PSH-24-0030

*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: December 15, 2023 ) Case No.: PSH-24-0030
)
__________________________________________)
Issued: March 18, 2024
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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
The Individual has been employed by a DOE contractor in a position that requires her to hold an
access authorization. Exhibit (Ex.) 1. The Individual completed a Questionnaire for National Security
Positions (QNSP). Ex. 10. When filling out her QNSP, the Individual indicated that she had
outstanding, delinquent debt. Id. at BATES 142–44.2 The LSO subsequently asked the Individual to
complete a Letter of Interrogatory in July of 2023 (July LOI). Ex. 8. In the July LOI, the Individual
indicated that she had not filed her state or federal tax return for 2022 because she was waiting on her
husband to obtain information from closing his business. Id. at 40. In the July LOI, the Individual
also admitted that she had additional outstanding, delinquent debt that she had not reported in her
QNSP and indicated she intended to make arrangements to pay off all of her debts after her car loan
was paid off “in a couple of months.” Id. at 37–39. The Individual completed a second LOI in
September of 2023 (September LOI) in which she confirmed that she had still not filed her state or
federal tax returns for 2022. Ex. 7 at 31.
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 The exhibits submitted by DOE were Bates numbered in the upper right corner of each page. This Decision will refer to
the Bates numbering when citing to exhibits submitted by DOE.
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The LSO subsequently issued the Individual a Notification Letter advising her that it possessed
reliable information that created substantial doubt regarding her eligibility for access authorization.
Ex. 1 at 7. In a Summary of Security Concerns (SSC) attached to the letter, the LSO explained that
the derogatory information raised security concerns under Guideline F of the Adjudicative
Guidelines. Id.
The Individual exercised her right to request an administrative review hearing pursuant to 10 C.F.R.
Part 710. The Director of the Office of Hearings and Appeals (OHA) appointed me as the
Administrative Judge in this matter, and I conducted an administrative hearing. The LSO submitted
ten exhibits (Ex. 1–10). The Individual submitted eleven exhibits (Ex. A–K). The Individual testified
on her own behalf and her husband testified. Hearing Transcript, Case No. PSH-24-0030 (Tr.) at 10,
24.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
As previously mentioned, the Notification Letter included the SSC, which sets forth the derogatory
information that raised concerns under Guideline F about the Individual’s eligibility for access
authorization. Guideline F specifically states that “[i]nability to satisfy debts” and “[f]ailure to file or
fraudulently filing annual Federal, state, or local income tax returns or failure to pay annual Federal,
state, or local income tax as required” are conditions that could raise a security concern. Adjudicative
Guidelines at ¶ 19. In citing Guideline F, the LSO relied upon the Individual’s failure to file her state3
and federal tax returns for 2022 and her outstanding, delinquent debt. Ex. 1 at 5–6. The LSO listed
her delinquent debts as 1) a debt to a bank for $679; 2) a debt to an investment firm for $633; 3) a
debt to organization for $631; 4) a debt to credit management for $423; 5) a debt to store for $36; 6)
a debt to holding company for $2,708; and 7) a repossession account for an auto loan account with a
$27,408 balance. Id. at 5–6.
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 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).
An 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). An individual is afforded a full
3 The SSC claimed that she had not paid her State One taxes when she does not live in that state. The Individual testified
and the counsel for the LSO agreed that it was a mistake and in fact she had not filed her State Two taxes. Tr. at 28.
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opportunity to present evidence supporting his or her 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. Id. § 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
In the course of conducting the Individual’s background investigation, it was discovered that the
Individual had four collection accounts, two charge off accounts, and one repossession account,
totaling $32,918 in outstanding delinquent debt. Ex. 6.
The Individual’s husband testified that prior to the COVID pandemic, he owned a business at which
the Individual worked. Tr. at 13. He asserted that he closed the business in October 2021. Id. at 16.
When he owned his own business, he was earning “several thousand” dollars a month. Id. at 18.
Following the closing of his business, he earned approximately $600 a week. Id. The Individual’s
husband testified that due to the decrease in income, their debts remained unpaid. Id. He testified that
the van that was repossessed was a business vehicle, and they were hoping to sell it, but it was
repossessed before they could do so. Id.
The Individual confirmed that her husband closed his business in October 2021 due to the COVID
pandemic. Id. at 24. She stated that she and her husband did not file their 2022 taxes, either state or
federal, because they did not have all the paperwork in time. Id. at 27. The Individual asserted that
they have since filed both tax returns, and she provided copies of the returns.4 Id. at 28; Ex. I; Ex. L.
When questioned whether her tax preparer suggested filing an extension for her 2022 taxes, she stated
that she did not take the records to the tax preparer until after the date to file had passed. Tr. at 30.
The Individual reviewed the debts listed on the SSC and indicated that none of them have been paid.
Id. at 31–34. She did not dispute the legitimacy of any of the debts. Id. The Individual stated, and the
evidence shows, that the amount due for the auto loan for the company van has been reduced by
approximately $20,000, from $27,408 at the time of the SSC to $7,762.77. Id. at 33; Ex. 1 at 6; Ex.
J. The Individual testified that the lender sold the vehicle at auction, thereby reducing the amount
owed. Tr. at 34. She stated that she contacted the lender to make payment arrangements for the
remaining amount, but the payment amount the lender wanted was “still honestly too much for me to
pay, whether I paid it in three payments or six payments. That was what they . . . [offered.]” Id.
However, she continued that the lender offered her options of making voluntary payments, which
would reduce the amount owed. Id. But she stressed that she has not made any payments toward the
balance of the loan or any of her outstanding debts. Id. The Individual stated that when her present
car loan is paid off, she intends to address the outstanding debts, but has made no attempt to contact
the creditors of the other debts or make a payment. Id. at 31, 32, 33, 38. She indicated that she does
not know when the car loan will be satisfied. Id. at 35.
4 Although not mentioned in the SSC, the Individual has apparently not filed her 2021 federal tax return. Ex. H. When
questioned at the hearing about the lack of evidence that she filed the 2021 federal tax return, the Individual indicated that
she was surprised that it had not be filed and said she plans to ask her tax preparer about it when she takes her 2023 tax
information to them. Tr. at 41.
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The Individual testified, and her husband confirmed, that they did not have any savings or money in
retirement either before or after the pandemic. Id. at 12, 37, 39. The Individual’s husband stated that
they are “living paycheck to paycheck.” Id. at 22. The Individual testified that “[w]e’re not the greatest
at saving.” Id. at 38.
V. ANALYSIS
Conditions that could 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.
The Individual provided evidence that she has filed her 2022 federal and state taxes, receiving refunds
for both, thereby satisfying condition (g) regarding her tax returns. I find that she mitigated the
concern raised by her failure to file her 2022 tax returns.
Although the Individual has filed her 2022 federal and state taxes since she received the SSC, she has
made little attempt to address the outstanding debt. She contacted the lender for the van auto loan but
was unable to meet the payments it wanted. The Individual stated that she has not made any attempts
to make voluntary payments as suggested by the lender. She did not contact any of the other creditors
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to attempt to make payments, essentially ignoring the debts. Further, the Individual did not provide
any plan for paying for the outstanding debts other than stating that she will begin paying them when
her current car loan is satisfied. But she could not state when that loan would be discharged. Further,
the Individual did not offer any plan to responsibly deal with unexpected costs in the future. The
Individual’s financial difficulties began with the closing of her husband’s business, which she and
her husband attributed to the COVID pandemic. Although it could be argued that the business closing
because of the pandemic satisfied condition (a) above, I am reluctant to make that finding, because
the Individual has made no attempt to contact most of the creditors even two years after the debts
were incurred. Although she acknowledged that the money was owed, she testified that she had not
contacted any of the creditors, except the auto loan lender. Further, even if the Individual could argue
under condition (b) that the outstanding debt was caused by the pandemic, I cannot say she acted
responsibly by ignoring the debt since that time. At this point, the Individual has not made any
attempt, other than contacting the auto loan lender, to satisfy the other creditors or enter into any kind
of arrangement, which makes condition (c) inapplicable since it requires both financial counseling
and a clear indication that the financial obligations listed in the SSC are being resolved or under
control. The Individual admitted that all of the debts are legitimate, which would eliminate condition
(e) as a mitigating factor. Therefore, I cannot find that she has mitigated the concerns raised by the
LSO under conditions (a), (b), (c), (d), or (e).5
Accordingly, I find that none of the mitigating conditions have been satisfied in regard to the
Individual’s outstanding debt, and that the Individual has not resolved the security concerns regarding
those debts asserted by the LSO under Guideline F.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
DOE to raise security concerns under Guideline F of the Adjudicative Guidelines. After considering
all 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 cannot find that
the Individual has brought forth sufficient evidence to resolve the security concerns set forth in the
Summary of Security Concerns. Accordingly, I have determined 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.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals
5 The LSO did not allege that the Individual had any unexplained affluence, making condition (f) inapplicable to this
case.