PSH-22-0018

*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: November 30, 2021 ) Case No.: PSH-22-0018
)
__________________________________________)
Issued: March 2, 2022
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXX (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 granted.
I. Background
A DOE Contractor employs the Individual in a position that requires him to hold an access
authorization. To apply for his security clearance, the Individual signed and submitted a
Questionnaire for National Security Positions (QNSP) in July 2019. Ex. 7. In the QNSP, the
Individual denied any financial difficulties due to gambling. Ex. 7 at 66. The Individual
subsequently underwent an Enhanced Subject Interview (ESI) with an Office of Personnel
Management (OPM) investigator in September and October 2019. Ex. 7. During the ESI, the
Individual answered questions pertaining to documented financial transactions at a casino the
Individual frequents approximately two or three times a week. Ex. 7 at 81-82. As questions
regarding the Individual’s fitness to hold a security clearance remained, the Individual was asked
to undergo a psychiatric evaluation conducted by a DOE-consultant psychiatrist (DOE
Psychiatrist), who ultimately compiled a Psychiatric Evaluation Report (report) in April 2021. Ex.
5.
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.
2
Due to unresolved security concerns, the LSO began the present administrative review proceeding
by issuing a Notification Letter to the Individual. The Notification Letter informed the Individual
that he was entitled to a hearing before an Administrative Judge to resolve the substantial doubt
regarding his eligibility to hold a security clearance. See 10 C.F.R. § 710.21.
The Individual requested a hearing, and the LSO forwarded the Individual’s request to the Office
of Hearings and Appeals (OHA). The Director of OHA appointed me as the Administrative Judge
in this matter. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e), and (g), the
Individual testified on his own behalf. See Transcript of Hearing, Case No. PSH-22-0018
(hereinafter cited as “Tr.”). He also submitted twenty exhibits, marked as Exhibits A through T.
The DOE Counsel presented the testimony of one witness and submitted seven exhibits marked as
Exhibits 1 through 7.
II. Notification Letter and the Associated Concerns
Guideline F (Financial Considerations) provides that an individual’s failure 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.” Guideline F at ¶ 18. Under Guideline F, the LSO alleged that: 1) in a December
2018, response to a Divorce Petition, the Individual’s ex-wife asked that the Individual’s gambling
debt be deemed his sole responsibility; 2) in a January 2019 emergency motion, the Individual’s
ex-wife asked that the proceeds from the sale of the Individual’s home in which the couple
previously resided be kept in escrow until a settlement is reached, as the Individual was incurring
gambling debt on the couple’s credit cards; 3) the casino frequented by the Individual provided a
statement that the Individual had incurred gambling losses of $82,163 in 2017 and losses of
$132,060 in 2018; 4) from April 12, 2019, to July 19, 2019, the casino indicated that the Individual
made twelve deposits totaling $160,963 and eleven withdrawals totaling $153,654; and 5) the
Individual used $15,000 to $20,000 from the sale of his home to satisfy debts that included
gambling debts.
Guideline I (Psychological Conditions) provides that “[c]ertain emotional, mental, and personality
conditions can impair judgement, reliability, or trustworthiness.” Adjudicative Guidelines at ¶ 27.
Under Guideline I, the LSO alleged that after conducting a psychological evaluation of the
Individual on April 6, 2021, the DOE Psychiatrist concluded that the Individual suffers from
“Gambling Disorder, In Early Remission,” which can “impair judgement, stability, and
trustworthiness.” Ex. 5 at 9. Given the DOE Psychiatrist’s evaluation, the LSO was justified in
invoking Guideline I.
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 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
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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)
(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
During the September 2019 ESI, the Individual was confronted with a record of financial
transactions at a casino dating as far back as May 2017. Ex. 7 at 81-82. Each individual deposit
and withdrawal exceeded $10,000, and from April 12, 2019, to July 19, 2019, the Individual had
made twelve deposits totaling $160,963 and eleven withdrawals totaling $153,654. Ex. 7 at 81-
82.2 When confronted with the transactions, the OPM investigator noted that the Individual “[did]
not understand [the] transactions.” Ex. 7 at 83. Although the Individual explained that he took a
cash prize in lieu of a car won at the casino, he stated that he “[did] not have this kind of money to
spend[,]” and generally takes “a few hundred dollars with him,” to play at tables and slots. Ex. 7
at 83. The Individual admitted that he suffers losses on occasion, but he denied losses or wins in
the amounts provided, and further, he denied any debt that resulted from gambling losses and
indicated that he meets all his financial obligations. Ex. 7 at 83. The Individual also noted that the
1099 forms he received to report gambling winnings on his income tax returns did not indicate
winnings in the amounts shown in these transactions. Ex. 7 at 83. Also attached to the OPM
investigator’s report (OPM report) were “win/loss” statements from the casino, indicating a loss
of over $80,000 in 2017 and a loss of over $130,000 in 2018. Ex. 7 at 133-34.3
During the October 2019 ESI, the Individual informed the OPM investigator that he used $15,000
to $20,000 from the sale of his home to satisfy some debts and loans, “some of which were related
to gambling.” Ex. 7 at 84.4 The Individual denied making the decision to sell the house to cover
2 At the hearing, the Individual could not explain these amounts during his testimony and indicated that this
information was “grossly inaccurate.” Tr. at 89.
3 The Individual submitted citations pertaining to United States Tax Court matters in which the courts conclude that
win/loss statements are unreliable, as these statements contain caveats to their accuracy on their face. Mayer v.
Commissioner, T.C. Memo. 2000-295, 2000 WL 1349156 (U.S.Tax Ct.); Lutz v. Commissioner, T.C. Memo. 2002-
89, 2002 WL 506881 (U.S.Tax Ct.).
4 At the hearing, the Individual denied that he used proceeds from the sale of the house to cover any gambling debts,
as he claimed that he did not have any debts. Tr. at 35. He did state that he satisfied some credit card debts, but that
he could not remember why he incurred those debts. Id.
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gambling debts. Ex. 7 at 86. Prior to the sale of his home, the Individual’s ex-wife filed an
emergency motion, asking that the proceeds from the sale of his house remain in escrow until the
parties could reach a settlement, as the Individual had existing gambling debts after obtaining cash
advances using the couple’s credit cards. Ex. 7 at 96. The OPM report also indicated that in her
response to the petition for divorce the Individual filed, the Individual’s ex-wife asked that the
Individual’s gambling debts remain his sole responsibility. Ex. 7 at 96.
During his psychiatric evaluation, the Individual indicated that he began gambling to “relieve the
stress of his marital problems.” Ex. 5 at 2-3. When confronted with the large winnings and losses
on the casino’s win/loss statement, the Individual told the DOE Psychiatrist that he was breaking
even, although he did not have an explanation for the documented losses. Ex. 5 at 4. He also denied
any financial difficulties because of gambling, and further denied taking any money from family
and friends or out of savings to cover gambling losses. Ex. 5 at 4. He also denied engaging in any
illegal activity to cover gambling losses. Ex. 5 at 4. He acknowledged that his ex-wife accused him
of being a “gambling addict[,]” and stated that although his ex-wife asked that all gambling debts
be deemed his separate property upon their divorce, he did not have any gambling debts. Ex. 5 at
5. At the time of the evaluation, the Individual approximated the date of his last wager as
November 2020. Ex. 5 at 6. The Individual was diagnosed with Gambling Disorder, Early
Remission. Ex. 5 at 8. It was determined that this condition can impair his “judgement, stability,
reliability, and trustworthiness[,]” and further, that the Individual has a fair prognosis. Ex. 5 at 10.
V. Individual’s Exhibits
On October 19, 2021, the Individual underwent an evaluation conducted by a therapist of his
choosing (Licensed Therapist). Ex. A.5 As indicated in the Licensed Therapist’s October 2021
report, the Individual stated that he frequented casinos to escape his marriage, and took advantage
of the restaurants, spa, overnight stays, and other accommodations. Ex. A at 3-4. The Individual
insisted that on the occasions he did gamble, he would only gamble $100 to $200 at a time, and
further, that the win-loss statements from the casino were incorrect and that the allegations made
by his ex-wife were tantamount to “mudslinging.” Ex. A at 3-4. Based on testing conducted on the
Individual, the Licensed Therapist concluded that the Individual has “no probability of a gambling
disorder.” Ex. A at 10. As the Licensed Therapist found “[n]o [u]se [d]isorder,” she did not
recommend any treatment. Ex. A at 11.
The Individual also submitted a credit report, which does not contain debts amounting to the sums
found in the win-loss statement provided by the casino. Ex. F. The Individual attended an hour-
long course to improve his credit health. Ex. D.6 As part of the course, the Individual completed a
budget exercise, which revealed that his net annual income totals just below $70,000 and his
monthly expenses total approximately $4,300. Ex. D.
5 The Licensed Therapist’s Curriculum Vitae indicates she is a Licensed Clinical Social Worker (LCSW), Certified
Substance Abuse Counselor (CSAC), Master of Addiction Counseling (MAC), and Substance Abuse Professional
(SAP). Ex. B. at 2. She has been certified by the Department of Defense’s Department of Hearings and Appeals
(DOHA) as an expert. Ex. B at 1. The Licensed Therapist did not testify at the hearing.
6 The course lasted one hour, and he did not receive any further financial counseling. Tr. at 40-41.
5
The Individual also submitted his income tax returns. For tax year 2017, he reported gambling
winnings exceeding $25,000 and losses equaling the same amount. Ex. G at 1, 3. For tax year
2018, the Individual reported gambling winnings exceeding $47,000 and losses totaling the same
amount. Ex. H at 4, 6. For tax year 2019, the Individual reported gambling winnings exceeding
$76,000 and gambling losses in the same amount. Ex. I at 3-4. Tax forms provided to the Individual
from the casino indicate winnings in the same amount for each tax year. Ex. J.
The Individual also submitted four letters of support. Ex. O. These character witnesses describe
the individual as reliable, trustworthy, and hardworking, and one indicated that he has personally
witnessed the fact that the Individual meets his financial obligations. Ex. O at 1-4.
VI. Hearing Testimony
The Individual testified that after his child was born, his marriage steadily deteriorated, and his ex-
wife had become “abusive” toward the end of their relationship. Tr. at 17. He claimed that, after
he filed for divorce, his ex-wife used allegations related to his gambling against him in the
proceedings to obtain proceeds from the sale of the home, even though she knew it would endanger
his employment status. Id. at 19-20, 32-34, 61-62, 72.7 He began frequenting casinos
approximately three times a week in 2017 when he could no longer “bear being at home with [his
wife.]” Id. at 20-21, 48, 70-72. The Individual would spend anywhere from thirty minutes to three
hours at the casino and would avail himself of other accommodations, like a free hotel stay, by
receiving rewards for playing table games and entering drawings for “free play.” Id. at 21-23, 50-
53. He stated that he would take only $300-$500 dollars with him to the casino, and if he lost that
amount, he “[would not] do anything else[,]” in that he would not withdraw more money to play
because he did not want to jeopardize his ability to satisfy his other obligations. Id. at 23-24, 48-
49.8 He denied gambling more to recover any losses and stated that if he withdrew money from
the automatic teller machine, he only withdrew amounts within his $300 to $500 self-imposed
budget. Id. at 25, 65-66.
He indicated that he went to the casino only once or twice in 2021 to protect his own health during
the pandemic and denied ever borrowing money from friends or family to pay gambling debts,
placing larger bets to obtain feelings of excitement, writing bad checks to pay debts, or
experiencing negative feelings while refraining from gambling. Id. at 25-26, 47-48. He also stated
that he never went into credit card debt because of gambling and that none of his credit card debt
at the time of his divorce was related to gambling. Tr. at 62-65. The Individual attempted to clarify
7 The Individual confirmed that he stopped frequenting casinos when he was attempting to reconcile with his wife,
and that the 2019 emergency motion referred to in the Notification Letter was never heard by the court. Id. at 27, 34,
67-68. The proceeds from the home were kept in escrow and his ex-wife was provided with $15,000 from the sale of
the house, and further, the final divorce decree makes no mention of the allegations pertaining to gambling. Id. at 35,
68, 72-73.
8 Despite accounts recorded in the OPM report and the DOE Psychiatrist report, the Individual denied informing either
the OPM investigator or the DOE Psychiatrist that he would take up to $1,000 at a time to gamble. Tr. at 85-87. He
insisted that he did not take up to $100,000 per year to gamble, as that exceeded his annual salary, and accordingly,
he would not be able to meet his financial obligations. Tr. at 87-88.
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these statements by stating he “would win the cash drawings” and continue playing with the money
he won. Tr. at 49. He stated that he would be willing to discontinue gambling altogether, as he
never felt gambling was the center of his life, and accordingly, he does not feel he has a gambling
disorder. Id. at 28-29.
Regarding the win/loss statements provided by the casino, the Individual could not explain the
listed amounts. Id. at 29. The Individual testified that he learned that he could accumulate points
by playing “on the tables and turning money over on the tables…cashing in, walking away.” Id. at
29-30. He expressed shock at seeing the win/loss statements and did not consider them to be
accurate statements, as he denied any losses at the casino. Id. at 30-31, 57.9 The Individual stated
that he would not be able to meet his financial obligations if he was losing the amount of money
indicated on the win/loss statements. Tr. at 52. He also testified that the win/loss statements are
issued by the Player’s Club, which is a different entity than the cashier system that provides tax
documents. Tr. at 56. However, he did admit that he reported the winnings in his tax statements
not only as winnings on his IRS income tax return, but also as losses, and that he keeps the win/loss
statements, which he believes are “grossly inflated,” to provide to the IRS in the event he is audited.
Tr. at 57-61. The Individual does not know how the win/loss statements are calculated, he could
not estimate his losses for years 2017 through 2019 because he “[did not] think [he] lost any
money[,]” and he asserted that these statements explicitly indicate that the casino “is not
responsible for the accuracy…of [the] estimate.” Tr. at 59, 74, 80-81.10
In his testimony, the DOE Psychiatrist stated that he diagnosed the Individual with Gambling
Disorder, Mild, in Early Remission, as the Individual met five of the nine diagnosing criteria, and
that he did not hear anything during testimony that would change that diagnosis. Tr. at 96, 110. In
arriving at this conclusion, the DOE Psychiatrist examined the Individual’s personnel security file
in addition to conducting an hour-and-a-half long interview of the Individual. Tr. at 97, 113. The
DOE Psychiatrist noted that the Individual exhibited some denial regarding his gambling, and
further that he did not directly answer any questions pertaining to the documented deposits and
withdrawals in the OPM report. Tr. at 98-101. When asked to opine on the Licensed Therapist’s
report, the DOE Psychiatrist testified that the Licensed Therapist conducted screenings which
relied on the Individual’s self-reports, and accordingly, was “inappropriate for a forensic
evaluation.” Id. at 102-03. The DOE Psychiatrist noted that the Licensed Therapist had also asked
the Individual to self-report about the diagnostic criteria, which he found unacceptable. Id. at 103.
In addition, the DOE Psychiatrist noted that the Licensed Therapist’s methodology relied on self-
reporting, and there did not appear to be any incorporated validity testing to determine whether the
Individual was “faking good” or reporting in an “overly… self-favoring” manner. Id. at 104-05.
Although the DOE Psychiatrist observed that the Individual has improved, he does not believe the
Individual has accepted that “[he has] ever had a gambling disorder, which make the prognosis
more difficult[.]” Tr. at 110. However, as the Individual had gone approximately fourteen months
9 As indicated in the Findings of Fact, the win/loss statements and the tax documents indicate different amounts, in
that the win/loss statements only provide losses, and the tax statements show winnings.
10 The Individual stated that he “rarely had losses[,]” in that if he used his own money to gamble and lost, he did not
continue gambling to win his money back. Tr. at 81-82.
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without gambling, he is moving from early remission to “sustained stage of remission[.]” Tr. at
110, 128-29. Further, the Individual has a fair prognosis, as there is concern that the Individual
will “seek solace in a casino[]” when confronted with interpersonal difficulty and the fact that the
Individual does not believe he has a gambling disorder. Tr. at 111.11 Further, the DOE Psychiatrist
recommended treatment in the form of a program like Gamblers Anonymous or individual
counseling, and stated that he would consider the Individual reformed or rehabilitated if he had
one year of treatment without placing a wager during that time. Tr. at 111-12, 134.
While the DOE Psychiatrist acknowledged that he relied on the Individual’s ex-wife’s statements
as well as the casino’s win/loss statements to an extent, he felt casinos would exercise some amount
of accuracy monitoring the flow of cash in and out of its establishment. Tr. at 117-22. The DOE
Psychiatrist also acknowledged that it appeared from the file that the Individual was not in any
debt, did not have any outstanding financial obligations, and did not obtain any money from any
illegal sources. Tr. at 125-27, 135-36. As the Individual was not gambling at the time of the
hearing, it did not appear that the gambling disorder was active, but the DOE Psychiatrist observed
that the chances of recurrence increase with the Individual’s level of stress. Tr. at 131. The DOE
Psychiatrist opined that the Individual still had a mental or personality condition that impairs his
judgement, trustworthiness, or reliability. Tr. at 131-32.
VII. Analysis
Guideline I
As previously stated, the LSO properly raised the Guideline I concern based on the DOE
Psychiatrist’s opinion that the Individual suffers from a gambling disorder, in early remission.
Although the Individual’s Licensed Therapist’s report was submitted into the record, she did not
testify at the hearing. After reviewing the Licensed Therapist’s report, the DOE Psychiatrist
expressed concern that to prepare her report, she relied on the Individual’s self-report stating,
“[m]y concern was that [the] instruments all relied on self-report, which is inappropriate for a
forensic evaluation.” Tr. at 103. The DOE Psychiatrist continued “[s]o self-report in a forensic
exam is . . . below standard, and that’s all she had.” Id. at 103-04. He concluded that “[t]here
were no validity scales in . . . what she called standardized testing. . ..” Id. at 105.
While the DOE Psychiatrist testified that the Individual was moving into sustained remission at
the time of the hearing, he also indicated that some concerns remained. Tr. at 110. He continued
that the Individual’s prognosis was only fair because he would not seek treatment because he does
not believe that he has a gambling disorder. Tr. at 111.
The Adjudicative Guidelines indicate that an individual may mitigate Guideline I concerns if:
a) The identified condition is readily controllable with treatment, and the individual has
demonstrated ongoing and consistent compliance with the treatment plan;
11 In his report, the DOE Psychiatrist first stated that the Individual had a poor prognosis, but ultimately indicated the
Individual had a fair prognosis at the conclusion of the report. Tr. at 111.
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b) The individual has voluntarily entered a counseling or treatment program for a condition
that is amenable to treatment, and the individual is currently receiving counseling or
treatment with a favorable prognosis by a duly qualified mental health professional;
c) Recent opinion by a duly qualified mental health professional employed by, or acceptable
to and approved by, the U.S. Government that an individual's previous condition is under
control or in remission, and has a low probability of recurrence or exacerbation;
d) The past psychological/psychiatric condition was temporary, the situation has been
resolved, and the individual no longer shows indications of emotional instability;
e) There is no indication of a current problem.
Adjudicative Guidelines at ¶ 29(a)-(e). I cannot find that the Individual meets any of the conditions
for mitigation. The Individual has not entered counseling or a treatment program for his gambling
problem, and therefore he had not demonstrated ongoing and consistent compliance with a
treatment plan. Although the Individual did present an opinion of a qualified mental health
professional, the Licensed Therapist, the DOE Psychiatrist explained his concerns with her
opinion. I find the DOE Psychiatrist’s report and his testimony significantly more convincing
concerning the state of the Individual’s gambling issues. Finally, although the DOE Psychiatrist
indicated that the Individual has an ongoing problem, the Individual’s prognosis is only fair.
Therefore, I cannot find that the Individual has mitigated the Guideline I concern raised by the
DOE Psychiatrist’s diagnosis that the Individual suffers from a Gambling Disorder.
Guideline F
Regarding the Guideline F concerns, I question whether the LSO had sufficient cause to raise a
concern. Despite the evidence produced by the LSO, the record lacks any type of evidence that
the Individual’s gambling caused any type of financial distress. The Individual’s credit reports do
not indicate that he had outstanding or delinquent debts. Absent any type of evidence that the
Individual has been experiencing financial distress, it does not appear that Guideline F security
concerns are raised by the Individual’s conduct. Consequently, none of the information cited under
Guideline F itself raises a security concern that would bar the Individual from holding a security
clearance.
Despite this finding, the Individual has not mitigated or resolved the Guideline I concern at issue
in this case. Consequently, I cannot find that the Individual should be granted a security clearance.
VIII. Conclusion
For the reasons set forth above, I conclude that the LSO properly invoked Guideline I of the
Adjudicative Guidelines. After considering all the evidence, both 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 under Guideline I set forth in the Summary of Security Concerns.
Accordingly, the Individual has not demonstrated that granting his security clearance would not
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endanger the common defense and would be clearly consistent with the national interest.
Therefore, the Individual’s security clearance should not be granted at this time. Either party may
seek review of this Decision by an Appeal Panel under the procedures set forth at 10 C.F.R.
§ 710.28.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals