PSH-12-0074

* 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: June 25, 2012 ) Case No. PSH-12-0074
)
____________________________________)
Issued: November 1, 2012
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Hearing Officer Decision
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Kimberly Jenkins-Chapman, Hearing Officer:
This Decision concerns the eligibility of xxxxxxxxxxxxxx (hereinafter referred to as “the
individual”) to hold an access authorization 1/ 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 in light of the relevant regulations, I have
determined that the individual’s access authorization should not be restored at this time.
I. Background
The individual is employed by a DOE contractor in a position that requires him to hold a DOE
security clearance. In December 2011, the Local Security Office (LSO) became aware that the
individual had been experiencing financial difficulties over a number of years and, on April 20,
2012, the LSO conducted a personnel security interview (PSI) with him. DOE Exh. 10.
In May 2012, the LSO sent a letter (Notification Letter) advising the individual that it possessed
reliable information that created substantial doubt regarding his eligibility to hold an access
authorization. In an attachment to the Notification Letter, the LSO explained that the derogatory
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.
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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 receipt of the Notification Letter, the individual filed a request for a hearing. The LSO
transmitted the individual’s hearing request to the Office of Hearings and Appeals (OHA), and the
OHA Director appointed me as the Hearing Officer in this case. At the hearing that I convened, the
individual presented the testimony of four witnesses: two supervisors, a co-worker and his girlfriend.
He also testified on his own behalf. The DOE counsel did not present any witnesses. The DOE and
the individual submitted a number of written exhibits prior to the hearing.
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 denial”); 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
his 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.
B. Basis for the Hearing Officer’s Decision
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
2/ Criterion L relates, in relevant part, to information that a person has “[e]ngaged 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).
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consistent with the national interest. 10 C.F.R. § 710.7(a). I am instructed by the regulations to
resolve any doubt as to a person’s access authorization in favor of the national security. Id.
III. Finding of Fact
The individual’s April 2012 PSI and April Letter of Interrogatory revealed that the individual has
a number of delinquent debts including a collection account in the amount of $176, a charged-off
account in the amount of $2,182 and another delinquent account in the amount of $855. See DOE
Exh. 1. The individual’s PSI also revealed that in February 2010, a civil judgment was entered
against the individual regarding one of these accounts. Id. In addition, the individual owes $3,100
in delinquent State tax debt for 2008, 2010 and 2011. Id. He also owes $9,000 in delinquent Federal
tax debt for the same years. Id.
During his April 2012 PSI, the individual admitted that he is currently not living within his means
as his monthly net income is $2,800 and his monthly expenses are $3,023 excluding his mortgage
which was 30 days past due at the time. Id. Also, during a PSI conducted on October 25, 2005, the
individual was made aware of and acknowledged his understanding of DOE’s concerns regarding
financial responsibility. Id. Despite his acknowledgment and understanding, he continued to be
financially irresponsible. Id. In addition, both the individual’s 2005 and 2012 PSIs revealed that
the individual had filed for bankruptcy in October 1992. Id.
IV. Analysis
I have thoroughly considered the record in 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
prescribed in 10 C.F.R. § 710.7(c). 3/ After due deliberation, I have determined that the individual’s
access authorization should not be restored. I cannot find that restoring the individual’s access
authorization would not endanger the common defense and security and would be clearly consistent
with the national interest. 10 C.F.R. § 710.27(a). The specific findings that I make in support of this
decision are discussed below.
A. Derogatory Information and Associated Security Concerns
As previously noted, the LSO cites one potentially disqualifying criterion as the basis for suspending
the individual’s security clearance, Criterion L.
3/ Those factors include the following: the nature, extent, and seriousness of the conduct, the circumstances
surrounding her conduct, to include knowledgeable participation, the frequency and recency of her conduct, the age and
maturity at the time of the conduct, the voluntariness of her participation, the absence or presence of rehabilitation or
reformation and other pertinent behavioral changes, the motivation for her conduct, the potential for pressure, coercion,
exploitation, or duress, the likelihood of continuation or recurrence, and other relevant and material factors.
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To support its reliance on Criterion L, the LSO states that the individual has established a pattern
of financial irresponsibility and has demonstrated an unwillingness or inability to satisfy his debts.
The LSO cites a number of delinquent outstanding debts. The individual’s failure or inability to live
within his means, to satisfy his debts and to meet his financial obligations, raises a security concern
under Criterion L, because his actions may indicate poor self-control, lack of judgment, or
unwillingness to abide by rules and regulations, all which also call into question the individual’s
reliability, trustworthiness and ability to protect classified information. See Guideline F of the
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).
B. Mitigating Evidence
During the hearing, the individual acknowledged his pattern of financial irresponsibility and failure
to meet his financial obligations. The individual’s tax problems began in 2008 when he withdrew
money from a retirement account to pay down debt and did not claim it on this taxes. Transcript of
Hearing (Tr) at 62. He subsequently began owing money to the IRS. According to the individual,
the IRS garnished his check in 2011 when he did not respond to a notification from them. Id. at 63.
The individual asserted that he did not receive the letter from the IRS because his girlfriend’s
daughter unintentionally and without the individual’s knowledge placed the letter in a drawer. Id.
at 64. Once his check was garnished, the individual asserts that he fell behind on his bills. Id. at 65.
The individual testified that in the past he was “not good with his money,” but he is now back on
track and living within his means. Id. at 53, 54 and 57. He testified that after refinancing his car
and withdrawing money from the refinance, he has been able to pay off his delinquent debt and pay
down about $4,000 in back taxes. Id. at 50. The individual provided documentary evidence
indicating that his delinquent accounts have been paid, his State taxes have been paid, and that he
is now on a payment plan with the IRS to pay off the remaining balance of his tax liability. See
Indiv. Exh. A-D. The individual’s documentary evidence also indicates that the individual paid off
his delinquencies three to four months prior to the hearing. In addition, the individual testified that,
while he has the ability to pay his own bills, he will be transferring his check to his girlfriend’s
account to manage so that he can be assured that his bills are paid in a timely fashion. Id. at 54.
C. Hearing Officer Evaluation of Evidence
The key issue under Criterion L is whether the individual has brought forward sufficient evidence
to demonstrate that he is reliable and trustworthy, and that he is no longer subject to pressure,
coercion, exploitation or duress. For the reasons set forth below, I find that the individual has not
provided sufficient information to resolve the Criterion L concerns at issue.
During the hearing, the individual acknowledged his pattern of financial irresponsibility, but stated
that he is now back on track, has paid off his delinquent accounts and currently has a payment plan
with the IRS to resolve his tax liability. I commend the individual for taking the initiative to try to
pay off all of his outstanding debts and to maintain a payment plan with the IRS. In prior cases
involving financial irresponsibility, Hearing Officers have held that “[o]nce an individual has
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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. PSH-11-0015
(2011); Personnel Security Hearing, Case No. TSO-1078 (2011); Personnel Security Hearing, Case
No. TSO-1048 (2011); Personnel Security Hearing, Case No. TSO-0878 (2010); Personnel Security
Hearing, Case No. TSO-0746 (2009). Here, it is simply too early for me to find that the individual
has demonstrated a sustained pattern of financial responsibility for a significant period of time
relative to his lengthy past period of financial irresponsibility. While the individual maintains that
he is now living within his means, he only recently, three to four months prior to the hearing, began
to rectify his financial issues. Therefore, his period of reformation has only recently begun. Given
the individual’s pattern of financially irresponsible behavior, I am not yet convinced that the chances
of a return to his previous behavior are acceptably low. Based on the foregoing, I find that the
individual has not yet mitigated the security concerns associated with Criterion L.
VI. Conclusion
In the above analysis, I have found that there was sufficient derogatory information in 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 presented at the hearing, I find that the individual has
not brought forth convincing evidence to mitigate the security concerns associated with Criterion
L. I therefore cannot find that restoring the individual’s access authorization would not endanger
the common defense and security and would be consistent with the national interest. Accordingly,
I find 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.
Kimberly Jenkins-Chapman
Hearing Officer
Office of Hearings and Appeals
Date: November 1, 2012