PSH-15-0075

*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: September 29, 2015 )
_________________________________________ ) Case No.: PSH-15-0075
Issued: December 9, 2015
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Administrative Judge Decision
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Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXX X. XXX (hereinafter referred to as “the Individual”)
for access authorization under the Department of Energy’s (DOE) regulations set forth at 10 C.F.R.
Part 710, Subpart A, entitled, “Criteria and Procedures for Determining Eligibility for Access to
Classified Matter or Special Nuclear Material.”1 For the reasons set forth below, after carefully
considering the record before me in light of the relevant regulations and the Adjudicative
Guidelines, I conclude that the Individual’s security clearance should not be restored.2
I. BACKGROUND
During a background investigation of the Individual, a Local Security Office (LSO) obtained
information that raised security concerns. In order to address those concerns, the LSO obtained a
credit report and conducted a Personnel Security Interview (PSI) of the Individual on May 21,
2015. Because the credit report and the PSI did not resolve these concerns, the LSO began the
present administrative review proceeding by issuing a Notification Letter to the Individual
informing him that he was entitled to a hearing before an Administrative Judge in order to resolve
the substantial doubt regarding his eligibility for a security clearance. See 10 C.F.R. § 710.21.
The Individual requested a hearing and the LSO forwarded the Individual’s request to the OHA.
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 also be referred to in this Decision as
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.
2
The Director of OHA appointed me as the Administrative Judge in this matter on September 29,
2015.
At the hearing I convened pursuant to 10 C.F.R. § 710.25(e) and (g), I took testimony from the
Individual. See Transcript of Hearing, Case No. PSH-15-0075 (hereinafter cited as “Tr.”). The
LSO submitted 10 exhibits, marked as Exhibits 1 through 10. The Individual submitted one
exhibit, marked as Exhibit A.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
As indicated above, the Notification Letter informed the Individual that information in the
possession of the DOE created a substantial doubt concerning his eligibility for a security
clearance. That information pertains to paragraphs (f) and (l)3 of the criteria for eligibility for
access to classified matter or special nuclear material set forth at 10 C.F.R. § 710.8 (Criteria F and
L).
The LSO alleges, under Criterion F, that the Individual submitted a Questionnaire for National
Security Positions (QNSP), signed and dated on October 2, 2014, in which he stated that he did
not have any outstanding financial delinquencies, when in fact he was, at that time, behind in tax
payments to the federal and state governments, had two outstanding tax liens against him, was
subject to a wage garnishment, and was over 120 days delinquent on a debt. The LSO further
noted that the Individual had previously been warned about the importance of avoiding omissions
in his submissions to the LSO. “Conduct involving questionable judgment, lack of candor,
dishonesty, or unwillingness to comply with rules and regulations can raise questions about an
individual's reliability, trustworthiness and ability to protect classified information. Of special
interest is any failure to provide truthful and candid answers during the security clearance process
or any other failure to cooperate with the security clearance process.” Revised Adjudicative
Guidelines for Determining Eligibility for Access to Classified Information, issued on
December 29, 2005, (Adjudicative Guidelines) at ¶15.
The LSO alleges, under Criterion L, that the Individual has not filed his 2014 federal and state
taxes, is delinquent in paying his state taxes for tax years 2008 and 2009, and has incurred two tax
liens as a result. The LSO also alleges that the Individual has not made a payment on his residential
mortgage since December 2011, is $36,597 past due on that mortgage, and his debtor has begun
3 Criterion F refers to information indicating that the Individual: “Deliberately 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.” 10 C.F.R. § 710.8(f).
Criterion L refers to information indicating that the Individual has “engaged 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. Such conduct or circumstances include, but are
not limited to, criminal behavior, a pattern of financial irresponsibility, conflicting allegiances, or violation of any
commitment or promise upon which DOE previously relied to favorably resolve an issue of access authorization
eligibility.” 10 C.F.R. § 710.8(l).
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foreclosure proceedings against him. The LSO noted that the Individual had previously (in PSI’s
conducted on January 13, 2011, and February 8, 2010) provided it with assurances that he would
resolve his delinquent state taxes for 2008 and 2009.4
The Individual’s pattern of financial irresponsibility, as alleged, adequately justifies the LSO’s
invocation of Criterion L, and raises significant security concerns. The Adjudicative Guidelines
state in pertinent part:
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. An
individual who is financially overextended is at risk of having to engage in illegal
acts to generate funds . . . . Conditions that could raise a security concern and may
be disqualifying include: (a) inability or unwillingness to satisfy debts; (b) . . . the
absence of any evidence of willingness or intent to pay the debt or establish a
realistic plan to pay the debt; (c) a history of not meeting financial obligations; . . .
(d) deceptive or illegal financial practices such as . . . income tax evasion, . . . ; (e)
consistent spending beyond one's means, which may be indicated by excessive
indebtedness, significant negative cash flow, high debt-to-income ratio, and/or
other financial analysis: . . . and (g) failure to file annual Federal, state, or local
income tax returns as required or the fraudulent filing of the same.
Adjudicative Guidelines at ¶¶ 18, 19. The Adjudicative Guidelines are not inflexible rules of law.
Instead, recognizing the complexities of human nature, Administrative Judges apply the guidelines
in conjunction with the information available in the adjudicative process. The Administrative
Judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision.
III. REGULATORY STANDARDS
The Administrative Judge's role in this proceeding is to evaluate the evidence presented by the
agency and the Individual, and to render a decision based on that evidence. See 10 C.F.R.
§ 710.27(a). The regulations state that “[t]he decision as to access authorization is a
comprehensive, common sense judgment, made after consideration of all the relevant information,
favorable and unfavorable, as to whether the granting of access authorization would not endanger
the common defense and security and would be clearly consistent with the national interest.” 10
C.F.R. § 710.7(a). In rendering this opinion, I have considered the following factors: the nature,
extent, and seriousness of the conduct; the circumstances surrounding the conduct, including
knowledgeable participation; the frequency and recency of the conduct; the Individual's age and
maturity at the time of the conduct; the voluntariness of the Individual's 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. See 10 C.F.R. §§ 710.7(c),
4 The Notification Letter further alleges: “In a PSI conducted on May 21, 2015, he admitted that he has not told anyone
about his current financial situation, to include his girlfriend who is residing with him.” Ex. 1 at ¶ II.C. I find that the
Individual’s decision to avoid sharing his financial situation with his girlfriend does not raise any security concerns.
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710.27(a). The discussion below reflects my application of these factors to the testimony and
exhibits presented by both sides in this case.
IV. FINDINGS OF FACT
On December 13, 2010, the LSO propounded a Letter of Interrogatory (LOI) to the Individual, in
order to obtain information concerning his financial problems. Ex. 5 at 1. The LSO asked the
Individual: “Have you had any other serious financial difficulties within the last 10 years (i.e.
bankruptcies, legal judgments rendered against you, liens, wage garnishments, etc.)?” Ex. 5 at 3.
The Individual responded by stating: “I had a one-time garnishment last week which was corrected
based on the arrangement to pay my taxes.” Ex. 5 at 3.
On October 2, 2014, the Individual signed, dated, and submitted a QNSP to the LSO. The QNSP
asked him a number of questions involving his finances, including: “In the past seven (7) years
have you failed to file or pay Federal, state, or other taxes when required by law or ordinance?,”
“In the past seven (7) years, you had any possessions or property voluntarily or involuntarily
repossessed or foreclosed?,” “In the past seven (7) years, [have] you defaulted on any type of
loan?,” “In the past seven (7) years, [have] you had your wages, benefits, or assets garnished or
attached for any reason?”, and “[Are you] currently over 120 days delinquent on any debt?” Ex. 7
at 27-28. The Individual answered “no” to each of these questions. Ex. 7 at 27-28.
On October 8, 2014, the LSO obtained a credit report for the Individual which showed that the
Individual’s residential mortgage was $36,597 past due and in foreclosure status. Ex. 6 at 2. The
credit report further indicated that the Individual’s last payment on this account had occurred in
December 2011. Ex. 6 at 2.
On May 21, 2015, the LSO conducted a PSI of the Individual. During this PSI, the Individual
admitted that he had failed to pay his taxes when he was required to do so, and that he had omitted
that information from the October 2, 2014, QNSP. Ex. 8 at 62-63. The Individual stated that he
was too proud to admit his financial problems and that he believed he would have them resolved
before his investigation was completed. Ex. 8 at 63. The Individual further admitted that he had
liens placed against him. Ex. 8 at 64-65. The Individual originally denied that he had ever had his
wages garnished, but then when he was shown a copy of his answers to the December 2010 LOI,
he admitted that his wages had been garnished. Ex.8 at 64. The Individual admitted that he had
omitted information from the October 2, 2014, QNSP that his residential mortgage was $36,597
past due and in foreclosure status. Ex. 8 at 65. He blamed this omission, in part, on the person
who helped him complete his QNSP. Ex. 8 at 65-66. The Individual stated that he had reported
that past-due debt in a previous submission to the LSO. Ex. 8 at 66. When the Individual was
asked why he answered “no” when he was asked if he had any debts over 120 days delinquent, he
stated that he “totally misread the question.” Ex. 8 at 67. He denied that he had falsified, omitted,
or misrepresented any information he had provided to the DOE. Ex. 8 at 68. Finally, the Individual
stated that “I only have myself to blame.” Ex. 8 at 69.
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V. ANALYSIS
At the hearing, the Individual attempted to resolve or mitigate the security concerns about his
financial responsibility, judgment, reliability, and trustworthiness raised by the information set
forth in the summary of security concerns.
A. Criterion F
The record shows that the Individual omitted reporting any information on his October 2, 2014,
QNSP, that would have revealed that he was incurring financial difficulties. When he was
questioned about these multiple omissions, he provided inadequate and somewhat deceptive
explanations of his omissions. At the hearing, the Individual provided the following explanation
for his omissions:
Well, at the time I was working on all of it, and I wasn't deliberately trying to hide
anything. I was working on it, and I should have listed it. I was hoping to have
gotten it all taken care of by the time the investigation would have been complete.
Tr. at 11. The Adjudicative Guidelines specifically provide that the deliberate omission,
concealment, or falsification of relevant facts from a personnel security questionnaire can raise a
security concern that may be disqualifying. Adjudicative Guideline E at ¶ 16(a). Nevertheless,
the Adjudicative Guidelines also set forth six conditions which may mitigate security concerns
arising from the deliberate omission, concealment, or falsification of relevant facts from a
personnel security questionnaire, none of which are present in the instant case. See Adjudicative
Guideline E at ¶ 17. The Individual did not made any prompt attempts to correct his omissions,
the omissions did not result from improper or inadequate advice of authorized personnel or legal
counsel advising or instructing the Individual specifically concerning the security clearance
process, the omissions were not minor, or in the distant past, and the Individual has not shown that
such behavior is unlikely to recur. See Guideline E at ¶ 17.
Accordingly, I find that the Individual has not resolved the security concerns, raised under
Criterion F by his repeated and intentional failure to fully disclose his financial problems on his
October 2, 2014, PSI.
B. Criterion L
At the hearing, the Individual addressed his mortgage default by testifying that he has “been
actually doing a lot of research on it and tried to do a mortgage modification.” Tr. at 19. He
testified that he has been trying to get a mortgage modification for five years, but has run into
difficulties including some unscrupulous organizations that were trying to take advantage of him,
and that he has been struggling to get help with the modification process from a reputable source.
Tr. at 19-24. The Individual testified that he has caught up on all of his debts, except for his taxes
and mortgage. Tr. at 27. However, the Individual admitted that he does not have a budget, and
did not appear to have a firm grasp on his monthly expenses. Tr. at 30. The Individual could not
recall the amount he owed for his outstanding tax lien. Tr. at 35. He did testify that he has not
entered into a repayment plan for his outstanding tax lien. Tr. at 35. Moreover, despite the fact
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that the Individual has not made any payments on his current home since December 2011, he is
only putting $20 to $40 a month into his savings account. Tr. at 30-31. The Individual admitted
that he has not yet filed tax returns for tax years 2013 and 2014. Tr. at 35. The Individual explained
his failure to address these issues was partially due to his emotional state after the death of his
mother in 2009. Tr. at 39.
The record shows that the Individual has: a history of financial difficulties dating back to at least
2010; failed to pay his taxes in a timely manner; failed to file his federal and state tax returns for
tax year 2014;5 and had his present home foreclosed upon. With the exception of Exhibit A, which
shows that one of the two tax liens against the Individual has been lifted, the Individual has not
submitted any information showing that these issues have been resolved. Moreover, the
Individual’s testimony at the hearing shows that he has little insight into his financial problems,
and that he is uninformed about his specific financial circumstances, including his monthly cash-
flow. Most importantly, the Individual has not prepared a budget and has no workable plan to
correct his financial problems or to address his past due financial obligations.
Accordingly, I find that the Individual has not resolved the security concerns, raised under
Criterion L by his outstanding debts, failure to file his tax returns for tax year 2014, and dereliction
of tax responsibilities.6
VI. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Criteria F and L. After
considering all the evidence, both favorable and unfavorable, in a common sense manner, I find
that Individual has not sufficiently mitigated all of the Criteria F and L security concerns.
Accordingly, the Individual has not demonstrated that restoring his security clearance would not
endanger the common defense and would be clearly consistent with the national interest.
Therefore, the Individual’s security clearance should not be restored at this time. The Individual
may seek review of this Decision by an Appeal Panel under the procedures set forth at 10 C.F.R.
§ 710.28.
Steven L. Fine
Administrative Judge
Office of Hearings and Appeals
Date: December 9, 2015
5 Tr. at 33, 35.
6 The Adjudicative Guidelines set forth a number of conditions that could mitigate security concerns arising from an
individual’s financial difficulties. See Adjudicative Guideline F at ¶ 20. However, none of these conditions are present
in the instant case.