PSH-22-0129

*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 12, 2022 ) Case No.: PSH-22-0129
)
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Issued: December 28, 2022
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Administrative Judge Decision
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Janet R.H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX (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
The Individual is employed by a DOE contractor in a position that requires him to hold a security
clearance. In April 2021, he completed a Questionnaire for National Security Positions (QNSP).
Exhibit (Ex.) 7. During the background investigation which occurred following his completion of
the QNSP, the Office of Personnel Management (OPM) found unresolved financial obligations
and criminal charges. Ex. 8. Due to unresolved security concerns, the Local Security Office (LSO)
issued a Notification Letter to the Individual in May 2022 informing him that it possessed reliable
information that created substantial doubt regarding his eligibility to hold a security clearance. Ex.
1. In the Summary of Security Concerns (SSC) attached to the letter, the LSO explained that the
derogatory information described above raised security concerns under Guidelines F (Financial
Considerations) and J (Criminal Conduct) of the Adjudicative Guidelines. Id.
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
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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clearance. See 10 C.F.R. § 710.21. The Individual exercised his 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 appointed me as the Administrative Judge in this matter, and I subsequently conducted an
administrative hearing. The LSO submitted eight exhibits (Exs. 1–8). The Individual did not
present any exhibits. The Individual testified on his own behalf and presented the testimony of his
ex-wife. Hearing Transcript (Tr.) at 9, 42. The LSO did not call any witnesses to testify.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline F (Financial Considerations) as a basis for its determination that the
Individual was ineligible for access authorization. Ex. 1 at 1–2. “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.”
Adjudicative Guidelines at ¶ 18. Based on information found in the Individual’s April 27, 2021,
credit report, the LSO relied on two charge-off accounts totaling $16,084 and three collection
accounts totaling $2,955 to raise the Guideline F concern. Ex. 1 at 1. The LSO also relied upon the
fact that the Individual stated in his response to a January 2022 Letter of Interrogatory (LOI) that
he did not intend to pay one of the charged-off accounts because the creditor could not demand
payment. Id. Finally, the LSO relied on the Individual’s failure to file his 2017 and 2018 federal
and state business tax returns and his 2017 individual federal and state tax returns. Id. at 2. These
allegations justify the LSO’s invocation of Guideline F. Adjudicative Guidelines at ¶ 19(a), (c),
(f).
The LSO cited Guideline J (Criminal Conduct) as a second basis for its determination that the
Individual was ineligible for access authorization. Ex. 1. at 2. “Criminal activity creates doubt
about a person’s judgment, reliability, and trustworthiness. By its very nature, it calls into question
a person’s ability or willingness to comply with laws, rules, and regulations.” Adjudicative
Guidelines at ¶ 30. The LSO relied upon 1) a criminal charge regarding the Individual’s 2015
failure to secure payment of worker’s compensation insurance; 2) a 2019 restraining order, as the
result of a confrontation between the Individual and his ex-wife at a gym; 3) a 2018 domestic
violence restraining order; 4) a 2018 charge of battery on a spouse/former spouse, which resulted
in an outstanding warrant for failure to appear being issued; 5) a 2011 charge of two counts of
battery on a spouse/former spouse; and 6) the Individual’s marijuana use approximately 60 times
a year between 2006 through 2019. Ex. 1 at 2–3. The criminal charges, the restraining orders, and
the allegation of marijuana use justify the LSO’s invocation of Guideline J. Adjudicative
Guidelines at ¶ 31(a) (b).
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
standard implies that there is a presumption against granting or restoring a security clearance. See
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Dep’t 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 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
As of the date of the SSC, the Individual had six overdue financial obligations, none of which he
included on his QNSP. Ex. 7 at 36. On his response to the LOI, he asserted that he answered the
relevant QNSP question incorrectly by mistake. For the largest debt, the Individual disavowed
responsibility, claiming that he had returned his truck because he could not afford it and thought
returning the truck would satisfy his debt. Ex. 5 at 25; Tr. at 13. At the hearing, he claimed that
“by law I’m not obligated to it because of the -- I mean, once you write it off on the profit and loss
statement, you can’t go after a person. That’s double-dipping at that point.” Tr. at 11.
The Individual indicated that his financial difficulties began because his self-owned business had
a downturn due to the change in the season. Ex. 5 at 25. At the hearing, he also indicated that,
although he knew the underlying business, he was not a good businessman. Tr. at 60. In addition,
he testified that his financial difficulties were exacerbated because his marriage fell apart. Id. at
21. Due to the ending of his marriage,2 he could not afford his child support payments and other
debts grew. Id. The Individual testified, and his wife confirmed, that his alimony3 and child support
payments were originally $4,000 a month, before eventually being reduced to $1,200. Id. at 21–
23, 54.
Going through each charged off obligation separately, the Individual stated that he was not aware
of the outstanding financial debt in the amount of $5,073. Ex. 5 at 6; Tr. at 11. He asserted that he
does not intend to resolve the debt because it has been charged off, so legally he is not liable as it
would result in “double dipping” by the creditor. Tr. at 11. Regarding a second charged off debt
in the amount of $11,011, the Individual stated that the debt was a business obligation resulting
from a repossessed truck from when he owned his own company. Ex. 5 at 7; Tr. at 13. Again, he
disavowed responsibility because the debt had been charged off and he had returned the truck. Tr.
2 Although legally separated, the Individual and his ex-wife both testified that they are not yet divorced. Tr. at 40, 44.
I will still refer to her as his ex-wife.
3 Both the Individual and his ex-wife referred to his monthly payments to her as alimony and child support. Tr. at
21–23, 54.
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at 13–14. The Individual indicated that he was not planning on paying an overdue obligation,
because he lacked the funds and the account had been charged off. Ex. 5 at 8; see also Tr. at 13.
The remaining outstanding financial obligations are in collections. Ex. 1 at 1. The debt in the
amount of $2,442 was for a mobile telephone. Id. at 15. He initially testified that the cell phone
was company owned but then admitted that the phone was for both personal and company use. Id.
at 15, 16. The Individual did not address whether or how he intends to satisfy the debt. About the
debt in the amount of $285, the Individual stated that he intended to pay the debt “just to make it
go away,” but stated he was currently unable to make any payment. Id. at 17; Ex. 5 at 7. He claimed
that it was vehicle insurance for the company truck, which was underlying the $11,011 debt, that
he returned. Id. Regarding the debt in the amount of $228, the Individual claimed the debt was his
ex-wife’s responsibility in their separation agreement, but that he will pay it when he has enough
money. Ex. 5 at 7; Tr. at 18. Finally, the Individual stated that his child support and alimony
payments are being deducted from his salary and he is current on those obligations. Ex. 5 at 8; Tr.
at 23.
The Individual claimed that he was current on filing his personal federal and state taxes, having
filed his 2019, 2020, and 2021 tax returns.4 Tr. at 63–64; Ex. 5 at 10. However, he indicated that
he had not filed his 2017 or 2018 tax returns because he lacked the funds to pay the taxes. Ex. 5 at
10; Tr. at 24, 40. Yet, later in his testimony, he stated that he had filed his 2018 personal tax returns.
Tr. at 64. The Individual claimed that he had not filed the tax returns because he did not “want to
walk in that door and take on another debt at this point.” Id. at 24. When asked why he did not file
his 2017 taxes when they were due in 2018, the Individual stated that he was unable to access his
records, which were in the marital home from which he had been barred. Id. at 25. Yet, both he
and his wife testified that they did not separate until September 2018. Id. at 27, 45. The Individual
asserted that he did not owe any back taxes in relation to his company, although he has not filed
those tax returns. Id. at 11.
Regarding his criminal activity, the Individual asserted that the May 2018 charge of battery on a
spouse/former spouse was false, claiming he was never arrested. Ex. 5 at 13–14; Tr. at 35–36.
About the August 2019 bench warrant for failure to appear, the Individual claimed that the warrant
was sent to his marital home address, but he no longer lived there, and his ex-wife never forwarded
it to him. Ex. 5 at 15; Tr. at 36.
The Individual disputed the underlying facts that supported a September 2018 restraining order.
Ex. 5 at 16. He claimed that when he was stopping a fight between his father and ex-father-in-law,
his ex-father-in-law lost his balance and fell into a cabinet, causing the ex-father-in-law to be
injured. Ex. 5 at 17. His ex-wife filed a complaint with the police the following day and he was
given 30 minutes to remove his personal and company belongings from the home. Tr. at 26. The
ex-wife testified, “I feel like I was being a bit dramatic at the time. . . . And I did what I had to do
to separate us.” Tr. at 45. She reiterated that she “dramatized the story,” but she could not state
what occurred other than “yelling and screaming.” Id. The ex-wife confirmed the Individual’s
testimony that she did not call the police, but rather went to the police station the following day
4 As of the date of the LOI, his 2021 federal and state tax returns were not yet due. Ex. 5. At one point during the
hearing, the Individual claimed that he had filed his 2018 tax return. Tr. at 64. However, earlier in the hearing, he
stated that he had not yet filed his 2018 taxes. Id. at 24.
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and filled out paperwork to have him removed from the home. Id. at 46. She stated, “I went to the
police and filled out paperwork and dramatized the situation so I could remove him from the
home.” Id.
As with the other charges above, the Individual claimed that the February 2019 restraining order
resulted from a misunderstanding. Ex. 5 at 18. The Individual testified that his ex-wife had taken
their son’s phone. Tr. at 31. She lived only one block away from the Individual, so while the son
was on visitation at the Individual’s house, the son went to the ex-wife’s house to get the phone,
and then again later to return it. Id. at 31. When the son returned the phone to the ex-wife’s house,
the ex-wife returned home and found the son there. Id. at 32. She then took custody of the son,
without the Individual’s knowledge, and apparently, proceeded to take him with her to the gym.
The Individual claimed that he was trying to find his son, because again it was his day to have
visitation with the son, and the Individual tracked the son’s phone to a gym. Ex. 5 at 18; Tr. at 32.
The Individual claims he had texted and called his ex-wife trying to get his son, but that she did
not respond. Ex. 5 at 18; Tr. at 32. At the gym, the Individual and the ex-wife had an altercation
that they both testified involved “yelling.” Tr. at 48. The ex-wife equivocated on whether it was
the Individual’s day to have his young son. Tr. at 49. She confirmed the essence of the Individual’s
story regarding the actions that occurred prior to her requesting the restraining order. Id. at 48.
The Individual’s ex-wife could not expound on the circumstances that led to the various restraining
orders. Tr. at 45, She testified that she had “chosen to block [the events] out.” Id. at 45. The ex-
wife proclaimed that as a couple they were in a “toxic mind frame,” and she “did what [she] had
to do to separate” them. Id. She asserted that she remembers verbal altercations. Id. The ex-wife
did recall that her father was punctured by a piece of glass but continued that it would be unfair to
say the Individual stabbed her father. Id. at 47. Regarding the incident at the gym, the ex-wife
could not recall whether their child was supposed to be in her custody or the Individual’s. Id. at
49. She had no memory of the events which led to the May 2018 incident where the Individual
was charged with battery on a spouse or a July 2011 incident where the Individual was arrested
and charged with battery on a spouse. Id. at 50-51. The ex-wife avowed on three occasions that
she was being dramatic by reporting the situations to the police. Id. at 45, 47, 49.
The Individual denied any knowledge of a July 2015 charge which accused him of violating the
labor code and failing to secure payment of worker’s compensation insurance. He also denied
knowledge of a July 2016 warrant issued by the state licensing board for not complying with
regulations. Ex. 5 at 19, 21; Tr. at 58. In fact, the Individual denied having employees at that time.
Tr. at 58. He asserted that his business license is in good standing, although the business is inactive.
Id. at 59. The Individual also claimed that there were a lot of other companies in his state and in
the surrounding states with the same name as his. Id. at 60.
The Individual admitted that the July 2011 battery of a spouse/ex-spouse did occur. Ex. 5 at 23.
He claimed that he pulled her foot because she was ignoring their young son’s request for juice
and in pulling her foot, she slid off the sofa. Ex. 5 at 23. His ex-wife announced that she was
leaving, which she did, and he stayed to care for their son. Id. The following day, the police
interviewed him and arrested him for battery. Id. The Individual asserted that he paid bail, but the
charges were later dismissed. Id. at 23–24.
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Finally, regarding the Individual’s illicit drug use, in his response to the LOI, the Individual
admitted that he has used marijuana in the past, claiming he used it to help him sleep or relax in
the evening. Ex. 5 at 1. He testified at the hearing that his last usage was approximately 2016,
although he had stated to the OPM investigator that his last use was 2019. Id.
V. ANALYSIS
A. Guideline F
The LSO raised security concerns under Guideline F, based on the Individual’s financial
indebtedness and failure to file his federal and state tax returns. Conditions the Individual could
meet to mitigate security concerns under Guideline F include:
(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;
(c) the individual has received or is receiving financial counseling for the problem
from a legitimate and credible source, such as a non-profit credit counseling
service, and there are clear indications that the problem is being resolved or is under
control;
(d) the individual initiated and is adhering to a good-faith effort to repay overdue
creditors or otherwise resolve debts;
(e) the individual has a reasonable basis to dispute the legitimacy 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;
(f) the affluence resulted from a legal source of income; and
(g) the individual has made arrangements with the appropriate tax authority to file
or pay the amount owed and is in compliance with those arrangements.
Adjudicative Guidelines at ¶ 20. Subparagraph (f) does not apply in this case, because the LSO is
not alleging that the Individual showed any unexpected affluence. Regarding subparagraph (a), the
Individual’s debts were all outstanding on the date of the credit report, April 27, 2021, and the
Individual testified that he has not subsequently made any payments on the debts. Ex. 6. Thus, the
behavior is not so remote in time to satisfy subparagraph (a) above, nor is there any indication that
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the behavior will not recur. Regarding subparagraph (b), the Individual testified that because of
his separation and his excessive alimony and child support, he had to disregard all of his
outstanding obligations. However, his separation occurred in 2018 and his alimony and child
support were subsequently significantly reduced.5 The Individual testified that he did not pay the
debts with the lesser balances of $285 and $228 because he had no extra funds to pay those debts.
However, he did not contact the debtors to attempt to resolve the obligations. He also testified that
he did not believe he should resolve the charged-off obligations because it would result in “double-
dipping” by the creditor. However, the unwillingness to satisfy his debts, even if he erroneously
believes he is no longer responsible for them, shows an unwillingness to abide by rules and
regulations.
Concerning subparagraphs (c) and (d), the Individual did not present any evidence that he has
engaged in financial counseling, nor has he made any effort to resolve the outstanding debts. As
to subparagraph (e), the Individual did claim that the $228 debt was his ex-wife’s responsibility as
per the separation agreement, but he did not provide any evidence to support this claim.6 As to the
other outstanding debts, the Individual did not disavow responsibility for the debts. Finally, as to
subparagraph (g), the Individual has outstanding business and personal tax returns from 2017 and
outstanding business tax returns from 2018. He testified that he has not filed any of these returns
because he does not have the funds to pay the taxes. The Individual’s lack of funds does not excuse
his failure to file the returns and negotiate with the taxing authorities for a payment plan.
For the reasons listed above, I cannot find that the Individual has mitigated the concerns raised by
the LSO under Guideline F.
B. Guideline J
The LSO properly raised security concerns under Guideline J, based on the charges made against
the Individual as well as his pattern of criminal behavior. Conditions the Individual could meet to
mitigate security concerns under Guideline J include:
(a) so much time has elapsed since the criminal behavior happened, or it happened
under such unusual circumstances, that it is unlikely to recur and does not cast
doubt on the individual’s reliability, trustworthiness, or good judgment;
(b) the individual was pressured or coerced into committing the act and those
pressures are no longer present in the person’s life;
(c) no reliable evidence to support that the individual committed the offense; and
(d) there is evidence of successful rehabilitation; including, but not limited to, the
passage of time without recurrence of criminal activity, restitution, compliance
5 According to the Individual’s and his ex-wife’s testimony, the alimony and child support began at $4,000 and was
reduced to $1,200. Tr. at 21-23, 54.
6 The Individual was given the opportunity to submit the separation agreement into evidence following the hearing,
but he did not do so.
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with the terms of parole or probation, job training or higher education, good
employment record, or constructive community involvement.
Adjudicative Guidelines at ¶ 32. Concerning subparagraph (a), the Individual’s most recent
criminal charge is from 2019, three years prior to the hearing. A single criminal charge may be
mitigated by the passage of three years, but when I review the entire record, there are additional
criminal charges over a significant period, showing a pattern of criminal behavior. Taken together,
these charges are not so remote in time to warrant mitigation under subparagraph (a). There is no
evidence that the behavior happened under unusual circumstances or is unlikely to recur. He
admitted that he had committed the underlying behavior that led to the restraining orders and
battery charges – except for the 2018 battery charge, which he claims never occurred – but
downplayed the severity of his actions. These criminal charges concern his behavior with his ex-
wife, and he continues to interact with her due to their shared child.
I did not find either the Individual’s or his ex-wife’s testimony to be credible regarding the
circumstances of his criminal behavior. The Individual asserted that most of the domestic incidents
cited by the LSO were false or exaggerated, but his explanations were inconsistent at times. In
addition, the ex-wife could not recall the details surrounding the incidents that resulted in her
requesting the restraining orders, but none of these events occurred so far in the past as to have so
completely faded from memory.
The Individual testified that he did not remember the 2015 charge of violating the labor code and
his business license remains in good standing. In addition, he claimed there were many businesses
in his state by the same name as his company. But the Individual’s claimed ignorance of the charge
is insufficient to mitigate the concern. The charge appears under his name on the criminal
information found by the OPM and the Individual has not submitted any information, other than
his claims that his business license remains in good standing and there are numerous businesses
with the same name as his company, that the information found by the OPM was incorrect. Further,
the Individual’s other criminal charges show a pattern of behavior that shows that the Individual
lacks the ability or willingness to comply with laws, rules, and regulations, a necessity for holding
a security clearance.
Therefore, for all the reasons stated above, I find that the Individual has not mitigated the Guideline
J concerns.
VI. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Guidelines F and J 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 set forth in the Notification Letter. Accordingly, the
Individual has not demonstrated that granting his security clearance would not endanger the
common defense and would be clearly consistent with the national interest. Therefore, I find that
the Individual’s access authorization should not be granted. This Decision may be appealed in
accordance with the procedures set forth at 10 C.F.R. § 710.28.
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Janet R.H. Fishman
Administrative Judge
Office of Hearings and Appeals