Revenue
Service. Id. at 61-62.
Responding to the LSO’s concerns that her pattern of financial irresponsibility reflected an
unwillingness or inability to satisfy legal debts, the individual explained at the hearing that she
resisted filing for bankruptcy because she did not believe it was a proper approach to debts; she
believed she should pay her bills. Id. at 67. For this reason, more than ten years passed between
the time the LSO first expressed its concerns over the individual’s financial difficulties and the
time that she ultimately filed for bankruptcy. The individual stated that, during that extended
period, she intended to pay her debts but unfortunately was unable to do so. Id. at 30.
Finally, the individual addressed the LSO’s concern in its Notification Letter that the individual
had admitted during her 2014 PSI that she had been overspending. She clarified that she was
asked whether anybody would say she was living beyond her means, and she responded that her
mother, a very frugal person, would say so. Id. at 64, 66; Ex. 13 at 82. She stated that after the
PSI, she asked her mother that question, and her mother replied, “I don’t think you overspend.”
Tr. at 65. She did acknowledge, however, that when the interviewer asked her whether she
considered herself financially responsible, she replied, “No,” explaining that her credit report
illustrated that she was responsible with respect to her day-to-day bills but not to those
accumulated in the past. Id. at 66-67; Ex. 13 at 82.
B. Administrative Judge’s Evaluation of Evidence
The individual has clearly faced trying circumstances in recent years. Her divorce from her first
husband left her as the sole supporter of her household, including three children, and child
support, though ordered, has not been forthcoming. Her second husband contributed less to
household expenses over time. Her limited resources forced her to choose between paying off
old debts and keeping up with current expenses, such as housing and food for her children and
herself, and she chose the latter. Tr. at 36. She has stretched her income for many years to
support many people, including children of her second husband. As devoted and honorable as
her efforts have been, I must nevertheless conclude that the individual has not mitigated the
LSO’s security concerns regarding her financial decisions and her dealings with the LSO.
I find that the individual has not mitigated the Criterion F concerns expressed by the LSO in its
Notification Letter. She was clearly under significant pressure to complete her QNSP while
responding to her usual work demands as well as coping with the loss of her father. She
maintains that these strains led her to omit a significant number of amounts in collection from
her QNSP. She convinced herself that no harm was done, as the LSO would acquire her credit
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report at a later stage of their investigation and would see the full extent of her financial
problems. Although the individual expressed that she had no intent to deceive the LSO into
believing her finances were in order, and I find her testimony to be very credible, I cannot find
that she did not deliberately omit significant information from a personnel security questionnaire.
Adjudicative Guidelines, Guideline E at ¶16(a). As for her overstatement at the start of her
2014 PSI that she was taking care of all her outstanding debts, she corrected herself later in the
PSI after the interviewer brought to her attention that the credit reports did not reflect such
arrangements. As above, while I accept the individual’s assertion that she did not intend to
deceive the LSO, I cannot find that she has mitigated the LSO’s concern about her lack of
straightforwardness in regard to these facts. Cf. Adjudicative Guidelines, Guideline E at ¶ 17(a)
(mitigation possible when efforts to correct omission occur before being confronted with facts).
I also find that the individual has not sufficiently mitigated the LSO’s Criterion L security
concerns regarding her financial irresponsibility. I find this conclusion unfortunate and
somewhat ironic because, when viewed in a non-security context, the basis for the individual’s
financial decisions lies in her sense of responsibility toward all those who surround her. She has
chosen to pay the mortgage and household expenses, even without appropriate contributions
from each of her husbands, in order to shelter her children and those of her husband. She has
admitted that at times she has indulged her children, to make up for her first husband’s lack of
support. She makes car loan payments so that her children may drive cars. She has continued to
pay her share of the monthly mortgage payment on a house in which only her now-separated
husband lives, even though the house is owned solely by the husband. Tr. at 68. She has even
acknowledged her responsibility to repay her creditors, even though her recent bankruptcy frees
her of that obligation.
Among the factors that may serve to mitigate security concerns raised by an individual’s failure
to satisfy debts and meet financial obligations is 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.” Adjudicative
Guidelines, Guideline F at ¶ 20(a). Although the individual accrued most of the debts listed in
the Notification Letter in the past, and appears to be meeting her current expenses, these debts
remained unresolved until just recently, with the discharge of her bankruptcy petition. In
addition, while her recent move into her mother’s house would appear to relieve her of housing
costs, as of the hearing, she was still contributing to her husband’s mortgage payment. I cannot
find at this time that the circumstances under which she incurred her debts are unlikely to recur,
though her recent separation, bankruptcy, and financial counseling all impress upon me that her
financial situation is likely to improve in the future.
Nor can I find other conditions that might mitigate the LSO’s concern with respect to the
individual’s financial irresponsibility. Although her financial hardship arose as the result of a
divorce and the lack of financial contributions from two husbands, id. at ¶ 20(b), and the record
reflects that she has met on one occasion with a financial counselor, id. at ¶ 20(c), it is too early
in the counseling process for me to conclude that that the problem is being resolved or under
control. Adjudicative Guidelines, Guideline F at ¶ 20(c).
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Although the individual started to make an effort to resolve her financial problems by filing for
bankruptcy and obtaining financial counseling, in prior cases involving financial irresponsibility,
Administrative Judges and Hearing Officers 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-
0050 (2014); Personnel Security Hearing, Case No. PSH-13-0098 (2013); Personnel Security
Hearing, Case No. PSH-12-0134 (2013).3/ At this point, the individual has not demonstrated a
sustained pattern of financial responsibility for a significant period of time relative to her period
of financial irresponsibility. I therefore cannot find that the individual has sufficiently mitigated
the security concerns associated with Criterion L.
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 Criteria F and L of the Part
710 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 fully resolve the security concerns raised under Criteria F and L. Therefore, I
cannot conclude that restoring a security clearance to the individual “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 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.
William M. Schwartz
Administrative Judge
Office of Hearings and Appeals
Date: October 10, 2014
3/ OHA decisions are available on the OHA website at www.energy.gov/oha. A decision may be accessed
by entering the case number in the search engine at www.oha.gov/search.htm.