PSH-16-0081

*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 )
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Filing Date: October 21, 2016 ) Case No.: PSH-16-0081
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Issued: January 9, 2017
Administrative Judge Decision
Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXX XXXX XXXXX (“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, I conclude that the
Individual’s access authorization should be restored at this time.
I. Background
The Individual is employed by a DOE contractor in a position that requires him to hold a DOE
security clearance. The Local Security Office (LSO) received potentially derogatory information
regarding the Individual’s indebtedness and failure to file and pay federal income taxes. In order
to address those concerns, the LSO summoned the Individual for an interview with a personal
security specialist in July 2016.
On September 27, 2016, the LSO sent a letter (Notification Letter) to the Individual advising him
that it possessed reliable information that created a substantial doubt regarding his eligibility to
hold a security clearance. See 10 C.F.R. § 710.21. In the Notification Letter, the LSO explained
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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that the derogatory information fell within the purview of one potentially disqualifying criterion
set forth in the security regulations at 10 C.F.R. § 710.8(l) (hereinafter referred to as Criterion L).2
After receipt of the Notification Letter, the Individual exercised his right under the Part 710
regulations to request an administrative review hearing. The LSO forwarded this request to the
Office of Hearings and Appeals (OHA), and the OHA Director appointed me as the Administrative
Judge. At a hearing convened pursuant to 10 C.F.R. § 710.25 (e) and (g), the DOE introduced
thirteen exhibits (DOE Exs. 1-13) into the record. The Individual presented his own testimony
and the testimony of his mother and one co-worker. The Individual also submitted three exhibits
(Ind. Exs. A-C). See Transcript of Hearing, Case No. PSH-16-0072 (Tr.).
II. Regulatory Standard
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710
dictates that, in these proceedings, an Administrative Judge must undertake a careful review of all
of the relevant facts and circumstances, and make a “common-sense judgment . . . after
consideration of all relevant information.” 10 C.F.R. § 710.7(a). I must therefore consider all
information, favorable and unfavorable, that has a bearing on the question of whether granting or
restoring a security clearance would compromise national security concerns. Specifically, the
regulations compel me to consider the nature, extent, and seriousness of the Individual’s conduct;
the circumstances surrounding the conduct; the frequency and recency of the conduct; the age and
maturity of the Individual at the time of the conduct; the absence or presence of rehabilitation or
reformation and other pertinent behavioral changes; the likelihood of continuation or recurrence
of the conduct; and any other relevant and material factors. 10 C.F.R. § 710.7(c).
A DOE administrative proceeding under 10 C.F.R. Part 710 is “for the purpose of affording the
individual an opportunity of supporting his [or her] eligibility for access authorization.” 10 C.F.R.
§ 710.21(b)(6). Once the DOE has made a showing of derogatory information raising security
concerns, the burden is on the Individual to produce evidence sufficient to convince the DOE that
granting or restoring 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). This standard implies
that there is a presumption against granting or restoring a security clearance. The regulations
further instruct me to resolve any doubts concerning the Individual’s eligibility for access
authorization in favor of the national security. 10 C.F.R. § 710.7(a); see also Dep’t of the Navy v.
Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with the national interest” standard indicates
“that security determinations should err, if they must, on the side of denials”).
III. Notification Letter and Associated Security Concerns
As previously noted, the LSO cites Criterion L as the basis for suspending the Individual’s security
clearance. The Criterion L derogatory information that the LSO relies upon is (1) the Individual’s
2 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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outstanding delinquent debts in the amount of $3,730, (2) the Individual’s acknowledgement in a
2010 Letter of Interrogatory and a 2012 PSI of the outstanding delinquent debts, and (3) the
Individual’s admission in a July 2016 PSI that he had not filed his 2013, 2014, and 2015 federal
income tax returns. DOE Ex. 1; see DOE Ex. 10; DOE Ex. 11 at 72, 76-79, 81-83, 87, 89; DOE
Ex. 12 at 115. 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, all of which can raise questions about an individual’s reliability, trustworthiness,
and ability to protect classified information. Revised Adjudicative Guidelines for Determining
Eligibility for Access to Classified Information, The White House (December 19, 2005), Guideline
F, at ¶ 18 (Adjudicative Guidelines).
IV. Hearing Testimony and Evidence
The Individual does not dispute the accuracy of the information cited in the Notification Letter.
In 2010 and 2012, the Individual acknowledged the existence of outstanding delinquent
indebtedness and told the LSO that he would pay that indebtedness. DOE Ex. 12 at 115; DOE Ex.
13. A July 2016 credit report revealed that the Individual continued to have a number of
outstanding debts, including collection accounts totaling $2,677, a charge-off account of $771, and
a past due account of $282. Id. In addition, as of July 2016, the Individual had not filed his 2013,
2014, or 2015 federal tax returns. DOE Ex. 1 at 2.
At the hearing, the Individual attributed the outstanding indebtedness to his ex-wife’s medical
issues and related addiction to pain medication. The Individual and his mother both testified that
during their marriage the Individual and his ex-wife were able to manage their finances until her
medical issues surfaced and she developed an addiction to pain medication. Tr. at 11, 23-25. The
Individual testified that his ex-wife was responsible for paying their bills, often hiding mail from
him, which is why he would not realize that bills had not been paid until the electricity was shut
off. Tr. at 25. When he suggested that he begin paying the bills, she would get upset, and he
would let it go to keep the peace. Tr. at 25. He testified that before he knew it, they were behind
on all their bills. Tr. at 25. She filed for divorce in 2009, but they worked through it and got back
together. Tr. at 26. She filed for divorce again in 2013 and they completed the divorce in 2014.
Tr. at 26.
The Individual attributed his failure to file his 2013, 2014, and 2015 tax returns to issues related
to his divorce. The Individual and his mother testified that he did not file his taxes for 2013, 2014,
and 2015, because he was confused as to how to file in light of the divorce and how to claim their
children. Tr. at 12, 33. His former wife filed separately, taking the children as exemptions, and
received a hefty refund, although he was paying child support and thought that the exemptions for
the children should have been divided between them. Tr. at 12, 29-30, 40-41. The Individual
testified that the divorce took a toll on him, attributing his failure to file taxes to his not thinking
straight for a while. Tr. at 33.
At the hearing, the Individual testified that he paid his delinquent debts and filed his tax returns
for the years in question and paid the taxes due. He submitted a credit report dated November 28,
2016, which shows no overdue accounts. Ind. Exs. A, B, C. Further, the credit reports show only
two debts, his home mortgage and his vehicle. Ind. Exs. A, B, C. The Individual and his mother
both testified that the Individual filed his income tax returns and paid all the taxes due. Tr. at 14,
30-31. The record shows that the Individual filed his 2013, 2014, and 2015 taxes on September 1,
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2016, before receiving the Notification Letter. DOE Ex. 2. He is presently waiting to hear from
the Internal Revenue Service (IRS) regarding what penalty and interest he may owe. Tr. at 30.
The Individual sought to establish that his delinquent debts and failure to file tax returns were
isolated situations related to his prior marriage and divorce. He testified that his prior indebtedness
did not result from extravagance or a failure to live within his means. Ex. 11 at 94-95. This
statement was corroborated by his co-worker, who testified that he never saw any unexplainable
or excessive expenditures. Tr. at 18. The co-worker also corroborated the Individual’s description
of the difficulties during the divorce, stating that the Individual would tell his supervisors that he
could not do a particular job, when he believed that he could not concentrate to the degree needed
to complete the job. Tr. at 20. He further testified that the Individual stringently follows all rules
and is a responsible individual. Tr. at 19.
V. Administrative Judge’s Findings and 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 access authorization should be restored. I 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.
As an initial matter, I find that the LSO properly identified security concerns under Criterion L,
regarding the Individual’s history of delinquent debts and failure to file his federal income tax
returns for several years. A 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. Adjudicative Guidelines, ¶ 18.
Conditions which may raise a security concern would be (1) the inability or unwillingness to satisfy
debts and (2) failure to file annual Federal income tax returns. Adjudicative Guidelines, ¶ 19 (a),
(g).
In considering whether the Individual has resolved the properly raised security concerns, I must
look to the Adjudicative Guidelines in evaluating the evidence before me. The relevant paragraph
lists conditions that could mitigate the Criterion L security concern, including:
(a) the behavior happened so long ago, was so infrequent, or occurred under such
circumstances that it is unlikely to recur and does not cast doubt on the individual’s
current reliability, trustworthiness, or good judgment;
(c) the person has received or is receiving counseling for the problem and/or there
are clear indications that the problem is being resolved or is under control;
(d) the individual initiated a good-faith effort to repay overdue creditors or
otherwise resolve debts.
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Adjudicative Guidelines, ¶ 20 (a), (c)-(d). Given the above factors, I find that the Individual has
resolved the security concerns raised by the LSO.
With respect to the Criterion L concern regarding the Individual’s unpaid debts, I find that the
indebtedness and delinquencies were isolated instances attributable to his prior marriage. The fact
that the Individual has since divorced means that the circumstances from which the indebtedness
and delinquencies arose no longer exist. Further, the fact that the Individual has eliminated the
delinquencies resolves the concerns about his indebtedness. Likewise, the Individual has
established that his failure to file his Federal tax returns was an isolated lapse in judgement. The
Individual has now filed those returns, paid the taxes due, and is committed to paying any interest
and penalties once he is advised of the amount. The fact that the Individual resolved these issues
prior to the issuance of the Notification Letter is consistent with the testimony of his co-worker
that he is a responsible individual. Given the circumstances surrounding the issues raised in the
Notification Letter, the Individual’s successful resolution of those issues, and the other testimony
at the hearing concerning his honesty and reliability, I find that he has satisfied paragraphs 20 (a),
(c), and (d), above.
Based on the foregoing, I find that he has resolved the concern raised by his outstanding debts and
his failure to pay his 2013, 2014, and 2015 Federal taxes.
VI. Conclusion
In the above analysis, I have found that there was derogatory information in the possession of the
DOE that was sufficient to raise serious security concerns under Criterion L. After considering all
the relevant information, favorable and unfavorable, in a comprehensive common-sense manner,
including weighing all the testimony and other evidence presented at the hearing, I have found that
the Individual has brought forth sufficient evidence to resolve the security concerns associated
those criteria. I therefore find that restoring the Individual’s access authorization will not endanger
the common defense and is clearly consistent with the national interest. Accordingly, I have
determined that the Individual’s access authorization should be restored. The parties may seek
review of this Decision by an Appeal Panel under the regulations set forth at 10 C.F.R. § 710.28.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals
Date: January 9, 2017