PSH-11-0026

* 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 28, 2011 )
) Case No.: PSH-11-0026
__________________________________________)
Issued : March 27, 2012
______________________
Hearing Officer Decision
______________________
Valerie Vance Adeyeye, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXXXXX (hereinafter referred
to as “the individual”) to hold an access authorization1 under the Department of Energy’s
(DOE) regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled, “General Criteria
and Procedures for Determining Eligibility for Access to Classified Matter or Special
Nuclear Material.” As discussed below, after carefully considering the record before me,
I have determined that the DOE should not restore the individual’s access authorization at
this time.
I. Background
The individual works for a DOE contractor and was granted a DOE access authorization
in 2007 after a Local Security Office (LSO) mitigated some derogatory information,
including concerns about the individual’s finances. Issues regarding the individual’s
finances surfaced again in 2010. After two Personnel Security Interviews, one in 2010
and the other in 2011, failed to resolve the derogatory information regarding the
individual’s finances, the LSO suspended the individual’s access authorization and
sought permission to initiate administrative review proceedings.
1 Access authorization is defined 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). Such authorization will be referred to variously in this Decision as access authorization or
security clearance.
2
In October 2011, the LSO sent a letter (Notification Letter) to the individual advising her
that it possessed reliable information that created a substantial doubt regarding her
continued eligibility to hold a security clearance. In an attachment to the Notification
Letter, the LSO explained that the derogatory information fell within the purview of one
potentially disqualifying criterion set forth in the security regulations at 10 C.F.R. §710.8,
subsection (l) (hereinafter referred to as Criterion L).2
Upon her receipt of the Notification Letter, the individual exercised her right under the
Part 710 regulations by requesting an administrative review hearing, and I was appointed
the Hearing Officer in the case. At the hearing which I conducted, the individual was the
only witness to testify. Both parties submitted exhibits in the case. The hearing transcript
in the case will be cited as “Tr.” followed by the relevant page number.
II. Regulatory Standard
A. Individual’s Burden
A DOE administrative review proceeding under Part 710 is not a criminal matter, where
the government has the burden of proving the defendant guilty beyond a reasonable
doubt. Rather, the standard in this proceeding places the burden on the individual because
it is designed to protect national security interests. This is not an easy burden for the
individual to sustain. 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
restoring her 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 her 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.
B. Basis for the Hearing Officer’s Decision
2 Criterion L relates in relevant part to information that a person has “[e]engaged in any unusual conduct or
is subject to any circumstances which tend to show that the individual is not honest, reliable, or
trustworthy; or which furnishes reason to believe that the individual may be subject to pressure, coercion,
exploitation, or duress which may cause the individual to act contrary to the best interests of the national
security . . .” 10 C.F.R. § 710.8(l).
3
In personnel security cases arising under Part 710, it is my role as the Hearing Officer 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); Revised Adjudicative Guidelines for Determining Eligibility for Access to
Classified Information issued on December 29, 2005, by the Assistant to the President for
National Security Affairs, The White House (Adjudicative Guidelines). I am instructed
by the regulations to resolve any doubt as to a person’s access authorization eligibility in
favor of the national security. Id.
III. The Notification Letter and the Security Concerns at Issue
The LSO recites several allegations to support its reliance on Criterion L in this case: (1)
a judgment in the amount of $4,477 against the individual; (2) 24 delinquent accounts
totaling $24,639; (3) the individual’s failure to resolve her financial delinquencies despite
representations to do so in personnel security interviews; and (4) the individual received a
$160,000 inheritance between 2007 and 2009 yet during that same period accumulated a
judgment of $7,440, 11 collection accounts totaling $10,529, and four charge-off
accounts totaling $9,328. I find that the LSO properly invoked Criterion L in this case
based on my review of the allegations cited in the Notification Letter. The individual’s
failure or inability to live within her means, to satisfy her debts and to meet her financial
obligations may indicate poor self-control, lack of judgment, or unwillingness to abide by
rules and regulations, all which call into question her reliability, trustworthiness and
ability to protect classified information. See Guideline F of the Adjudicative Guidelines.
IV. Findings of Fact and Analysis
As an initial matter, the individual does not dispute any of the allegations contained in the
Notification Letter. Instead, she offers several explanations for her financial plight. She
claims that she cared for her father who died of cancer in 2006, that she was not able to
work as much overtime as she would have liked because she ruptured a disk in her spine,
and that she had to care for her adult daughter who suffers from aplastic anemia. Tr. at
12. She admits, however, that she mismanaged her money and overextended herself
financially. Id. at 13, 15.
At the hearing, the individual suggested that her 2006 divorce may also have contributed
to her financial difficulties because she was raising one of her four daughters on her own.
However, she revealed at the hearing that she received a parcel of land in the divorce
proceeding from which she took $38,500 in equity to pay her bills. Id. at 32. She also
admitted that her ex-husband is paying some of her adult daughter’s expenses until the
daughter receives social security benefits. Id. at 40. The individual also admitted that she
received an inheritance in the amount of $160,000 in 2007. Under questioning, the
individual stated that she had spent the entire $160,000. Id. at 31. Among the items that
she purchased with her inheritance were $39,000 on a new car, $20,000 on new
furnishings for a 4,000 square foot house, an undetermined amount for clothing, $13,000
to rent a house for six months, $11,000 for lawn mowing equipment, $12,000 in
4
landscaping materials so her new husband could start a landscaping business, and
miscellaneous items for one of her daughter’s apartments. Id. at 31-34, 61-63. The
individual admitted at the hearing that she spent her entire inheritance even though she
had an outstanding judgment of $7,440 pending against her at the time. Id. at 31, 34-37,
63.
As for why she did not contact her creditors and attempt to resolve her debts despite
assuring the LSO that she would do so, the individual provided two explanations. First,
she claimed that she thought she would be receiving an additional inheritance but it was
“not coming through.” Id. at 30. Second, she stated that she had missed a lot of work due
to her back ailment. Id. at 28-30. Implicit in both of these explanations is that she did
not have the funds to resolve her debts at the time.
The individual claimed at the hearing that she will not incur any more debt; that she will
not buy anything new; and that she currently does not have any credit cards. Id. at 42. She
also revealed that four days before the hearing, she filed a Chapter 13 Bankruptcy
Petition. Id. at 7-9.3 The individual expects that the Bankruptcy Trustee will propose a
five-year payment plan so that she can repay her creditors over that time period. Id. at 9.
However, due to the recency of the bankruptcy filing, no details relating to the process
were known as of the date of the hearing. The individual testified that it is her intention to
pay all her debts through the bankruptcy process nevertheless. Id. at 55. She
acknowledged the DOE Counsel’s concern that she had previously promised the LSO on
other occasions that she would pay her creditors but had not done so. Id. She tendered
into the record a monthly budget which she created as part of the credit counseling course
requirement of her bankruptcy filing. (Ex. G).
I have thoroughly considered the record of this proceeding, including the submissions
tendered in this case and the individual’s testimony at the hearing. In resolving the
question of the individual’s eligibility for access authorization, I have been guided by the
applicable factors prescribed in 10 C.F.R. § 710.7(c)4 and the Adjudicative Guidelines.
After due deliberation, I have determined that the individual’s access authorization
should not be restored at this time. I cannot find that restoring the individual’s DOE
security clearance will not endanger the common defense and security and is clearly
consistent with the national interest. 10 C.F.R. § 710.27(a).
As an initial matter, I am not able to mitigate the individual’s financial problems on the
bases that the behavior happened so long ago, was infrequent, or occurred under such
circumstances that it is unlikely to recur. Guideline F at 20 (a). In fact, the behavior was
3 The DOE provided documents relating to the individual’s Chapter 13 filing after the hearing which
corroborated the individual’s testimony.
4 Those factors include the following: the nature, extent, and seriousness of the conduct, the circumstances
surrounding the conduct, to include knowledgeable participation, the frequency and recency of the conduct,
the age and maturity at the time of the conduct, the voluntariness of his participation, the absence or
presence of rehabilitation or reformation and other pertinent behavioral changes, the motivation for the
conduct, the potential for pressure, coercion, exploitation, or duress, the likelihood of continuation or
recurrence, and other relevant and material factors.
5
recent, and spanned from at least 2006 until the present. While the individual did suffer
several stressors that might have distracted her from attending to her debts in a timely
manner, it is significant, in my view, that she also inherited $160,000 in 2006, a sum that
could have been used to resolve all her outstanding debt. Instead, she spent her
inheritance largely on purchasing discretionary items.
I also cannot find that the debts the individual incurred were largely beyond her control.
Guideline F at 20 (b). Instead, it appears that she was living beyond her means when her
father and daughter became ill in that she was relying on overtime to meet her basic
expenses. In any event, the $160,000 inheritance made it very much “within her control”
to pay off all her financial obligations.
As for Guideline F at 20 (c), it is true that the individual recently received counseling for
her financial difficulties as a pre-condition of filing for bankruptcy. However, it is
significant that the individual also received credit counseling and developed a budget in
2007 (Tr. at 36, Ex . F), none of which resolved her financial problems. In the end, I am
not able to find that the individual has her financial problems under control when she has
not yet emerged from the jurisdiction of the bankruptcy court and demonstrated a
significant period of time living within her means. In our prior cases involving financial
irresponsibility, Hearing Officers have held that “[o]nce an individual has demonstrated a
pattern of financial irresponsibility, he or she must demonstrate a new, sustained pattern
of financial responsibility for a period of time that is sufficient to demonstrate that a
recurrence of the past pattern is unlikely.” See Personnel Security Hearing, Case No.
TSO-1048 (2011); Personnel Security Hearing, Case No. TSO-0878 (2010), Personnel
Security Hearing, Case No. TSO-0746 (2009), Personnel Security Hearing, Case No.
TSO-0732 (2009).5 Here, there simply is not enough time for me to determine whether
the individual will remain financially responsible after she has completed being
monitored by the bankruptcy court for compliance with a repayment plan.6
With regard to Guideline F at 20(d), I cannot find at this time that she has made a good
faith effort to resolve her debts. Guideline F at 20(e) is not applicable in this case as the
individual is not disputing the legitimacy of any of the past due debts.
In the end, I find that the individual has not mitigated the security concerns connected to
her pattern of financial irresponsibility.
V. Conclusion
In the above analysis, I have found that there was sufficient derogatory information in the
possession of the DOE that raises serious security concerns under Criterion L. After
considering all the relevant information, favorable and unfavorable, in a comprehensive
common-sense manner, including weighing all the testimony and other evidence
5 OHA decisions are available on the OHA website at www.oha.doe.gov. A decision may be accessed by
entering the case number in the search engine at www.oha.gov/search.htm.
6 In fact, as of the date of the hearing, no repayment plan had been established. If the individual’s belief is
correct, that repayment period will be five years.
6
presented at the hearing, I have found that the individual has not brought forth sufficient
evidence to mitigate the security concerns at issue. I therefore cannot find that restoring
the individual’s access authorization will not endanger the common defense and is clearly
consistent with the national interest. Accordingly, I have determined that the individual’s
access authorization should not be restored. The parties may seek review of this Decision
by an Appeal Panel under the regulations set forth at 10 C.F.R. § 710.28.
Valerie Vance Adeyeye
Hearing Officer
Office of Hearings and Appeals
Date: March 27, 2012