PSH-15-0074

*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: September 25, 2015 ) Case No.: PSH-15-0074
)
__________________________________________)
Issued: January 15, 2015
______________________
Administrative Judge Decision
______________________
Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of xxxxxxxxxxxxxxxxxx (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 in light of the relevant
regulations and the Adjudicative Guidelines, I have determined that the DOE should not restore
the individual’s access authorization.
I. Background
The individual is employed by a DOE contractor in a position that requires him to hold a DOE
security clearance. During an ensuing personnel security interview (PSI) in July 2015 and a
credit report review, the Local Security Office (LSO) learned that the individual had a number of
delinquent debts, charge-off accounts, collection accounts as well as outstanding state and
Federal taxes.
In August 2015, 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 LSO explained that 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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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 Administrative Judge in the case and I
subsequently conducted an administrative hearing in the matter. At the hearing, the individual
presented the testimony of four witnesses and testified on his own behalf. The DOE Counsel did
not present any witnesses. The LSO submitted seven exhibits into the record; the individual
tendered two exhibits. The exhibits will be cited in this Decision as “Ex.” followed by the
appropriate numeric or alphabetic designation. The hearing transcript in the case will be cited as
“Tr.” followed by the relevant page number.3
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
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 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.
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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).
3 OHA decisions are available on the OHA website at www.energy.gov. A decision may be accessed by entering
the case number in the search engine at www.oha.gov/search.htm.
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B. Basis for the Administrative Judge’s Decision
In personnel security cases arising under Part 710, it is my role 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). 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, there is only one criterion at issue in this proceeding, Criterion L. To
support its charges, the LSO alleges that the individual (1) has a number of delinquent debts
including $10,000 in back child support, a number of charge-off accounts totaling $6,946, and a
number of collection accounts totaling $30,827, and (2) has unfiled state and Federal tax returns.
The individual’s failure to live within his means, to satisfy his debts and 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 of which
can raise questions about the individual’s reliability, trustworthiness and ability to protect
classified information. 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. In addition, the individual’s personal conduct related to his failure to file
his state and Federal taxes calls into question the individual’s judgment, reliability,
trustworthiness and his ability to protect classified information. See id. at Guideline E.
IV. Findings of Fact
The individual has been questioned about his finances on a number of occasions in the past. In a
February 2003 Letter of Interrogatory (LOI), the LSO questioned the individual about a wage
garnishment for child support. Ex. 1. In May 2003, the individual’s security clearance was
administratively terminated for not responding to the LOI. In July 2003, the individual filed a
Chapter 7 bankruptcy because his wages were being garnished for child support and he was not
able to keep up with his bills. Id. However, in December 2003, the individual’s clearance was
reinstated after resolving the issues with his finances. In 2012, the individual was delinquent on
his mortgage, student loan, three credit accounts as well as his child support. At that time, he
stated his intent to contact creditors. Id. Later, in January 2015, the LSO received information
which revealed a December 2014 Writ of Garnishment for the individual. This information
prompted the LSO to obtain the individual’s credit report which revealed a number of collection
and charge-off accounts. As a result, the LSO conducted a PSI on July 14, 2015. During the
course of the PSI, the LSO learned that the individual was divorced in March 2009 which left
him responsible for most of the finances. Regarding the individual’s delinquent debts, the PSI
revealed that the individual owes approximately $10,000 in back child support, possesses charge-
off accounts totaling $6,946 and collection accounts totaling $30,827. In addition, during the
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PSI, the individual admitted that he had not filed his state and Federal taxes for 2012, 2013 and
2014. Id.
V. Analysis
I have thoroughly considered the record of this proceeding, including the submissions tendered
in this case and the 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) 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.
During the hearing, the individual explained the circumstances that led to his delinquent debts
and outstanding state and Federal taxes. He testified that his debt and tax issues both stem from
his partial divorce in 2009 which has not yet been finalized due to a child support dispute. Ex. B.
The individual explained that when he filed his taxes after his divorce, his refunds were
garnished for back child support. Tr. at 43. The individual testified that he did not file his 2012
through 2014 taxes because his divorce decree was not finalized and he believed he was “kind of
throwing [his refund money] away.” He testified that he had planned to use his refund money
toward paying down his debt, but rather got himself more in debt when his refunds were
garnished. Id. at 45. The individual stated that he intends to file his state and Federal taxes once
his divorce decree is finalized and the child support dispute between him and his ex-wife is
resolved. Id. at 51. The individual also explained that a jurisdictional issue must also be
resolved before his divorce is finalized. Ex. A, Tr. at 60. He testified that he did not understand
that he had a duty to file taxes every year, but stated that he understands his obligation now. Id.
at 58. The individual further testified that he plans to contact the Internal Revenue Service for
guidance on how to file his past taxes in light of the garnishment issue.
With regard to the individual’s delinquent debts, he testified that according to his partial divorce
decree he is responsible for half of the debt. Id. at 65. He acknowledged that back child support
is still listed as delinquent debt, but reiterated that the approximate amount of $10,000 is in
dispute and will not be resolved until his divorce decree is finalized. Id. at 67. He testified that
he is currently paying $1000 in child support and does not believe he should owe any back child
support because he was taking care of his children and paying the home mortgage for his wife at
the time of their divorce. Id. at 67. Likewise, the individual testified that he does not dispute the
charge-off accounts totaling $6,946 and collection accounts totaling $30,827, both listed in the
statement of security concerns. Again, according to the individual, until his divorce is finalized,
he is unsure of what portion of the debt he owes. Id. at 70. The individual testified that once he
knows the portion of the debt he owes, he plans to consolidate his debt into one loan. Id. at 70
and 78. He reiterated that all of his debts including charge-off accounts and collections accounts
are still pending in his divorce. He stated that he is currently working hard to support his
children and get out of debt. Id. at 73. 4
4 The individual offered the testimony of four friends who have known him for a long period of time. All of these
witnesses testified that the individual is an honest, reliable and trustworthy person. Id. at 10, 20, 26 and 31.
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In evaluating the individual’s financial dilemma against the Adjudicative Guidelines, I find that
his financial problems date back for a number of years and are ongoing. Therefore Adjudicative
Guideline F, ¶20 (a) is inapplicable. Although the individual testified that his financial issues
were largely beyond his control as his delinquent debt is the direct result of his 2009 divorce
which is still pending, I cannot find mitigation under Guideline F, ¶ 20 (b) because the individual
did not convince me that he acted responsibly under the circumstances. Even though he does not
know the exact amount he would owe after his divorce is finalized, the individual has not
contacted credit companies or attempted to make any partial payments. Furthermore, despite his
current financial plight, the individual has not yet sought any financial counseling or otherwise
put mechanisms in place to prevent future financial issues. In addition, the record reflects that
the some of the individual’s financial issues predated his 2009 divorce. In the end, I am not
convinced that the individual’s financial problems are under control yet. I, therefore, find that
his financial problems are not mitigated under Guideline F, ¶ 20 (c). As stated above, the
individual has not yet initiated a good-faith effort to repay overdue creditors or otherwise resolve
debts. Rather, he has placed his debts on hold until his divorce is finalized. Thus, he has not yet
established a pattern of repayment. Hence, Guideline F, ¶ 20 (d) is inapplicable. In summary,
the evidence before me is not sufficient to resolve the individual’s financial problems, and their
associated security concerns, at this time.
With respect to the individual’s outstanding state and Federal taxes, I find that the individual has
not provided sufficient evidence to resolve the Criterion L security concerns related to his
reliability and trustworthiness. The individual testified that he did not file his state and Federal
taxes for 2012, 2013 and 2014 because his refund checks were being garnished for back child
support which was money he would have used to pay down his debt. He also testified that he
intends to file his taxes as soon as his divorce is finalized and stated that he was unclear that he
had a duty to file his taxes every year. I find the individual’s testimony that he did not
understand his duty to file his taxes as required by law not to be credible. Rather, I am
convinced that the individual chose to not file his taxes or even for extensions simply because he
wanted to avoid having his refunds garnished for back child support. This represents a disregard
for the law. Again, in light of these circumstances, I find that the individual has not resolved the
Criterion L security concerns related to his outstanding state and Federal taxes.
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 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 resolve the security
concerns associated with that criterion. 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 DOE should not restore the
individual’s access authorization. The parties may seek review of this Decision by an Appeal
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Panel under the regulation set forth at 10 C.F.R. § 710.28.
Kimberly Jenkins-Chapman
Administrative Judge
Office of Hearings and Appeals
Date: January 15, 2015