PSH-18-0060

*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: August 2, 2018 ) Case No.: PSH-18-0060
)
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Issued: November 21, 2018
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Administrative Judge Decision
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Katie Quintana, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXX (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 National
Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information
or Eligibility to Hold a Sensitive Position (June 8, 2017) (Adjudicative Guidelines), I conclude that
the Individual’s access authorization should not be granted.
I. Background
The Individual is employed by a DOE contractor that requested a security clearance on his behalf.
In applying for his clearance, the Individual completed an Electronic Questionnaire for
Investigations Processing (e-QIP) in May 2015. Ex 7. In response to one of the financial questions,
the Individual stated that, in the last seven years, he had failed to “file or pay Federal, state, or other
taxes when required by law or ordinance.” Ex. 7 at 53. The Individual additionally acknowledged
that he was over 120 days delinquent on certain financial obligations. Id. at 55. Subsequently, the
Local Security Office (LSO) conducted a Personnel Security Interview (PSI) with the Individual
in December of 2017. Ex. 8. Due to unresolved security concerns, the LSO informed the Individual,
in a Notification Letter dated April 27, 2018 (Notification Letter), that it possessed reliable
information that created substantial doubt regarding his eligibility to hold a security clearance. In
an attachment to the Notification Letter, the LSO explained that the derogatory information raised
security concerns under Guideline E (Personal Conduct) and Guideline F (Financial
Considerations). Ex. 1.
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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Upon receipt of the Notification Letter, the Individual exercised his right under the Part 710
regulations by requesting an administrative review hearing. Ex. 2. The Director of the Office of
Hearings and Appeals (OHA) appointed me the Administrative Judge in the case, and I
subsequently conducted an administrative hearing in the matter. At the hearing, the DOE Counsel
submitted nine numbered exhibits (Exhibits 1–9) into the record. The Individual tendered three
exhibits (Exhibits A–C) and testified on his own behalf. The exhibits will be cited in this Decision
as “Ex.” followed by the appropriate alphabetical or numeric designation. The hearing transcript in
the case will be cited as “Tr.” followed by the relevant page number.
II. Regulatory Standard
A DOE administrative review proceeding under Part 710 requires me, as the Administrative Judge,
to issue a Decision that reflects my comprehensive, common-sense judgment, made after
consideration of all of 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). 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 (1988) (“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).
The Individual must come forward at the hearing with evidence 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). 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). Hence, an individual is afforded the utmost latitude in the presentation of evidence to
mitigate the security concerns at issue.
III. Notification Letter and Associated Concerns
As previously mentioned, the Notification Letter included a statement of derogatory information
that raised concerns about the Individual’s eligibility for access authorization. The information in
the letter specifically cites Guidelines E and F of the Adjudicative Guidelines. Guideline E concerns
“[c]onduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to
comply with rules or regulations.” Guideline E at ¶ 15. This conduct can call into question an
individual’s reliability, trustworthiness, and ability to protect classified or sensitive information.
Id. Among the conditions that could raise a disqualifying security concern is the “deliberate
omission, concealment, or falsification of relevant facts from any personnel security
questionnaire.” Id. at ¶ 16(a). In support of its reliance upon Guideline E, the LSO cited seventeen
instances in which the Individual failed to disclose on his e-QIP: (1) citations, received in the last
seven years, with a fine of at least $300, and (2) bills or debts turned over to collections agencies
in the past seven years. Ex. 1 at 1-2.
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Guideline F addresses one’s “[f]ailure to live within one's means, satisfy debts, and meet financial
obligations.” Guideline F at ¶ 18. It is well established that 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. Id. Among
the conditions set forth in that guideline that could raise a disqualifying security concern are the
inability to satisfy debts; a history of not meeting financial obligations; and failure to file or
fraudulently filing annual Federal, state, or local income tax returns or failure to pay annual Federal,
state, or local income tax as required. Guideline F at ¶ 19(a), (c), (f). In citing Guideline F, the LSO
relied upon the Individual admission during his PSI that that he had not filed Federal or state income
taxes for the years of 2013-2016. Ex. 1 at 3-4. It further cited that the Individual had twelve
collection accounts totaling $10,080.71. Id. at 4-5.
IV. Findings of Fact
I have carefully considered the totality of the record in reaching the findings of fact set forth below.
At the hearing, the Individual presented only his own testimony. He admitted that when he
completed the e-QIP, he failed to list four traffic related citations, received in the last seven years,
with fines over $300. Ex. 8 at 346-348; Tr. at 8-9. The Individual acknowledged that these fines
should have been listed on the e-QIP, but at the time he completed it, he believed that the “citations
were not finalized so…[he] didn’t know if it was a $300 fine or if they were being dismissed.” Ex.
8 at 346-348; Tr. at 8-9, 15. However, the Individual admitted that he did not rely on any official
documentation indicating that the fines would be less than $300; he solely relied on his “personal
assumption.” Tr. at 11. He elaborated stating that the omissions were not intentional. Id. at 13.
Turning to the thirteen collection accounts that the LSO alleged the Individual failed to list on his
e-QIP, the Individual acknowledged that all of the accounts were turned over to collection agencies
within seven years of his completion the e-QIP. See id. at 15. The Individual explained that he did
not list the accounts because he did not “have a clear understanding of [his] credit,” and due to a
divorce, he was not sure if he was responsible for the debts or if the debts were “valid.” Id. at 15-
16. The Individual further claimed that he was not fully aware of all of his debts because he was
not receiving mail at the appropriate address; however, he confirmed that he was “definitely not
stating that [he] had zero knowledge of any of those 13 accounts.” Id. at 18. He clarified that he
knew “there were potential debts out there that [he] had unpaid. [He] just didn’t have the exact
person that was owed and the amounts and…a complete record of that information.” Id. The
Individual acknowledged that he should have obtained a credit report prior to completing the e-
QIP. Id. at 18-19. The Individual stated that in hindsight he “guess[es]” the e-QIP is “far more
serious than [he]…took it,” and he affirmed that he was not trying to hide information or avoid
disclosing information. Id. at 20-21.
When confronted with the fact that he did not merely omit one or two collection accounts from the
e-QIP, but thirteen separate accounts, the Individual explained that there were circumstances
occurring in his personal life that he did not have control over; however, he acknowledged that his
failure to list these accounts, whether or not it was inadvertent, raises a serious reliability concern.
See id. at 23. When questioned about his reliability in light of his claims that he does not have an
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understanding of his financial situation and thousands of dollars of outstanding debts, the
Individual responded that he did not have “a clear answer.” Id. at 28-29.
During the hearing, the Individual was questioned regarding his failure to file four years of Federal
and state taxes. Id. at 30. He stated that he did not have a “direct answer” to the question, but
“guess[ed]” that some of the tax years had been “self-filed by IRS and [state].” Id. He clarified that
he had not personally filed his taxes for the tax years at issue in the Summary of Security Concerns
and reiterated that he did not “have a clear understanding” of his tax situation.2 Id. at 30-31. The
Individual testified that after filing for legal separation in 2012 and for divorce in 2013, he had
difficulty obtaining tax information from his ex-wife, and he was trying to gain an understanding
of his tax situation through divorce proceedings. Id. at 31-32. When asked why he did not file his
taxes separately, the Individual responded that there are “financial issues that are involved that are
more than the information” he had. Id. at 33.
The Individual believes that his current tax liability is around $30,000; however, he is not aware
whether the $30,000 is the outstanding tax liability for one tax year or for multiple years. Id. at 41-
42. He confirmed that he has had “some contact with the IRS” and has set up a payment plan that
was revoked, but he failed to provide any credible evidence of any contact with the IRS or his
efforts to create a payment plan. Id. at 31, 35. The Individual also stated that he could not provide
“accurate answers of each year and what is involved and what is still open.” Id. at 32.
With regard to the remaining security concerns of the twelve collection accounts listed on the
Summary of Security Concerns, the Individual stated that he had not paid any of the accounts. Id.
42-44. He explained that it is his understanding that most of the accounts are charge-offs, and he
has no method of resolving them. Id. at 44. The Individual asserted that two of the collection
accounts have not been charged off and remain open; however, an examination of Exhibit C
indicated that one of these accounts has in fact been charged off. Id. at 44; Ex. C at 20. With regard
to the remaining open account, the Individual testified that he did not “know the details of it,” but
he understands it to be his ex-wife’s debt. Id. at 44. He explained that he does not think it should
be his responsibility. Id. at 44-45. The Individual acknowledged that the fact that some of the
accounts were charged-off does not demonstrate that he paid the debts. Id. at 49. When asked if
these charged-off accounts indicated an inability or unwillingness to satisfy his debts, the
Individual replied, “yes.” Id. at 49.
V. Analysis
I have thoroughly considered the record of this proceeding, including the submissions tendered in
this case and the testimony of the Individual 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 has not sufficiently mitigated the security concerns noted by the
LSO with regard to Guidelines E and F. I cannot find that granting 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). Therefore, I have determined that the Individual’s security
2 For the tax years prior to 2014, the Individual made reference to having signed the necessary tax forms but alleges
that his ex-wife did not submit the tax forms to be filed. Tr. at 30-31.
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clearance should not be granted. The specific findings that I make in support of this decision are
discussed below.
As an initial matter, I note that legitimate security concerns exist as a result of the Individual’s
completed e-QIP, the PSI, and his financial situation.
A. Guideline E
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. See Guideline E at ¶ 15. Deliberately omitting, concealing, or falsifying
relevant facts from any personnel security questionnaire can disqualify an individual from holding
access authorization. Id. at ¶ 16(a). Under Guideline E, conditions that may mitigate security
concerns include that “the individual made prompt, good faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts,” or “the offense is so minor,
or so much time has passed, or the behavior is so infrequent, or it happened under such unique
circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability,
trustworthiness, or good judgment.” Id. at ¶ 17(a)(c).
Here, the Individual admitted that he failed to list his four traffic related citations and his thirteen
collection accounts. He further acknowledged that he should have disclosed all of the citations on
his e-QIP. With regard to the collection accounts, the Individual noted that he should have
examined a credit report prior to submitting his e-QIP, and his failure to list the accounts raises a
concern with regard to his reliability. The Individual has not submitted any evidence showing that
he made any effort to correct the omissions on his e-QIP. Contra id. at ¶ 17(a). In fact, at the time
of the hearing, the Individual was still unsure of the details of his citations, and he stated that he
did not obtain a credit report to examine his collection accounts until the day prior to the hearing.
See Tr. 11, 26. Further, given that the Individual omitted seventeen separate items from the e-QIP
and still is uncertain of his current financial situation, I cannot find that the offense was so minor,
so much time has passed, the behavior was so infrequent, or it happened under such unique
circumstances that it is unlikely to recur. See Guideline E at ¶ 17(c). I find that the Individual’s
judgment, reliability, and trustworthiness remains a concern, and as such, I find that the Individual
has not mitigated the security concerns under Guideline E.
B. Guideline F
An inability to satisfy one’s debts or an individual’s unwillingness to do so regardless of his or her
ability may raise a security concern that could serve as a disqualifier to receiving a security
clearance. Guideline F at ¶ 19(a)(b). Furthermore, a failure to file Federal or state income tax
returns or failure to pay Federal or state income tax may also serve as a disqualifier. Id. at ¶ 19(f).
An individual may be able to mitigate the security concerns by demonstrating that 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. Id. at ¶ 20(a). Additionally, an individual may be able to mitigate the security concerns
if the conditions that resulted in the financial problem were largely beyond the person’s control and
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the person acted responsibly under the circumstances. Id. at ¶ 20(b). Further, if an individual has
initiated and is adhering to a good-faith effort to repay overdue creditors, an individual may be able
to mitigate a security concern. Id. at ¶ 20(d).
The Individual readily acknowledged that he has not personally filed either Federal or state taxes
for the tax years at issue in the Summary of Security Concern. Id. at ¶ 19(f). Additionally, he stated
that he has not paid any of the twelve collection accounts listed on the Summary of Security
Concerns. Although it appears that the Individual’s financial situation may have been complicated
by his divorce, a situation largely beyond his control, he has failed to provide any credible evidence,
aside from his vague assertions, that he has made any efforts to resolve his tax situation. Further,
the Individual admitted that a charge-off indicated his inability or unwillingness to satisfy his debts.
See id. at ¶ 19(a)(b). As such, I cannot find that I cannot find that the Individual has acted
responsibly under the circumstances. See id. at ¶ 20(b).
For the foregoing reasons, I cannot find that the Individual has mitigated the DOE’s security
concerns under Guidelines E or F.
VI. CONCLUSION
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 have found that the Individual has not brought forth sufficient evidence to resolve
the security concern associated with Guidelines E and F. Accordingly, I have determined that the
Individual’s access authorization should not be granted.
The parties may seek review of this Decision by an Appeal Panel under the regulations set forth at
10 C.F.R. § 710.28.
Katie Quintana
Administrative Judge
Office of Hearings and Appeals