PSH-19-0013

*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: March 7, 2019 ) Case No.: PSH-19-0013
)
_________________________________________ )
Issued: May 29, 2019
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Administrative Judge Decision
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James P. Thompson III, Administrative Judge:
This Decision concerns the eligibility of XXXXXX (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, entitled “Procedures for Determining Eligibility for Access to Classified Matter or Special
Nuclear Material.”1 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) (the “Adjudicative Guidelines”), I conclude that the Individual’s access authorization should
not be restored.
I. BACKGROUND
On February 11, 2019, the Local Security Office (LSO) sent a letter (“Notification Letter”) to the
Individual advising her that it had reliable information that created a substantial doubt regarding
her eligibility for access authorization. See 10 C.F.R. § 710.21. In the attachment to the Notification
Letter, the LSO explained that the derogatory information fell within the purview of Guidelines E
and F of the Adjudicative Guidelines.
Upon receipt of the Notification Letter, the Individual exercised her right under the Part 710
regulations to request an administrative review hearing. The Director of OHA appointed me as the
Administrative Judge in this matter. At the hearing, the Individual presented the testimony of one
witness and testified on her own behalf. The LSO submitted fourteen exhibits (Exs. 1-14) and the
Individual submitted fifteen exhibits (Exs. A-O) into the record of this proceeding.2 The hearing
transcript will be cited as “Tr.” followed by the relevant page number.
1 Under the regulations, “[a]ccess authorization means 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 also be referred to in this Decision as a security clearance.
2 The Individual submitted Exhibit O after the hearing concluded.
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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 her eligibility for a security
clearance. That information pertains to Guidelines E and F of the Adjudicative Guidelines.
The LSO alleges that the Individual provided false and misleading information on a 2001 Financial
Questionnaire, during a 2001 Personnel Security Interview (2001 PSI), and on a 2016
Questionnaire for National Security Positions (2016 QNSP). Ex. 2. Under Guideline E, “[c]onduct
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 or sensitive information.” Adjudicative Guidelines at ¶ 15. A concern may be
raised by “[d]eliberate omission, concealment, or falsification of relevant facts from any personnel
security questionnaire, personal history statement, or similar form used to conduct investigations
. . . [or] determine national security eligibility or trustworthiness . . . .” Id. at ¶ 15(a). Furthermore,
a concern may be raised by “[d]eliberately providing false or misleading information; or concealing
or omitting information, concerning relevant facts to an . . . investigator [or][] security official . . .
involved in making a recommendation relevant to a national security eligibility determination . . . .”
Id. at ¶ 15(b). The Individual’s alleged omission of relevant information and submission of false
and misleading information presents a concern under Guideline E.
The LSO also alleges that the Individual has a history of bankruptcies, foreclosures, and inability
to satisfy her financial obligations. Under Guideline F, “[f]ailure 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 or sensitive information.”
Id. at ¶ 18. Concerning conditions include an “inability to satisfy debts . . . [or] a history of not
meeting financial obligations. . . .” Id. at ¶ 19(a), (c). Accordingly, the Individual’s history of
financial difficulties presents a concern under Guideline F.
III. REGULATORY STANDARDS
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).
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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 the individual’s 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.
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
At the hearing, the Individual provided context for her past conduct and testimony regarding her
present circumstances and future intent.
First, a member of the Individual’s church’s leadership testified on the Individual’s behalf. The
witness testified that the Individual has been entrusted with possession of the church’s bank card
and the ability to make purchases for the church. Tr. at 19-20. The Individual is also entrusted with
the ability to write and sign checks for the church. Tr. at 25. The witness testified that the Individual
is honest and truthful and that she has never discovered any irregularities in the Individual’s
handling of church money. Tr. at 20. The witness also testified that the church has given the
Individual financial assistance a few times in the past. Tr. at 14, 16. On one occasion, the church
helped the Individual pay her rent because she used her own money to help ensure her son “had a
place to live.” Tr. at 15. The church also provided financial assistance to the Individual a few weeks
prior to the hearing. Tr. at 15.
Turning to the Individual’s testimony, the Individual confirmed that she provided misleading
information regarding the basis of her financial difficulties and that she intentionally omitted
delinquent accounts from her 2016 QNSP. First, the Individual confirmed that she reported
conflicting information regarding the basis for her 2000 bankruptcy. On a 2001 Financial
Questionnaire, she stated that her financial trouble resulted from medical reasons. Ex. 14. However,
during her 2001 PSI, she reported that her medical history had nothing to do with her financial
difficulty. Ex. 12 at 12-15; Tr. at 33-34. At the hearing, the Individual stated that her response on
the questionnaire was a partial answer. Tr. at 41. She testified that she failed to elaborate on the
reason for the financial trouble that led to her bankruptcy because “sometimes when I read a
question I’ll write an answer – if I – I don’t want to sound bad. If they don’t ask for more
information then I just answer the question.” Tr. at 40-41. However, she later admitted that she did
in fact provide false information when she asserted that her bankruptcy arose from a medical
condition. Tr. at 154-55.
The Individual also confirmed that when she submitted her 2016 QNSP, she failed to report any of
her delinquent accounts. Tr. at 48-49. She provided conflicting explanations for the omission. She
initially stated that she did not list them because she did not know about them. Tr. at 49. However,
she also testified that she knew at the time that she had some older bills in collection because she
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recalled receiving collection notices on some of the accounts prior to filling out the 2016 QNSP.
Tr. 49, 56-57. Then she stated that her omission resulted from her failure to carefully consider the
questions because she was busy with school and she carelessly copied her responses from an older
submission without reading all of the questions. Tr. at 58-61. Furthermore, she testified that she
understood that the question required her to report the delinquent accounts, Tr. at 57, and despite
that knowledge, she failed to report the accounts. Tr. at 62. Finally, she testified that in the future
she will read more carefully, provide detail when needed, and ask for help or clarification before
responding to a clearance-related question that she does not understand. Tr. at 149-151.
Next, the Individual testified regarding her history of failing to meet her financial obligations. She
did not dispute the allegations contained in the Notification Letter. Thus, the record demonstrates
that she had property repossessed in 1999; she filed for Chapter 7 bankruptcy in 2000; her wages
were garnished in 2006; she filed for Chapter 13 bankruptcy in 2007; her residential property was
foreclosed upon in 2015; she had eighteen separate accounts in collection in 2016; and in 2018, her
budget had a $700 shortfall each month. Ex. 2. The record also demonstrates that she confirmed,
during her 2018 PSI, that there was never a period in which she had been able to pay all her bills.
Ex. 5 at 10-12.
In her 2001 PSI, the Individual explained that her 2000 bankruptcy resulted from purchasing a car,
maintaining the car, and falling behind on paying bills. Ex. 12 at 14-15. During the hearing, she
testified that after the 2000 bankruptcy, she obtained financing to purchase a new vehicle to replace
her unreliable vehicle. Tr. at 67. However, instead of disposing of the unreliable vehicle, she
decided to keep it and the accompanying loan payment because she “kind of liked [it]” and thought
she could afford to keep both.” Tr. at 68-69.
Then, at the time of her second bankruptcy in 2007, the Individual testified she had two different
vehicles, again one inoperable and one functioning. Tr. at 70. When asked to explain what
happened to the new vehicle she purchased after the 2000 bankruptcy, she was unable to provide
much detail and stated that it may have been either repossessed or she “turned [it] in.” Tr. at 71-
72.
She also testified that she failed to remain current on her mortgage payments around the time of
her 2007 bankruptcy. Tr. at 43, 46. The Individual blamed her inability to make her mortgage
payments on her son’s father’s failure to provide child support and her inability to earn overtime.
Tr. at 38, 48. She testified that she purchased the house on the belief that her child’s father would
continue paying child support. Tr. at 44-45. However, he later filed for bankruptcy and stopped
sending child support, and she never involved the courts to enforce his obligation. Tr. at 38-39. As
for overtime, she testified that her employer started cutting back on overtime hours, Tr. at 47-48,
and that she had based a lot of her financial decisions on the availability of overtime pay. Tr. at 47.
She stated that she consequently fell behind on her mortgage “because one month [she] would
make a house payment, and then the next month [she] dealt with either [a] car payment or whatever
[her] son needed at school.” Tr. at 46. At some point, she stopped making mortgage payments.
Thereafter, from approximately 2012 to 2016, she lived in the home without having to pay her $425
mortgage payment. Tr. at 43, 79. Notwithstanding, she was still unable to meet her other financial
obligations. Tr. at 48. In the four years she lived rent-free and mortgage-free, she continued to
accumulate delinquent accounts. Tr. at 84. She testified that, instead of paying off the accounts,
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which included medical bills, she instead focused on “trying to get my son out of school,” which
included having to pay for band trips, band equipment, and travel out of the state. Tr. at 81, 84. By
2016, she had accumulated eighteen delinquent accounts. Tr. at 86, 128.
As for the Individual’s current financial situation, she testified that she had either satisfied or made
arrangements to satisfy all of the delinquent accounts identified in the Notification Letter. Tr. at
137-43. But she also provided a budget which demonstrates that her monthly expenses continue to
exceed her income by roughly $365. Ex. L; Tr. at 100. She testified that she is currently managing
her bills by making payments toward some accounts while allowing others to become delinquent
and then later making payments to bring the delinquent accounts current while letting the non-
delinquent accounts become delinquent. See Tr. at 97.
As for her future plans, the Individual testified that she will attempt to increase her income by
obtaining overtime hours and she is considering acquiring a part-time job. Tr. at 94. However, she
does not yet intend to obtain a part-time job because she is hopeful that she will be able to retain
her security clearance and thereafter be able to earn sufficient income from working overtime hours
with her current employer. Tr. at 102-103. She also conceded that there is no guarantee that she
will be able to earn significant overtime pay. Tr. at 104. Furthermore, she testified that she expects
to accumulate future medical bills and she has approximately $12,000 in student loans that, while
presently in forbearance, she must repay—potentially starting as early as June 2019. Tr. at 91, 100,
113.
V. ANALYSIS
I have thoroughly considered the record of this proceeding, including the submissions tendered in
this case and the testimony of the Individual and her witness. 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 not be restored. I cannot find that
granting the Individual a security clearance will not endanger the common defense and security,
and that it 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. Guideline F: Financial Considerations
The following relevant conditions may mitigate Guideline F security concerns:
(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;
(b) The conditions that resulted in the financial problem were largely beyond the person’s
control (e.g., loss of employment, a business downturn, unexpected medical emergency,
a death, divorce or separation, clear victimization by predatory lending practices, or
identity theft), and the individual acted responsibly under the circumstances;
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. . .
(d) The individual initiated and is adhering to a good-faith effort to repay overdue creditors
or otherwise resolve debts;
. . . .
Administrative Guidelines at ¶ 20.
The Individual did not present sufficient evidence to mitigate the concerns generated by her
financial behavior. As to the first mitigating condition, the Individual, by her own testimony, has
consistently been unable to satisfy her debts or meet her financial obligations going back to 2000,
and she presently falls short of earning enough income to cover her expense by approximately $365
a month. Her financial situation can reasonably be expected to grow more acute considering that
she will soon shoulder the burden of student loan repayment and additional medical bills. And she
does not present a convincing strategy for addressing her monthly deficiency or to prevent going
into further debt. Rather, she intends to engage in the same behavior as before: staggering payments
between her various creditors in an attempt to stay financially afloat while hoping she will be able
to work enough over-time hours to improve her situation. In other words, the record demonstrates
that she is continuing to exhibit problematic financial behavior.
Similarly, the Individual did not present sufficient evidence to mitigate the security concerns under
the second factor above. I do not find that the conditions that resulted in her financial problems
were largely beyond her control. First, while she blamed her 2000 financial problems on a medical
condition, she later retracted that explanation. She failed to provide sufficient evidence to
demonstrate that her 2000 and 2007 financial problems resulted from circumstances largely beyond
her control. As for her 2015 foreclosure, while the Individual blamed the situation on her child’s
father’s failure to provide child support payments and her lack of ability to earn sufficient income,
I remain unconvinced, given her financial history, that either situation led to her inability to meet
her financial obligations. Furthermore, the Individual demonstrated questionable financial
judgment to take on home-ownership in reliance upon another person’s promise to provide child
support and a hope that she would be able to earn sufficient overtime pay. Finally, I do not find
sufficient evidence to conclude that her present financial situation is due to circumstances largely
beyond her control. The evidence tends to demonstrate that in the past, as today, her financial
conditions are the result of her own financial decisions.
Even if I were to find that the Individual’s financial troubles arose from circumstances largely
beyond her control, I do not find that she acted responsibly under the circumstances. Instead, the
evidence demonstrates that she failed to improve her financial situation despite securing
bankruptcies and living rent-free and mortgage-free in her house for the better part of four years,
and she remains unable to satisfy her financial obligations.
Finally, as to the third mitigating condition, while the Individual either satisfied or made
arrangements to satisfy her delinquent accounts by the date of the hearing, I cannot conclude that
she has initiated and is adhering to a good-faith effort to repay overdue creditors or otherwise
resolve debts. The Individual admitted that, given her monthly financial shortfall, she expects to
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let some bills lapse while she satisfies others. Thus, she all but guarantees that she will be unable
to adhere to her plans to repay her creditors.
I find, based on the information above, that the Individual has not demonstrated that she has
mitigated the security concerns associated with Guideline F.
B. Guideline E: Personal Conduct
While Guideline E lists several conditions that may mitigate related security concerns, the only two
relevant to the present case are whether:
(c) 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;
(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 contributed to untrustworthy, unreliable, or other inappropriate behavior, and such
behavior is unlikely to recur;
. . . .
Administrative Guidelines at ¶ 17.
As to the first mitigating condition, the evidence does not demonstrate that her behavior is unlikely
to recur, and I therefore still have doubts regarding the Individual’s reliability, trustworthiness, and
judgment. During the hearing, when questioned as to why she provided incorrect information on
her 2001 Financial Questionnaire and omitted information from her 2016 QNSP, she wavered
between (1) stating that she partially or carelessly answered the questions and (2) stating that she
intentionally provided inaccurate answers. Furthermore, when later asked to explain how she would
complete clearance questionnaires in the future, she stated that she would read carefully, provide
detail, and ask for assistance if she did not understand a question. Her equivocal testimony does
not resolve my concern that she intentionally provided misleading information to the DOE. And it
does not persuade me that her behavior is unlikely to reoccur. Thus, I have remaining doubts
regarding her reliability, trustworthiness, and judgment.
Regarding the second mitigating condition, even if I accepted that the Individual acknowledged
her behavior, she has not taken positive steps to alleviate the underlying circumstances that
contributed to her concerning behavior. Not only does the Individual’s financial situation still
present a concern, but, as indicated in the preceding paragraph, it apparently continues to influence
her ability to provide truthful answers. Thus, the same stressors, circumstances, or factors that
contributed to her failure to provide complete and truthful answers to the DOE still remain.
Therefore, I cannot conclude that the Individual has mitigated the Guideline E security concerns.
VI. CONCLUSION
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Upon consideration of the entire record in this case, I find the evidence raised concerns regarding
the Individual’s eligibility for a security clearance under Guidelines E and F of the Adjudicative
Guidelines. I further find that the Individual has not succeeded in fully resolving these concerns.
Therefore, I cannot conclude that restoring 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.
§ 710.7(a). Accordingly, I find that the DOE should not restore access authorization to the
Individual 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.
James P. Thompson III
Administrative Judge
Office of Hearings and Appeals