PSH-19-0019

*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: April 12, 2019 ) Case No.: PSH-19-0019
)
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Issued: June 28, 2019
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Administrative Judge Decision
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Brooke A. DuBois, Administrative Judge:
This Decision concerns the eligibility of XXXXXX(the Individual) to hold an access authorization
under the United States Department of Energy’s (DOE) regulations, set forth at 10 C.F.R. Part
710, “Procedures for Determining Eligibility for Access to Classified Matter and 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)
(Adjudicative Guidelines), I conclude that the Individual’s access authorization should not be
restored.
I. BACKGROUND
A DOE contractor employs the Individual in a position that requires her to hold a security
clearance. In October 2016, pursuant to a reinvestigation, the Individual completed a Questionnaire
for National Security Positions (QNSP). Ex. 9 at 43. The Individual disclosed in the QNSP that an
employer had disciplined her on one occasion, that she failed to file or pay federal income taxes
for the 2015 tax year, and that she had numerous prior delinquencies involving routine accounts.
Id. at 11, 33–40. However, the Office of Personnel Management’s (OPM) background
investigation of the Individual revealed that the Individual failed to disclose numerous instances
in which her employer disciplined her, as well as several financial delinquencies, on the QNSP.
Ex. 4.
As part of its evaluation of the Individual’s eligibility for a security clearance, the Local Security
Office (LSO) conducted a personnel security interview (PSI) in June 2018. Ex. 10. As the PSI did
not resolve the security concerns, the LSO informed the Individual, in a letter dated March 12,
2019 (Notification Letter), that it possessed reliable information that created substantial doubt
regarding the Individual’s eligibility to hold a security clearance. In an attachment to the
1 The regulations define access authorization 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). This
Decision will refer to such authorization as access authorization or security clearance.
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Notification Letter, the LSO explained that the derogatory information raised security concerns
under Guideline E (Personal Conduct) and Guideline F (Financial Considerations) of the
Adjudicative Guidelines. Ex. 1.
The Individual exercised her right to request an administrative review hearing pursuant to 10
C.F.R. Part 710. Ex. 2. The Director of the Office of Hearings and Appeals (OHA) appointed me
as the Administrative Judge in this matter, and I subsequently convened a hearing pursuant to 10
C.F.R. § 710.25(d), (e), and (g). Before the hearing, the LSO submitted eleven numbered exhibits
(Ex. 1-11) into the record, and the Individual submitted one lettered exhibit (Ex. A). The LSO did
not present any testimony, while the Individual presented the testimony of four witnesses,
including her own testimony. See Transcript of Hearing, Case No. PSH-19-0019 (hereinafter cited
as “Tr.”).
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
As indicated above, the Notification Letter informed the Individual that information in the
possession of DOE created a substantial doubt concerning her eligibility for a security clearance.
That information pertains to Guidelines E and F of the Adjudicative Guidelines. Ex. 1.
The LSO cited Guideline E as a basis for denying the Individual a security clearance. Conduct
involving questionable judgement, 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. In invoking
Guideline E, the Notification Letter cited the Individual’s failure to list the following adverse
information on the QNSP: (1) the Individual was cited for speeding in 2015; (2) the Individual was
suspended from work for disciplinary reasons on three occasions; (3) a judgement was entered
against the Individual ordering the garnishment of her wages to satisfy a debt; and (4) twelve of
the Individual’s delinquent debts were assigned to collections from 2011 to 2016. DOE Ex. 1 at
1–3. The Individual’s omission of relevant facts from the QNSP and in an interview with an OPM
investigator justifies the LSO’s invocation of Guideline E in the Notification Letter. Adjudicative
Guidelines at ¶ 16(a)–(b).
The LSO referred to Guideline F as the second basis for denying the Individual a security
clearance. Failure to live within one’s means, satisfy debts, and meet financial obligations may
indicate poor self-control, lack of judgement, or unwillingness to abide by rules and regulations.
Adjudicative Guidelines at ¶ 18. In invoking Guideline F, the Notification Letter indicated that the
Individual: (1) had four unpaid collections totaling $4,053; (2) owed approximately $17,500 in
unpaid U.S. personal income taxes; and (3) failed to file a U.S. personal income tax return for the
2016 and 2017 tax years. DOE Ex. 1 at 3–4. The Individual’s unwillingness to satisfy debts
regardless of the ability to do so and failure to file federal tax returns or pay taxes justify the LSO’s
invocation of Guideline F in the Notification Letter. Adjudicative Guidelines at ¶ 19(b), (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
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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.
IV. FINDINGS OF FACT
The Individual signed the QNSP in October 2016, and certified that its contents were true,
complete, and correct to the best of her knowledge and belief. Id. at 43. In response to a question
on the QNSP concerning written warnings, official reprimands, suspensions, and discipline for
misconduct within the seven years prior to the date that she completed the QNSP, the Individual
identified one occasion in which she was “given time off for an incident . . . .” Ex. 9 at 11. The
Individual checked a box to indicate that she had no further workplace discipline to report. Id.
With respect to taxes, the Individual disclosed that she had failed to file or pay federal income
taxes for 2015, and checked a box indicating that she had no other instances of failing to file or
pay taxes to report. Id. at 33. In response to a question concerning delinquencies involving routine
accounts within the seven years prior to the date on which she completed the QNSP, the Individual
listed six delinquencies and indicated that each of them was paid in full, in good standing, or
otherwise resolved. Id. at 34–39. The Individual checked a box on the QNSP indicating that she
had no other delinquencies involving routine accounts to report. Id. at 40.
OPM’s background investigation into the Individual revealed derogatory information that the
Individual had not disclosed on the QNSP. OPM obtained a credit report (2016 Credit Report) for
the Individual in November 2016 which revealed numerous financial delinquencies that the
Individual had failed to disclose on the QNSP, including debts in collections as of the date of the
2016 Credit Report. Ex. 8. In August 2017, an OPM investigator conducted an interview with the
Individual and asked the Individual to provide information related to twenty-one of the financial
delinquencies listed on the 2016 Credit Report. Ex. 11 at 61–62. The Individual indicated that she
had disputed two of the entries on the report related to a second mortgage on her home, which the
Individual claimed that she had settled with the lender. Id. The Individual could not provide details
for the other nineteen entries on the 2016 Credit Report, and indicated that she had fallen behind
on most of her bills due to medical and financial challenges. Id. at 61. The Individual also admitted
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to having failed to list a garnishment against her wages related to a payday loan on the QNSP and
asserted that she had forgotten about the garnishment. Id. at 63.
During the interview with the OPM investigator, the Individual admitted that she and her husband
failed to timely file their federal income tax returns for 2014 and 2015 because her husband did
not believe that they should have to file or pay federal income taxes. Id. The Individual stated that
she and her husband had filed an extension for 2016, but that they had not made any payments
toward back taxes or arranged a payment plan with the IRS. Id.
The Individual reported an additional work-related disciplinary incident to the OPM investigator
in which she was suspended from work for one day for failing to report a traffic ticket to her
employer. Id. at 60. The Individual asserted that she had tried to inform her employer of the traffic
ticket, but made mistakes when filing the paperwork. Id. When asked by the OPM investigator if
she had any additional disciplinary actions to report, the Individual responded that she did not. Id.
After this interview with the Individual, OPM’s background investigation revealed numerous
instances in which the Individual was disciplined at work, which she had failed to disclose on the
QNSP or in the August 2017 OPM interview, including several multi-week suspensions from
work. Id. at 64–67. An OPM investigator conducted a second interview with the Individual in
January 2018 to address these discrepancies. Id. at 64. The Individual asserted that she had
forgotten each of the incidents when previously asked to disclose workplace discipline. Id. at 64–
67. When asked for an update on the status of her federal income taxes, the Individual responded
that she had not taken any action with respect to her unpaid 2014, 2015, or 2016 taxes, and
indicated that she and her husband owed an additional two thousand dollars in federal income taxes
for 2017. Id. at 68.
In March 2018, the LSO obtained another credit report for the Individual (2018 Credit Report).
Ex. 7. The 2018 Credit Report showed that six of the Individual’s medical debts were in
collections, and that the Individual was late in making payments on several other debts. Id. at 2–
3.
During the June 2018 PSI, the Individual revealed that she and her husband had not filed their
federal income tax return for 2017, and asserted that the IRS had provided them an extension until
July 2018 to do so. Ex. 10 at 14. The Individual reported to the LSO that she and her husband were
“basically starting from scratch to get these things done” and reported that the remodeling of their
home had impeded their ability to complete and file their taxes. Id. The Individual estimated that
she and her husband owed approximately $4,500 in taxes for 2016 and 2017, and between $5,000
and $8,000 in taxes for 2014 and 2015. Id. at 19, 23. The Individual asserted that preparing and
filing the family’s tax return was her husband’s “domain,” and attributed her tax problems to her
husband’s prior belief that he was not required to file and pay federal income taxes. Id at 27.
The Individual asserted during the PSI that her medical debts in collections should have been paid
by her medical insurance, and that she did not know how she had incurred the debts. Id. at 34. The
Individual expressed that she had no intention of paying the debts unless the collections agencies
holding the debts provided her with documentation of the services associated with the debts. Id. at
37. The Individual opined that she was financially responsible because she paid her current bills
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on time and was “makin[g] an honest effort to get all of [her older obligations] taken care of . . . .”
Id. at 53.
The Individual provided a summary of what she believed to be her family’s monthly income and
expenditures, and estimated that she and her husband had a monthly surplus of $8,242 after
expenses. Id. at 61. The Individual expressed shock after calculating the monthly surplus,
observing that she and her husband did not have substantial savings and that she did not know how
they spent their excess income each month. Id. at 62.
With respect to her work-related discipline, the Individual represented that she did not remember
the majority of the suspensions discovered by OPM during the background investigation. Id. at
71–74. The Individual attributed several of the disciplinary actions to her ignorance of work-
related requirements and to being blamed for mistakes by another employee. Id. at 75–80.
During the hearing, the Individual offered the testimony of three co-workers as character
witnesses, all of whom had known the Individual for six years or more. Tr. at 9, 18, 26. None of
the witnesses reported detailed knowledge of the security concerns asserted by the LSO, but each
of them testified as to the Individual’s reliable and trustworthy character. Id. at 9–12, 19, 23, 26–
27.
The Individual testified that, at the time that she completed the QNSP, she believed that her
discipline was behind her and that she “did not think that [she] had anything, let alone that much,
happen within [the reportable] time frame.” Id. at 41. With respect to the financial delinquencies
that she failed to list on the QNSP, the Individual testified that she “did not do [her] due diligence
[or] pay enough attention to [the questions].” Id. at 49. The Individual also expressed that she
thought that she was doing better financially than in the past, and that, since nothing had changed
for the worse, she had thought that she had nothing to report. Id. at 50. The Individual testified
that, in the future, she would pay more attention to detail when completing any security-related
form and conduct the necessary research to provide complete answers to all questions. Id. at 72.
The Individual described her progress towards resolving the adverse entries on the 2018 Credit
Report, but stated that she had not obtained an updated credit report reflecting her progress towards
satisfying her financial obligations. Id. at 43–46. With respect to her federal income taxes, the
Individual explained that she and her husband had paid the amounts due for the 2014 and 2015 tax
years, and that they had entered into a payment plan with the IRS for the 2016 and 2017 tax years.
Id. at 65, 70. According to the Individual, she and her husband ensured that they could meet their
tax obligations by over-withholding taxes from their paychecks and setting aside $400 per month
pursuant to the payment plan with the IRS. Id. at 70, 77. During the hearing, I advised the
Individual that I would hold the record open until I received the hearing transcript to allow her to
submit an updated credit report and documentation of her actions to meet her federal income tax
obligations. Id. at 54, 78. The Individual did not submit any additional documents.
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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
set forth at 10 C.F.R. § 710.7(c) and the Adjudicative Guidelines. After due deliberation, I have
determined that the Individual’s security clearance should not be restored. I find that restoring the
Individual’s DOE security clearance would endanger the common defense and security, and is not
clearly consistent with the national interest. 10 C.F.R. § 710.27(a). My specific findings in support
of this decision are discussed below.
A. Guideline E
An individual may mitigate security concerns under Guideline E if the individual made prompt,
good-faith efforts to correct the omission, concealment, or falsification before being confronted
with the facts; or if 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. Guideline E at ¶ 17(a),
(c).2
In this case, the Individual did not disclose her omissions on the QNSP until confronted with
evidence that she had not been forthcoming about her disciplinary history and financial
delinquencies. Furthermore, the Individual continued to underreport her disciplinary history and
the extent of her financial delinquencies during her first interview with an OPM investigator.
Although the Individual claimed that her omissions were the result of carelessness rather than an
intent to deceive, the volume of information that the Individual omitted, and the nature of the
discipline which she failed to disclose, which included several multi-week suspensions from work,
cast significant doubt on the Individual’s trustworthiness and judgement and cause me to conclude
that she did not act in good faith. Even if the Individual’s omissions were truly the product of
carelessness, the sheer number of discrepancies casts doubt on the Individual’s reliability and
willingness to follow rules. Therefore, I find that the Individual does not satisfy any of the
mitigating conditions under Guideline E.
B. Guideline F
An Individual may mitigate security concerns under Guideline F if 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; the
conditions that resulted in the financial problem were largely beyond the person’s control, and the
individual acted responsibly under the circumstances; the individual has received or is receiving
financial counseling; the individual initiated and is adhering to a good-faith effort to repay overdue
creditors or otherwise resolve debts; the individual has a reasonable basis to dispute the legitimacy
2 The other mitigating conditions under Guideline E, relating to following the advice of counsel, obtaining counseling
to change concerning behavior, taking steps to resolve vulnerability to exploitation, manipulation, or duress,
demonstrating that security concerns were unsubstantiated, and disassociating from persons involved in criminal
activities, are clearly not applicable to this matter. Adjudicative Guidelines at ¶ 17(b), (d)–(g).
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of the past-due debt which is the cause of the problem and provides documented proof to
substantiate the basis of the dispute or provides evidence of actions to resolve the issue;
unexplained affluence resulted from a legal source of income; or the individual has made
arrangements with the appropriate tax authority to file or pay the amount owed and is in
compliance with those arrangements. Guideline F at ¶ 20(a)–(g).
I find that the Individual has not met any of the mitigating conditions under Guideline F in this
case. Although the Individual claims that she has satisfied her 2014 and 2015 federal income tax
obligations, is making payments pursuant to a payment plan for the 2016 and 2017 tax years, and
has made significant progress towards resolving her delinquent debts, the Individual failed to
provide any documentary evidence of these claims. In light of the Individual’s long history of
failing to meet her financial obligations, and her incomplete accounts of her financial status
throughout the investigative process, the Individual’s testimony alone is not adequate evidence to
prove that she has resolved the security concerns asserted by the LSO under Guideline F.
Furthermore, although the Individual attributed some of her financial difficulties to family medical
issues beyond her control, the Individual has not established an inability to meet her financial
obligations. Rather, the Individual asserted that she and her husband earn significantly more
income than they require to meet their expenses but cannot account for how their income is spent.
Under these circumstances, the Individual’s long history of failing to meet her financial obligations
reflects poor judgement and an unwillingness to abide by rules and regulations.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
the DOE that raised security concerns under Guidelines E and F of the Adjudicative Guidelines.
After considering all of 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 find that the Individual has not brought forth sufficient evidence to resolve the security
concerns set forth in the Notification Letter. Accordingly, I have determined that the Individual’s
access authorization should not be restored. Either party may seek review of this Decision by an
Appeal Panel pursuant to 10 C.F.R. § 710.28.
Brooke A. DuBois
Administrative Judge
Office of Hearings and Appeals