PSH-14-0102

*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: November 20, 2014 ) Case No. PSH-14-0102
)
_________________________________________ )
Issued: February 12, 2015
__________________________
Administrative Judge Decision
__________________________
Diane DeMoura, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX (“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
1979. DOE Exhibit (“Ex.”) 9. Throughout the course of his employment, the Individual’s
security clearance has been subject to routine reinvestigations. During his reinvestigations in
1996, 2003, and 2009, concerns arose regarding the Individual’s finances. See DOE Exs. 6-9. The
Individual’s security clearance was continued each time based on mitigating evidence that the
Individual provided to the Local Security Office (LSO) regarding the status of his finances, as well
as his stated intentions to resolve his delinquent accounts. Id. During the most recent
reinvestigation of the Individual’s security clearance, concerns again arose regarding the
Individual’s finances, as well as the accuracy of certain responses that he provided on an August
2013 Questionnaire for National Security Positions (QNSP). See DOE Exs. 10 (June 2014 Credit
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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Report), 12 (August 2013 Credit Report), 14 (August 2013 QNSP). As a result, the Local Security
Office (LSO) requested that the Individual participate in a June 2014 Personnel Security Interview
(PSI) in order to discuss those matters. DOE Ex. 15. In October 2014, the LSO informed the
Individual that there existed derogatory information that raised security concerns under 10 C.F.R.
§ 710.8 (f), (l) (Criteria F and L, respectively).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 his wife, his daughter, his sister-in-law, his brother-in-law, his employer and his supervisor
from his second job, and two individuals for whom he occasionally works as a handyman. In
addition, the Individual submitted eleven exhibits into the record (Indiv. Exs. A-K). The DOE
counsel presented no witnesses, and tendered eighteen exhibits (DOE Exs. 1-18). See Transcript
of Hearing, Case No. PSH-14-0102 (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).
2 Criterion F pertains to deliberate false statements or misrepresentations by an individual during the course of an
official inquiry regarding the individual’s eligibility for access authorization, including responses given during
personnel security interviews or on security questionnaires. 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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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
(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 Criteria F and L of the Part 710 regulations. DOE Ex. 1. As a basis for its Criteria
F and L concerns, the LSO cited information which called into question the Individual’s honesty,
reliability, and trustworthiness. The LSO cited as additional security concerns under Criterion L
information which raised doubts regarding the Individual’s 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 August 2013 QNSP.
Specifically, the LSO cited the Individual’s responses that, in the last seven years: (1) he had not
had a judgment entered against him, despite having had three judgments entered against him
within the past seven years; (2) he had not had a lien placed against his property for failing to pay
taxes or other debts, despite having had three liens placed against his property within the last
seven years; (3) he had not had any bills or debts turned over to a collection agency, despite
having had nine accounts turned over to a collection agency within the past seven years; (4) he had
not had his wages, benefits or assets garnished or attached for any reason, despite having had his
wages garnished for failure to pay a debt on four occasions within the last seven years; and (5) he
had not failed to file or pay any Federal, state or other taxes as required, despite having failed to
pay property taxes within the past seven years. Id. at 1, 3-6. 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 August
2013 QNSP, the LSO properly invoked Criteria F and 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 current delinquent debts, including collection accounts totaling
approximately $1300, a charged off account, totaling approximately $440; a civil judgment
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entered against the Individual in July 2008 totaling approximately $8000, and delinquent income
and property taxes totaling between $1600 and $2000; (2) three tax liens secured against the
Individual’s property for nonpayment of taxes – a Federal tax lien filed in 2011, a Federal tax lien
filed in 2012, and a state tax lien filed in 2012 – for approximately $35,000, $42,000, and $7300,
respectively; and (3) the Individual’s purported pattern of financial irresponsibility, which includes
wage garnishments, civil judgments, collection accounts, delinquent tax debts, and the reliance on
payday loans. Id. at 1-3. 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, ¶ 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 regarding the
Individual’s finances, 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).
A. Criteria F and L - The Individual’s Omissions on the August 2013 QNSP
The Individual did not dispute that he failed to list certain required information on the August
2013 QNSP, as set forth in the Notification Letter. However, he maintained that the omissions
were not deliberate attempts to conceal information from the DOE. Tr. at 169-70, 189-90. The
Individual explained that he attempted to complete the form accurately, but was unaware of many
of the delinquent accounts. Id. He acknowledged that his attempt to complete the form from
memory rather than obtaining a recent credit report prior to completing the form was “bad
judgment” on his part. Tr. at 170. However, he vehemently denied intentionally omitting required
information from the form. In support of the Individual’s testimony, all of the Individual’s
witnesses – people that he knows both personally and professionally – testified that the Individual
is an honest, reliable, and trustworthy person who is unlikely to falsify information. Tr. at 14-15,
72-73, 103-04, 111, 121, 129-30, 141, 154-55.
As indicated above, deliberate omissions, concealments, or falsifications of information call into
question an individual’s honesty, reliability, and trustworthiness, and raise security concerns.
Adjudicative Guidelines, Guideline E, ¶ 16(a). In this case, upon consideration of the hearing
testimony and the entire record of this proceeding, I find it unlikely that the Individual deliberately
attempted to conceal or withhold information. I base this finding not only on my own
observations of the Individual’s candor and demeanor at the hearing, but also on the extensive
testimony from other witnesses regarding the Individual’s honesty and character, as well as the
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fact that the Individual has been generally candid and forthright in providing information to the
DOE in the past. See, e.g., DOE Exs. 5, 14-17. For example, contrary to the allegation in the
Notification Letter that the Individual indicated on the August 2013 QNSP that “in the past seven
years, he had not failed to file or pay any Federal, state or other taxes as required,” he did disclose
in extensive detail on the form his previous failure to file and pay Federal and state income taxes,
inadvertently omitting only his delinquent property taxes. See DOE Ex. 14; Indiv. Ex. A.
Moreover, he established at the hearing that many of the delinquent accounts were the result of his
wife obtaining credit without his knowledge or her failing to follow through on certain obligations
that she had undertaken with respect to their finances. See § 4.B., infra. In addition, he did not
recall certain debts and believed others were resolved and therefore need not be listed. See, e.g.,
Tr. at 189; Indiv. Ex. A. The Individual’s omissions on the form appear to result from the
Individual’s genuine lack of awareness regarding the state of his finances at the time he completed
the QNSP, as well as his carelessness in ensuring that he had the information that he needed to
complete the form, rather than from any deliberate intent on the part of the Individual to deceive.
However, my findings regarding the Individual’s candor aside, the Individual’s omissions on the
QNSP also raise concerns regarding his reliability. Based on the evidence in the record, I
conclude that the Individual has presented sufficient information to resolve those concerns. The
Individual acknowledged that he exercised “bad judgment” in failing to ensure that he had the
information that he needed to accurately complete the form. He is now aware of the extent of his
delinquent accounts and other required information. He also recognizes the need to be more
careful in completing the QNSP in the future. Tr. at 169-70. In addition, as noted above, the
Individual has generally been reliable in providing information to the DOE in the past. Finally,
the Individual’s witnesses each testified that he is a reliable and responsible person. Therefore, I
find that to the extent that the Individual’s omissions on the August 2013 QNSP raised concerns
regarding his reliability, the conduct underlying those concerns was a lapse in otherwise reliable
behavior on the part of the Individual. Given that the Individual is now aware of the required
information at issue, I find that it highly unlikely that he will make similar errors in the future.
Based on the foregoing, I conclude that the behavior at issue with respect to the Individual’s
candor and reliability “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.
B. Criterion L – The Individual’s Purported Financial Irresponsibility
The Individual did not dispute any of the information cited in the Notification Letter regarding his
finances. According to the Individual, many of his delinquent debts and the issues with his taxes
were attributable to actions taken by his wife, from whom he is currently separated. Tr. at 178,
180-81, 186. The Individual stated that, throughout their marriage, his wife was responsible for
completing and filing their taxes. Tr. at 201. While she had generally filed their taxes
appropriately, she stopped doing so in 2006 or 2007 for reasons that remain unclear, and “that
made things pile up.” Tr. at 180, 202. The Individual stated that, in retrospect, he should not have
relied on his wife to ensure that their taxes were completed. Tr. at 186. In addition, his wife
“[ran] up a lot of bills” and the Individual “was trying to keep her happy and keep her bills up for
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her . . . .” Tr. at 178. To that end, the Individual sometimes obtained payday loans in order to
help his estranged wife pay bills. Id., Tr. at 201.
The Individual has since learned the extent of his debts, as well as the status of his taxes, and he
has been actively engaged in trying to resolve those matters. With respect to the delinquent
accounts, the Individual established at the hearing that the accounts have either been paid in full or
are on a repayment plan. Indiv. Exs. D-H, J, K; Tr. at 173-74, 184-86, 197. In addition, he has
been working with a tax preparer to help him sort out his tax returns from prior years and to repay
his delinquent taxes. The Individual’s outstanding balance on his Federal taxes is approximately
$60,000. Indiv. Ex. B. He is currently on a repayment plan that he expects will allow him to have
paid in full his delinquent Federal taxes in “a couple [of] years.” Tr. at 199; see also Indiv. Exs.
B, C. He is also on a repayment plan to satisfy his state tax debt and his delinquent property taxes.
Tr. at 185, 195-96; Indiv. Exs. D, H. The Individual understands the importance of resolving his
financial difficulties. In addition to his employment with the DOE contractor, he has a regular
part-time job and also occasionally works as a handyman. He uses any extra income from his
primary job, and all of his income from his other work, to pay down his debt. Tr. at 176. In
addition, he regularly withdraws the allowable amount from his retirement account to put toward
his debts. Tr. at 183. The Individual stated that he lives a very frugal lifestyle and that he has not
incurred any new debt. Tr. at 179, 192; see also Tr. at 19, 106, 114, 143-44, 159-60. He also no
longer takes out payday loans or gives his wife money to pay her bills, although he does help
maintain her residence. Tr. at 178, 198, 201. The Individual stated that his wife has also “learned
a hard and valuable lesson” and that she no longer spends money lavishly. Tr. at 181, 198. The
Individual acknowledged that he does not currently know the exact total of his outstanding debts
and does not currently have a budget. Tr. at 178, 191-92. However, he states that he is now “in
control” of his finances and is in the process of paying down his debts. Tr. at 181, 185. The
Individual believes that his financial situation is slowly improving and that he is “on the right
track now.” Tr. at 202.
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.
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. The evidence in the
record supports the Individual’s assertions that the underlying cause of his financial difficulties
can be attributed to actions taken by his wife. See, e.g., Tr. at 76-77, 106, 160. Nonetheless,
despite having been made aware of the DOE’s concerns regarding his finances during the
reinvestigations of his security clearance which took place in 1996, 2003, and 2009, the Individual
continued to enable his wife’s behavior with respect to their finances, taking little action to address
his financial situation. Recently, the Individual has become much more proactive with respect to
his finances. He has adopted a very frugal lifestyle, has repaid many of his outstanding debts, and
has entered into repayment agreements to resolve his tax debts. He also no longer takes out
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payday loans to pay his wife’s bills. These are all positive factors. However, the Individual is in
the very early stages of addressing his financial issues. He does not currently know the total of his
outstanding debts. He continues to have a sizeable tax debt which is in the early stages of
repayment. In addition, the status of his relationship with his estranged wife – including the extent
to which he financially supports her – remains uncertain. Finally, while it appears that the
Individual is able to satisfy his current monthly financial obligations, he has little margin for error.
With the exception of a retirement account, he appears to have no money in savings at this time.
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 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 presented adequate evidence to
fully resolve the Criteria F and L concerns regarding his candor. However, I further find that the
Individual has not presented sufficient information to fully resolve the Criterion L security
concerns pertaining to his financial irresponsibility. 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
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Date: February 12, 2015