PSH-15-0087

*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: October 19, 2015 ) Case No.: PSH-15-0087
)
_________________________________________ )
Issued: January 7, 2016
______________________
Administrative Judge Decision
______________________
Richard A. Cronin, Jr., Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXX (hereinafter referred to as “the
Individual”) to hold an access authorization1 under the Department of Energy’s (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.” As discussed
below, after carefully considering the record before me in light of the relevant regulations and the
Adjudicative Guidelines, I have determined that the DOE should not restore the Individual’s
suspended access authorization at this time.
I. Background
The Individual is employed by a DOE contractor in a position that requires him to maintain a DOE
security clearance. In his January 30, 2014, Electronic Questionnaires for Investigations
Processing Form (January 2014 QIP), the Individual revealed that he had not filed nor paid federal
income tax for the years 2009 through 2012. Ex. 8 at 34-35 (Section 26). The local security office
(LSO) conducted an in-depth investigation and determined that the Individual had not filed federal
or state of residence (State) income tax returns for a number of years and had a number of
1 Access authorization is defined as “an administrative determination that an individual is eligible for access to
classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R. § 710.5(a). Such
authorization will be referred to variously in this Decision as access authorization or security clearance.
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delinquent accounts which had not been revealed in his January 2014 QIP. Additionally, the
Individual, when asked, in the January 2014 QIP, failed to reveal that he had a number of
delinquent credit accounts and wage garnishments. Ex. 8 at 37 (Section 26). During the LSO
investigation, the Individual also submitted an inaccurate written statement asserting that he had
entered into a payment agreement with the State regarding past due income taxes. The LSO
conducted a personnel security interview with the Individual in May 2014 (May 2014 PSI). On
September 24, 2015, the LSO informed the Individual that it had reliable information that created
a substantial doubt regarding his eligibility to hold a security clearance (Notification Letter). The
Notification Letter explained that that the derogatory information fell within the purview of two
potentially disqualifying criterion set forth in the security regulations at 10 C.F.R. § 710.8,
subsections f and l (Criteria F and L respectively).2
Upon his receipt of the Notification Letter, the Individual exercised his right under the Part 710
regulations to request an administrative review hearing, and I was appointed the Administrative
Judge in the case. The DOE submitted 12 Exhibits (Exs. 1-12) into the record for the hearing. At
the hearing, the Individual presented the testimony of a psychologist (Psychologist) and his
accountant (Accountant), along with 34 Exhibits (Ex. A-X and AA-JJ). See Transcript of Hearing,
Case No. PSH-15-0049 (“Tr.”).
II. Regulatory Standard
A. Individual’s Burden
A DOE administrative review proceeding under Part 710 is not a criminal matter, where the
government has the burden of proving the defendant guilty beyond a reasonable doubt. Rather, the
standard in this proceeding places the burden on the individual because it is designed to protect
national security interests. This is not an easy burden for the individual to sustain. The regulatory
standard implies that there is a presumption against granting or restoring a security clearance. See
Department of Navy v. Egan, 484 U.S. 518, 531 (1998) (“clearly consistent with the national
interest standard for granting security clearances indicates “that security determinations should err,
if they must, on the side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990),
cert. denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance).
2 Criterion F references information indicating that an individual “[d]eliberately misrepresented, falsified, or omitted
significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive (or National Security)
Positions, a personnel qualifications statement, a personnel security interview, written or oral statements made in
response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access
authorization. . . .” 10 C.F.R. § 710.8(f). Criterion L relates to information that a person suffers from “[a]n illness or
mental condition of a nature which, in the opinion of a psychiatrist or licensed clinical psychologist, causes or may
cause a significant defect in judgment or reliability.” 10 C.F.R. § 710.8(h). The Notification Letter also cited concerns
under Guidelines E and F as described in 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).
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The individual must come forward with evidence to convince the DOE that restoring his access
authorization “will not endanger the common defense and security and will be clearly consistent
with the national interest.” 10 C.F.R. § 710.27(d). The individual is afforded a full opportunity to
present evidence supporting his eligibility for an access authorization. The Part 710 regulations
are drafted so as to permit the introduction of a very broad range of evidence at personnel security
hearings. Even appropriate hearsay evidence may be admitted. 10 C.F.R. § 710.26(h). Thus, an
individual is afforded the utmost latitude in the presentation of evidence to mitigate the security
concerns at issue.
B. Basis for the Administrative Judge’s Decision
In personnel security cases arising under Part 710, it is my role as the Administrative Judge to
issue a decision that reflects my comprehensive, common-sense judgment, made after
consideration of all the relevant evidence, favorable and unfavorable, as to whether the granting
or continuation of a person’s access authorization will not endanger the common defense and
security and is clearly consistent with the national interest. 10 C.F.R. § 710.7(a). I am instructed
by the regulations to resolve any doubt as to a person’s access authorization eligibility in favor of
the national security. Id. In considering these factors, the Administrative Judge also consults
adjudicative guidelines that set forth a more comprehensive listing of relevant factors and
considerations. See Adjudicative Guidelines.
III. The Notification Letter and the Security Concerns at Issue
As previously noted, the LSO cites two criteria as the basis for suspending the Individual’s security
clearance, Criteria F and L. It is well established that conduct involving lack of candor or
dishonesty can raise questions about an individual's trustworthiness 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.
Adjudicative Guidelines, Guideline E, at ¶ 15.
With respect to Criterion F, the LSO cited the Individual’s failure in the January 2014 QIP to
disclose his history of wage garnishments and delinquent accounts. Given the discrepancy between
the Individual’s answers in the January 2014 QIP and his actual credit history, I find that the LSO
had adequate information to support its involving Criterion F in the Notification Letter.
As for the Criterion L derogatory information, conduct involving questionable judgment, 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 ¶ 15. Further, 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. Adjudicative
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Guidelines, Guideline F, at ¶ 18. The record before me demonstrates that the individual has
problems in meeting his financial obligations and has provided inaccurate information to the LSO,
thus justifying the LSO’s invocation of Criterion L in the Notification Letter.
IV. Findings of Fact
The Individual testified that his financial problems began in 2007 after his divorce. Tr. at 32. After
paying child support, the Individual had difficulty in paying all of his expenses. Id. The Individual
believed that if he increased his income tax exemptions he would have extra money in his paycheck
to pay his bills.3 Tr. at 33, 41. However, when his 2009 federal and State taxes became due, the
Individual believed that he would not be able to pay his tax liability for 2009 and decided not to
file his 2009 returns. Tr. at 42. The Individual continued with his plan to receive extra money in
his paycheck by claiming increased deductions through 2013. Tr. at 33, 40-41. The Individual
stated that he did not file tax returns for the years 2009-2013 until the spring of 2014.4 Tr. at 40.
The Individual persisted in his plan despite the fact he was aware that any unpaid taxes would
accrue interest and penalties. Tr. at 42-43. In 2014, the Individual testified that he filed for and
was granted a Chapter 7 bankruptcy. Tr. at 35-36. Despite the Individual’s financial problems, he
continued to and is currently making payments for a Recreational Vehicle (RV) and an All-Terrain
Vehicle (ATV) at an approximate interest rate of 25 percent. Tr. at 45-46.
The Individual estimated that he owes approximately $35,000 to the Internal Revenue Service
(IRS) and $12,000 to the State for past due income taxes. Tr. at 36. Currently, the Individual has
two small credit accounts, obtained after his 2014 bankruptcy, which he is paying off. Tr. at 48-
49. However, until he can obtain an exact total for his tax delinquencies, he is unable to craft a
financial plan to satisfy these debts. Tr. at 58.
The Individual acknowledged that in April 2015, he supplied the LSO with a written statement
indicating that that he had entered into a payment plan with the State to repay his back taxes. In
the statement he wrote “I have made a payment agreement,” and “this is in reference to . . . State
delinquent tax debt,” and “[I] will pay them $10,200 on April 30th, 2015, and will make six
monthly payments of $200 for the last $1200.” Tr. at 54; Ex. 3 at 1. The Individual admitted that
he had made no payments to the State according to the agreement he described and that the
agreement was “nothing official.” Tr. at 54. The Individual stated that he did not make the $10,200
payment because he wanted to refinance his truck, and he did not inform LSO of that fact. Tr. at
54. Nonetheless, the Individual testified that he has made some voluntary tax payments to the
State. Tr. at 55; see Ex. GG.
3 The Individual planned to catch up his debts by paying a larger income tax assessment at the end of the year.
4 The Individual’s Accountant has filed amended tax returns for 2012, 2013, and 2014 based upon the initial tax
preparer’s error in determining whether the Individual could claim one of his children for tax purposes. See infra; Tr.
at 13-14, 16, 51.
5
As for the errant answers provided in the January 2015 QIP, the Individual testified that he had
problems with the QIP software. Tr. at 60. Specifically, the QIP program would encounter
technical problems and the Individual would then have to reenter his information. Tr. at 60.
Additionally, the Individual did not have all of his credit information available regarding his past
due and delinquent accounts. Tr. at 60-61. Despite these problems, the Individual acknowledged
certifying the accuracy of his January 2014 QIP. Tr. at 62. The Individual also testified that he did
not notify the LSO when he discovered that he had not correctly reported his past due and
delinquent accounts. Tr. at 62. The Individual also acknowledged that he did not notify the LSO
of his 2014 bankruptcy until April 2015. Tr. at 63.
The Individual testified that he believes he will be able to better manage and keep track of his
financial affairs. The Individual has a monthly budget that he mentally uses. Tr. at 67. He has
visited with his bank so that various expenses can be taken from his bank account directly and thus
reduce to temptation for discretionary spending. Tr. at 68. The Individual testified that he has been
examined by his Psychologist and has been found to suffer from Attention Deficit Hyperactivity
Disorder (ADHD). Tr. at 56. He believes that with treatment from his Psychologist for this disorder
he will be able to create a financial plan and stick to it. Tr. at 69.
The Individual’s Accountant testified that he examined the tax returns for 2009 through 2014 that
were prepared by the Individual’s initial tax preparer. Tr. at 13. Because the Accountant found
errors in the initially filed tax returns, he has filed amended tax returns for 2012, 2013 and 2014.
Tr. at 14, 16. The errors stem from the initial tax preparer failing to add the Individual’s children
as dependents for tax purposes. Tr. at 16. The Accountant believes that if the Individual increased
the sum withheld from his taxes and entered into installment agreements with the IRS and the
State, his tax liabilities could be repaid. Tr. at 17-18. Additionally, some of the Individual’s tax
liability might be subject to reduction as a part of negotiating a plan to resolve these debts. Tr. at
26-27.
After the hearing, the Individual submitted statements from his Accountant estimating his current
tax liability for the period 2009 to 2014 as totaling $19,308 to the IRS and $7,292 to the State. Ex.
II and JJ. These totals do not include extra sums reflecting interest and penalties. Ex. II and JJ.
The Individual’s Psychologist testified that he examined the Individual and determined that the
Individual suffered from a mild form of ADHD. Tr. at 83-84. While the Individual declined to
consider medication for the treatment of his ADHD, the Psychologist stated that the Individual
was willing to undergo brief psychotherapy (8-10 sessions) to manage his ADHD. Tr. at 84-85. In
the case of the Individual, who has a mild form of ADHD, the Psychologist stated that brief
psychotherapy would be an appropriate therapy. Tr. at 84. As of the date of the hearing, the
Psychologist had not been able to schedule any psychotherapy sessions due to the Individual’s
travel schedule. Tr. at 84. With treatment, the Individual’s ADHD could be reduced where his
symptoms would not be significant. Tr. at 85.
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The Psychologist testified that the Individual’s ADHD could be a factor in the Individual not
meeting his legal and financial obligations for the prior six years. Tr. at 86-87. Sufferers of ADHD,
the Psychologist opined, might demonstrate behaviors such as being chronically late on bills or
going slightly over the speed limit. Tr. at 87. In his experience, people with mild ADHD often
have financial problems similar to the Individual. Tr. at 87. However, the Psychologist opined that
ADHD sufferers do not typically have major problems with the legal system. Tr. at 87. The
Psychologist declined to offer an opinion as to the effect of ADHD on the Individual’s judgment
but stated that ADHD may, in general, affect judgment. Tr. at 89.
V. Analysis
I have thoroughly considered the record of this proceeding, including the submissions tendered in
this case and the testimony of the witnesses presented at the hearing. In resolving the question of
the Individual’s eligibility for access authorization, I have been guided by the applicable factors
prescribed in 10 C.F.R. § 710.7(c) and the Adjudicative Guidelines. After due deliberation, I have
determined that the Individual’s DOE security clearance should not be restored. I cannot find that
restoring the Individual’s DOE security clearance will not endanger the common defense and
security and is clearly consistent with the national interest. 10 C.F.R. § 710.27(a). The specific
findings that I make in support of this decision are discussed below.
A. Criterion F
The Criterion F concerns center on the Individual answering “No” to questions on the January
2014 QIP concerning whether, in the prior seven years, he had defaulted on a loan, had debts
turned over to a collection agency, had an credit account or card suspended, had his wages
garnished or had or was currently more than 120 days delinquent on any credit account. Ex. 8 at
37 (Section 26). The Individual does not dispute that his answers to these questions were incorrect.
Tr. at 80; see Tr. at 59-60 (admission that the Individual failed to disclose a number of delinquent
and collection accounts); Ex. 3 at 29 (2014 Bankruptcy petition indicating 8 credit accounts in
collection status).
In mitigation, the Individual has claimed that computer program errors or his ADHD were
responsible for these misrepresentations. I have examined the medical records that the Individual
submitted along with the testimony of the Psychologist. See Ex. CC. I find that it is likely the
Individual suffers from a mild case of ADHD. While this might explain the Individual’s error in
answering “No” regarding his financial history of delinquent accounts, I must conclude that this
factor alone does not constitute sufficient evidence to mitigate the Criterion F information
contained in the Notification Letter. My conclusion is supported by the Individual’s April 2015
statement to the LSO stating that he had entered into a payment plan with the State to resolve his
tax debt. This statement was patently untrue and cannot be explained as a lack of attention to detail
an ADHD sufferer might experience. The April 2015 statement represents a deliberate
misrepresentation or at least a very careless approach to the need to provide accurate information.
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Even if I were to conclude that the Individual’s ADHD was responsible for his misrepresentations,
at the time of the hearing, the Individual had not begun treatment. In sum, the Individual has not
presented sufficient evidence to resolve the Criterion F concerns raised by the derogatory
information in the Notification Letter.
B. Criterion L
The Criterion L concerns arise from the Individual’s history of financial irresponsibility and his
judgment, lack of candor, and unwillingness to comply with rules and regulations.
1. Financial Irresponsibility
The Individual’s history of financial problems are highlighted by his history of delinquent accounts
and accounts placed into collection. The record indicates that at the time of his 2014 bankruptcy
petition, the Individual had eight credit accounts that were in collection. Ex. 3 at 29. Further, the
Individual failed to file federal and State income tax returns because he did not have sufficient
funds to pay the expected tax debts. The Individual’s failure demonstrates an inability to manage
his finances and a lack of judgment. The record indicates also that the Individual purchased an RV
in 2010 for $10,000 despite having significant debt problems at the time. Ex. 7 at 15. The
Individual’s history of financial irresponsibility is of long duration. In addition to his April 2014
Bankruptcy, the Individual filed for bankruptcy in 1996. Ex. 7 at 19.
The Individual has presented evidence that after his April 2014 bankruptcy he has tried to conduct
his financial affairs with increased responsibility. A review of the Individual’s most recent credit
reports indicates that he has only two credit accounts open and both are current. Ex. CC at 5.
Further, the Individual has made two voluntary tax payments to the State in 2015. Ex. GG. While
treatment for his ADHD may help him be more diligent in promptly attending to his financial
affairs, as of the date of the hearing, he has not begun treatment. Further, the Individual has
significant tax liabilities before him totaling $26,000 (not including interest and penalties) for
which there is no current repayment plan.5
Given the relatively short time the Individual has tried to resolve his financial problems and the
length of time the Individual has struggled with his finances, I cannot find that the Criterion L
concerns arising from his history of financial problems have been resolved. See e.g., Personnel
Security Hearing, Case No. PSH-15-0044 (2015) (an individual who has been financially
irresponsible 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). Further, my
review of the Adjudicative Guidelines finds that none of the mitigating factors are applicable in
this case. Adjudicative Guidelines, Guideline F, ¶ 20.
5 The Individual testified that the IRS cannot determine the exact amount until it determines whether he properly
included his children as deductions. Tr. at 73-74.
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2. Judgment, Lack of Candor, and Unwillingness to Comply with Rules and
Regulations
The Individual’s failure to timely file income taxes during the period 2009 to 2014 is a significant
failure to meet his basic legal responsibilities as a citizen. This deliberate decision cannot be
mitigated by his relatively recent filing of these tax returns. The Individual has demonstrated a
sustained significant lack of judgment regarding his decisions which have resulted in his
significant history of delinquent credit accounts as discussed above. The Individual’s decision to
purchase the RV in 2010 for $10,000 while experiencing credit problems is an example of this
lack of judgment. The Individual’s April 2015 communication to the LSO stating that he had
already entered into a repayment plan with the State was patently untrue and demonstrates a lack
of candor with the LSO as well as poor judgment.
The fact that the Individual suffers from a mild cases of ADHD provided no mitigation for the
significant evidence in the record regarding the Individual’s lack of judgment, candor and
unwillingness to comply with rules. The Psychologist testified that ADHD would not affect an
individual’s ability to make choices with regard to “right vs. wrong.” Tr. at 92. He went on to
opine that individuals with ADHD are most likely to make “little lapses” that may produce legal
concerns. Tr. at 93. While the Individual has presented evidence regarding his attempts to be more
financially responsible and to be in compliance with income tax legal requirements, these
relatively recent efforts do not, at this time, outweigh the significant Criterion L derogatory
information available in the record.
I have also considered the mitigating factors listed in the Adjudicatory Guidelines regarding such
conduct. Arguably, mitigating factor (d), “the individual has acknowledged the behavior and
obtained counseling to change the behavior or taken other positive steps to alleviate the stressors,
circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate behavior,
and such behavior is unlikely to recur,” might apply to the Individual. Adjudicative Guidelines,
Guideline E, at ¶ 17(d). However, the Individual had not yet begun counselling as of the time of
the hearing. Further, it is uncertain whether counselling for ADHD would affect the Individual’s
willingness to be truthful or improve his reliability or trustworthiness. In any event, even if I
credited the Individual with this mitigating factor, it would not outweigh the Individual’s extensive
history of lack of judgment, failure to comply with laws or failure to be candid. Consequently, I
find that the Individual has not resolved the Criterion L derogatory information contained in the
Notification Letter.
VI. 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
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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 the cited security concerns. Therefore, I cannot conclude that restoring the Individual’s
suspended DOE access authorization “will not endanger the common defense and 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.
Richard A. Cronin, Jr.
Administrative Judge
Official of Hearings and Appeals
Date: January 7, 2016