PSH-13-0001

* 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: January 7, 2013 ) Case No.: PSH-13-0001
)
__________________________________________)
Issued : May 1, 2013
______________________
Hearing Officer Decision
______________________
Janet R. H. Fishman, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXX (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 fully discussed below, after carefully considering the record before
me in light of the relevant regulations and Adjudicative Guidelines, 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. For several periods of his adult life, the Individual has
experienced financial difficulties, which resulted in the Local Security Office (LSO)
conducting three personnel security interviews with him.
In September 2012, the LSO sent a letter (Notification Letter) to the Individual advising
him that it possessed reliable information that created a substantial doubt regarding his
eligibility to hold a security clearance. In an attachment to the Notification Letter, the
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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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 his receipt of the Notification Letter, the Individual exercised his right under the
Part 710 regulations by requesting an administrative review hearing. The Director of the
Office of Hearings and Appeals (OHA) appointed me the Hearing Officer in the case and
I subsequently conducted an administrative hearing in the matter. At the hearing, the LSO
presented no witnesses; the Individual presented his own testimony. The LSO submitted
20 exhibits into the record; the Individual tendered 12 exhibits.
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 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). Thus, 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
2 Criterion L relates 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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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 eligibility in favor of the national security. Id.
III. The Notification Letter and the Security Concerns at Issue
As previously noted, the LSO cites one criterion as the basis for suspending the
Individual’s security clearance, Criterion L. To support its allegations, the LSO lists the
Individual’s 2004 bankruptcy and numerous outstanding debts, dating back to 2004. The
Individual’s failure to live within his means, to satisfy his debts, and to meet his financial
obligations raise 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 of which can raise questions about the Individual’s reliability, trustworthiness and
ability to protect classified information.3/ See Guideline F 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). Moreover, a person who is financially
overextended is at risk of having to engage in illegal acts to generate funds. Id.
IV. Findings of Fact
The Individual filed for bankruptcy in 2004, after his divorce from his first wife. Tr. at
33. He amassed debt during his marriage as a result of overspending. Tr. at 34. In
addition, his wife defaulted on her obligations after their divorce. According to the
Individual, the state in which he resides is a community property state, and as a result, his
wife’s debts became his as well. Tr. at 34. The LSO interviewed him in 2004 about his
bankruptcy. DOE Ex. 19. At that time, the Individual assured the LSO that he
understood DOE’s concerns about financial irresponsibility. Id. at 193-94, 226-27.
In 2009, the LSO again interviewed the Individual because of his unpaid debt obligations.
DOE Ex. 18. At that time, he assured the LSO that he would pay off his debts. Id.
According to his credit report dated August 2012, he had not taken care of a number of
the obligations that were outstanding in 2009. DOE Ex. 11. When questioned about
these outstanding obligations in 2012, he admitted to the LSO that he had not paid them
all. DOE Ex. 17. At the hearing, the Individual asserted that he had paid the outstanding
obligations, but did not provide documentation to support his contention. Tr. at 15-17.
He did provide documentation after the hearing showing that he had set up a monthly
payment plan for a number of his overdue bills. See Post-hearing submissions dated
March 7, 2013. The Individual borrowed money from a friend of 24 years who also
holds a security clearance to pay off other obligations in full. Tr. at 8-9, 52.
3/ A security concern does not arise from the bankruptcy filing, per se, but rather, as here, from
the circumstances surrounding the bankruptcy and the attendant financial problems. See
Personnel Security Hearing, Case No. PSH-11-0015 (2012); Personnel Security Hearing, Case
No. TSO-1048 (2011); Personnel Security Hearing, Case No. TSO-1018 (2011); Personnel
Security Hearing, Case No. TSO-0692 (2009); Personnel Security Hearing, Case No. TSO-0288
(2006); Personnel Security Hearing, Case No. TSO-0217 (2005); Personnel Security Hearing
Case No. VSO-0509 (2002).
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Of the charges listed in the Notification Letter, the Individual has paid off five of the
obligations in full, including $600 owed to the Internal Revenue Service (IRS). He used
his 2012 tax refund to pay his tax liability approximately one month prior to the hearing.
Tr. at 20-21; see Post-hearing submission dated March 7, 2013. He paid off one of the
other obligations in January 2013. Tr. at 8. He paid the other three obligations after his
interview with the LSO in 2009. Tr. at 15-17, 19-20. The “obligations paid status” are
reflected on the credit report he submitted dated February 6, 2013. Ind. Ex. A. At the
hearing, the Individual testified that one final obligation has been paid in full, but the
documentation provided by the Individual indicates that it was not paid until March 14,
2013, after the date of the hearing. Post-hearing submission dated March 14, 2013.
Finally, the Individual has set up payment plans for four other obligations. Tr. at 9-14;
see Post-hearing submission dated March 7, 2013.
At the hearing, the Individual stated, “I’ve said over and over that we were both horrible
at managing money and lived, you know, paycheck to paycheck.” Tr. at 13. The
Individual alleged that he was overspending to satisfy his wife prior to their divorce in
2012. Tr. at 36. He concluded that since the divorce, “I don't have any outside
influences anymore that are causing me to try to decide, you know, between, you know,
trying to make somebody happy and, you know, being financially responsible.” Tr. at 49.
V. Analysis
I have thoroughly considered the record of 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)4/ and the Adjudicative
Guidelines. After due deliberation, I have determined that the Individual’s access
authorization should not be restored. 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). The specific findings that I
make in support of this decision are discussed below.
A. Mitigating Evidence
At the hearing, the Individual testified that he has satisfied a number of the obligations
and has a payment plan for the remainder. He testified that his bankruptcy was caused by
his ex-wife defaulting on her obligations after their divorce. He also testified that he does
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.
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not intend to incur new debt, and has established automatic withdrawals from his bank
account to pay his bills.
B. Hearing Officer Evaluation of Evidence
In considering the evidence before me, I first looked to the Adjudicative Guidelines. As
an initial matter, I find that the Individual has demonstrated a pattern of living beyond his
means for a considerable length of time. This occurred during a period of over nine years
in the Individual’s life, from at least 2004 to 2012. In the later part of that period, the
Individual recognized that he was overspending but could not control his wife’s habits.
While the Individual has blamed both of his ex-wives for his financial difficulties, I
cannot find that they were solely responsible. The Individual admitted that he and his
first wife jointly acquired the debt prior to the divorce, as did he and his second ex-wife.
Further, he admitted that he did not manage money well. Nevertheless, I cannot find
mitigation of the security concerns at issue here under Guideline F at ¶ 20(a), which
addresses behavior that occurred long ago or very infrequently. While the behavior is no
longer current, the Individual did not pay some of the obligations in 2013, approximately
one to two months prior to the hearing, and I cannot find at this point that the financial
problems will not occur again.
Second, though the Individual testified that his financial difficulties arose, at least in part,
from his ex-wives’ overspending, he admitted he knew that they were living beyond their
means. Based on these findings, I cannot mitigate the Individual’s financial issues under
Guideline F at ¶ 20(b), i.e. the conditions that resulted in the financial problems were
largely beyond the person’s control.
Third, I cannot find for purposes of Guideline F at ¶ 20(c) that there are clear indications
that the financial problem is under control. The Individual borrowed money from a friend
to pay off some of his obligations in 2013. Further, he used his 2012 IRS tax refund to
pay his IRS obligation. It does not appear to me that he made an effort to fix his financial
difficulties until faced with this hearing. Although some of the obligations were paid
after his interview with the LSO in 2009, more debt was accrued and not satisfied until
the hearing was looming this year. Nor can I find that the Individual has received or is
receiving substantial counseling for his financial problems. The only testimony on this
matter indicated that the Individual contacted a credit counseling agency and found it to
be too expensive. Tr. at 41.
Finally, the Individual now recognizes the need for financial discipline. He testified that
he uses only cash for purchases and has set up automatic withdrawals for all his
payments. Moreover, I am convinced that the Individual has no desire to find himself
again in his present circumstances regarding his access authorization. Nevertheless, I
remain concerned about the Individual’s judgment regarding future financial decisions.
While he may have every intention not to repeat his mistakes, he has done so in the past.
In addition, too little time has passed for him to demonstrate his renewed discipline to
financial responsibility. Further, at the hearing, the Individual appeared almost
unconcerned about his financial obligations. He testified that he was sure he paid some
of his debts but could not provide specifics. The Individual said he had bank statements
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showing the payments, but he did not bring the documentation with him and had to
submit it after the hearing.
In 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. PSH-12-0134 (2013); Personnel Security Hearing, Case No.
PSH-12-0058 (2012); 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). 5/ At this point, 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.
Based on the foregoing, I find that the Individual has not mitigated the security concerns
associated with Criterion L.
C. 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
presented at the hearing, I have found that the Individual has not brought forth sufficient
evidence to mitigate the security concerns associated with Criterion L. 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.
Janet R. H. Fishman
Hearing Officer
Office of Hearings and Appeals
Date: May 1, 2013
5 OHA decisions are available on the OHA website at www.energy.gov/oha. A decision may be
accessed by entering the case number in the search engine at www.oha.gov/search.htm.