PSH-12-0076

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-12-0076
)
____________________________________)
Issued: October 26, 2012
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Hearing Officer Decision
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Kimberly Jenkins-Chapman, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXX (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 granted.
I. Background
The individual is an applicant for a DOE security clearance. In March 2012, as part of a
background investigation, the Local Security Office (LSO) conducted a Personnel Security
Interview (PSI) of the individual to address concerns about the individual’s falsification and
financial irresponsibility. On May 11, 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 information fell within the purview of two potentially disqualifying
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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criteria set forth in the security regulations at 10 C.F.R. § 710.8, subsections (f) and (l) (hereinafter
referred to as Criteria F and L, respectively). 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 his own testimony. The DOE counsel did not present any witnesses. The DOE
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 granting
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 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
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
2/ Criterion F concerns information that the individual has “misrepresented, falsified, or omitted significant information
from a Personnel Security Questionnaire or a Questionnaire for Sensitive Positions, Personnel Qualification Statement,
a Personnel Security Interview, written or oral statement made in response to an official inquiry on a matter that is
relevant to a determination regarding eligibility for DOE access authorization . . .” 10 C.F.R. § 710.8(f). 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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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). 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
On November 9, 2011, the individual signed a Questionnaire for National Security Positions (QNSP)
where he listed a delinquent account for $15,000 as satisfied. DOE Exh. 1. However, the company
had filed a judgment against him for the amount owed. The individual explained that he listed the
account as satisfied because he did not intend to pay the debt. Id.
In addition to the individual’s misrepresentation on his QNSP, the individual, in his March 2012
PSI, admitted that he currently owes up to $15,000 on a judgment filed against him by a credit card
company. Id. He also admitted that he is currently past due up to $23,000 on a home equity loan
and admitted that he stopped paying his mortgage in December 2010. He did not try working with
the creditor before the home went into foreclosure. The individual further admitted that he currently
owes $13,179.80 on a judgment filed against him in 2009 for rent owed and owes $1,000 on a
judgment filed against him for breaking a lease agreement. Despite receiving notifications from the
creditors regarding the debt, the individual has not responded to the notification and has no intention
to pay. Id. The individual currently owes approximately $172,108 to various creditors. 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 granted at this time. I cannot find that granting 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 two potentially disqualifying criteria as bases for denying the
individual’s security clearance, i.e., Criteria F and L. To support its reliance on Criterion F, the LSO
states that on November 9, 2011, the individual misrepresented information on a QNSP regarding
a delinquent credit card account.
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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From a security standpoint, false statements made by an individual in the course of an official
inquiry regarding a determination of eligibility for DOE access authorization raise serious issues of
honesty,
reliability and trustworthiness. The DOE security program is based on trust, and when a security
clearance holder breaches that trust, it is difficult to determine to what extent the individual can be
trusted again in the future. See Guideline E of the 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).
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 totaling $172,108 and the individual’s
admission that he has made no attempts to satisfy these debts. Failure or inability to satisfy debts
and meet financial obligations 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, Adjudicative
Guidelines.
B. Mitigating Evidence
At the hearing, the individual addressed his misrepresentation on his November 2011 QNSP. He
testified that when he completed his 2011 QNSP he initially stated that there was “no action taken”
on the form with respect to a delinquent credit card account in the amount of $15,000. Transcript
of Hearing (Tr.) at 25. The individual further testified that after the LSO advised him that his
response would not be acceptable, he indicated “debt satisfied” on the form. According to the
individual, the debt was a loan that had been charged off and which he believed meant the debt was
“technically” satisfied. He testified that he did not intentionally omit or misrepresent information
on his QNSP. Id. at 37.
During the hearing, the individual acknowledged his pattern of financial irresponsibility and failure
to meet his financial obligations and attempted to address these issues. Id. at 13. He testified that
in 2009, he and his wife made a conscious decision to allow his home to go into foreclosure. The
individual explained that he had purchased a house in 2003 when his job relocated. Id. After getting
married in 2008, his wife lost her job and she decided she wanted to live in a different state closer
to her daughter. Id. The individual, who mostly traveled for work, testified that he could not
financially maintain three households (the home he lived in while working, the home his wife lived
in and another home he owned). Id. He testified that he thought about placing the home up for sale,
but at the time the real estate market was on the downturn and he did not want to be an absentee
landlord since his job required him to travel. Id. With respect to a $13,179 judgment filed against
the individual for rent owed, the individual explained that in 2009 he executed a lease for a year with
a landlord, and after six months, the landlord asked him and his wife to move out. According to the
individual, the landlord and her husband wanted to move back in the property. Id. at 16. Because
of his work, the individual testified that it was not feasible for he and his wife to look for another
place to live and that it took six months to find another home. Id. Soon after, the landlord sued the
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individual for back rent. Id. at 18. During the hearing, the individual testified that this judgment
is in dispute and he is trying to determine what needs to be done to resolve this issue. As of the date
of the hearing, the individual has still not paid the judgment. Id. at 20.
As for the other delinquent debt cited by the LSO in the notification letter, including a past due
$23,000 home equity loan and the $15,000 delinquent credit card account, the individual
acknowledged that he had not made arrangements to pay the debt. Id. at 22. With respect to the
credit card account, the individual testified that before the account went into default, he tried to
make some payments, but the interest rate was raised to 40 percent and he could no longer make
payments. Id. at 21. He reiterated that he assumed that the debt had been charged off and stated that
he had no intention of paying it. Id. Likewise, with respect to the home equity loan, the individual
testified that since the equity line was based on the foreclosed property, he assumed that the debt had
been charged off and had no intention to pay it because no one had contacted him to pay it. Id.
When questioned about a 1998 judgment filed against him for $1,000 for breaking a lease
agreement, the individual stated that he “must have paid it,” but stated that he has no documentation
that it was paid. After the hearing, the individual submitted documentation stating that he had
recently contacted these companies, but was unable to reach a contact person who could set up a
payment plan or in the case of the $1,000 judgement verify that the debt had been plan. He stated
that he was, however, successful in setting up a $25 a month payment plan for a judgment filed
against him for rent owed, and he indicated that he has paid two smaller debts, $69 and $30.45. He
also submitted a monthly budget. Ind. Post-Hearing Submission, Exh. A.
C. Hearing Officer Evaluation of Evidence
1. Criterion F
During the hearing, the individual maintained that he did not intentionally misrepresent information
regarding a delinquent account for $15,000 on his 2011 QNSP. However, the testimonial evidence
adduced at the hearing does not convince me that the individual did not deliberately misrepresent
this information on his QNSP. The individual testified that, since the loan was unsecured and
charged off, he believed that the debt was “technically” satisfied. I did not find this testimony to be
credible. During the hearing, the individual acknowledged that he allowed his credit card to default
and that he stopped making payments when the credit company raised the interest rate. It is difficult
to believe the individual’s interpretation of a debt being “satisfied” when it is unsecured and charged
off by the creditor. Rather, I believe the individual fully understood the consequences of the credit
card going into default and had no intention of paying it based on his personal circumstances at the
time. In the end, I find the requisite element of “deliberateness” has been met under Criterion F in
this case.
The key issue under Criterion F is whether the individual has brought forward sufficient evidence
to demonstrate that he can now be trusted to be consistently honest and truthful with the DOE. In
considering this question, I found that the nature of the individual’s misrepresentation was serious.
The individual’s lack of candor concerning his financial problems could increase his vulnerability
to coercion or blackmail and raises important security concerns. The DOE must rely on individuals
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who are granted access authorization to be honest and truthful. Hearing Officers have generally
taken into account a number of actors, including whether the individual came forward voluntarily
to renounce his falsifications, the timing of the falsification, the length of time the falsehood was
maintained, whether a pattern of falsification is evident, and the amount of time that has transpired
since the individual’s admission. Personnel Security Hearing, Case No. TSO-0307 (2007), and
cases cited therein. 4/ None of these mitigating factors, nor any of those set forth in the relevant
Adjudicative Guideline, Adjudicative Guidelines at Guideline E, apply in the present case.
Considering this, and the entirety of the record, I must conclude that the very serious concerns raised
under Criterion F have not been resolved. Adjudicative Guidelines at Guideline E.
2. Criterion L
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.
Although the individual has initiated an effort to resolve his delinquent debt, the individual’s
behavior with respect to his financial issues is recent and frequent. During the hearing, the
individual acknowledged his pattern of financial irresponsibility, but stated that his life
circumstances, i.e., being unable to financially maintain three households or afford high interest
rates, did not allow him to address his delinquencies. The individual further acknowledged that he
had no intention to pay debt that was unsecured and had been charged off by the credit companies.
Although he later, during the hearing, stated that he would try to contact the companies and attempt
to find out what he needs to do to resolve the delinquencies. As of the date of the hearing, the
individual had paid and resolved only a couple of smaller delinquencies cited by the LSO. Despite
the individual’s acknowledgment of his financially irresponsible behavior and his assurances that
he is now living within his means, I believe the individual’s recent efforts to resolve his debt have
not yet withstood the test of time. Furthermore, given the individual’s pattern of financially
irresponsible behavior, I am not convinced that the chances of a return to his previous behavior are
acceptably low. After considering the “whole person,” I am not convinced that the DOE can rely
on the individual’s ability to make sound judgment calls regarding the safeguarding of classified
information. See Adjudicative Guidelines at (2)a. I therefore cannot find that the individual has
sufficiently mitigated the LSO’s concerns under Criterion L.
VI. 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 Criteria F and L. After considering all the
relevant information, favorable and unfavorable, in a comprehensive common-sense manner,
4/ Decisions issued by the Office of Hearings and Appeals (OHA) are available on the OHA website
located at http://www.oha.doe.gov. The text of a cited decision may be accessed by entering the case number
of the decision in the search engine located at http://www.oha.doe.gov/search.htm.
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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 Criteria F and L. I therefore cannot find that granting 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 granted. 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: October 26, 2012