PSH-16-0089

*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: December 12, 2016 ) Case No.: PSH-16-0089
)
__________________________________________)
Issued: March 17, 2017
______________________
Administrative Judge Decision
______________________
Richard A. Cronin, Jr., Administrative Judge:
This Decision concerns the eligibility of XXXXX XXXXXX XXXXX (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.
I. Background
The Individual is employed at a DOE facility as a contractor employee. This position requires the
Individual to possess a DOE security clearance. In 2014, the local security office (LSO)
discovered, due to self-reporting, that the Individual had several credit accounts in collection and
had recently been subject to a wage garnishment. In October 2014, the LSO conducted a personnel
security interview (2014 PSI) with the Individual. The Individual was again interviewed by the
LSO in November 2015 (2015 PSI), because the LSO discovered that the Individual was subject
to another wage garnishment for a separate outstanding debt. Finally, in September 2016, the LSO
conducted a final personnel security interview (2016 PSI) with the Individual. The September 2016
PSI did not resolve the security concerns regarding the Individual’s history of delinquent credit
accounts. Consequently, in a November 2016 letter (Notification Letter), the LSO informed the
Individual that it had reliable information that created a substantial doubt regarding her eligibility
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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to hold a security clearance and that her security clearance was suspended. Specifically, the
Notification Letter stated that the LSO possessed information falling within the purview of the
potentially disqualifying criterion set forth in the security regulations at 10 C.F.R. § 710.8,
subsection (l) (Criterion L).2
Upon her receipt of the Notification Letter, the Individual exercised her right under the Part 710
regulations to request an administrative review hearing, and I was appointed the Administrative
Judge in the case. The LSO submitted seven exhibits (Exs. 1-7) into the record, and the Individual
submitted five exhibits (Exs. A-E). At the hearing, the Individual presented her own testimony
along with the testimony of her financial advisor (Advisor).
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 (1998) (“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).
An individual must come forward 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 his or 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). Thus, an individual is afforded the utmost latitude in the presentation of evidence to
mitigate the security concerns at issue.
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
2 Criterion L refers to information that suggests that an individual 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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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. In considering these factors, the Administrative Judge also consults
Adjudicative Guidelines that set forth a more comprehensive listing of relevant factors and
considerations. See Revised Adjudicative Guidelines for Determining Eligibility for Access to
Classified Information, The White House (December 19, 2005) (Adjudicative Guidelines).
III. The Notification Letter and the Security Concerns at Issue
The LSO cites an August 2016 credit report showing that the Individual had eleven outstanding
delinquent accounts and a number of charged off credit accounts. Ex. 4. Additionally, the
Individual admitted in the 2016 PSI that she failed to resolve her delinquent debts as promised in
the earlier 2014 PSI and 2015 PSI. See Ex. 5. Given the August 2016 credit report and the
Individual’s admissions in the 2016 PSI, the LSO had sufficient ground to invoke Criterion L.
Failure or inability to live within one’s means, satisfy debts, and meet financial obligations may
indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations, all
of which can raise questions about an individual’s reliability, trustworthiness, and ability to protect
classified information. An individual who is financially overextended is at risk of having to engage
in illegal acts to generate funds. Adjudicative Guidelines, Guideline F, at ¶ 18.
IV. Findings of Fact
During her initial 2014 PSI with the LSO, the Individual acknowledged that she had several
delinquent accounts. See Ex. 7. Most notably, the Individual had delinquent accounts with three
creditors that totaled approximately $6,600. See Ex. 7 at 18, 25, and 34. The LSO interviewer
discussed each delinquent account with the Individual, and the Individual gave her assurance that
she would take action to resolve her outstanding debts.3 For instance, the Individual stated that she
intended to make an arrangement with one creditor (Creditor 1) to pay off the account. Id. at 24.
Similarly, for a second creditor (Creditor 2), she told the LSO interviewer that she would contact
the company to work out a payment arrangement. See id. at 28-30. And the Individual stated the
same for the third creditor (Creditor 3): she would contact the creditor and make payment
arrangements. Id. at 36.
After discussing each delinquent account with the Individual, the LSO interviewer discussed
consumer credit counseling. Id. at 43. Near the end of the 2014 PSI, the Individual listed the
following actions she intended to take to avoid future financial difficulties: call the creditors to
3 The LSO interviewer also stated, and the Individual confirmed, that during a 2010 background investigation the
Individual and an investigator discussed two delinquent accounts. Ex. 7 at 33. At that time, the Individual stated she
would take action to resolve those accounts. Id. However, those two accounts remained delinquent at the time of the
2014 PSI, and the Individual admitted that she failed to follow through on her statement that she would take action.
Id.
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make a payment, pay off debts, and “don’t even think about opening anything or borrowing
anything else.” Id. at 55. Finally, the LSO interviewer informed the Individual that she would be
interviewed again within ten months. Id. at 57.
A new garnishment against the Individual prompted the 2015 PSI. Ex. 6 at 9. During the interview,
an LSO interviewer and the Individual again discussed the Individual’s financial difficulties and
delinquent accounts. Ex. 6. And again, the Individual gave assurances that she would make
arrangements to bring the accounts current.4 For instance, the Individual acknowledged that the
Creditor 1 account was still delinquent and that she had not yet contacted the creditor. See id. at
27-28. As for the Creditor 2 account, the Individual acknowledged that her failure to take action
to resolve the debt resulted in the PSI-precipitating garnishment. Id. at 9-10. Moreover, the
Individual admitted that she had not made any arrangements to resolve her delinquent account
with Creditor 3. Id. at 26. After discussing the Individual’s delinquent accounts, the LSO
interviewer went through the Individual’s personal finances. Id. at 37-48. After tabulating the
Individual’s stated income and expenses, including the garnishment, the LSO interviewer
determined that the Individual had a surplus of about four hundred dollars. Id. at 50. When
questioned about her failure to follow through with resolving her delinquent accounts, the
Individual did not provide a rationale. Id. Instead, the Individual, again, gave her word that she
would contact the creditors to make arrangements. Id. at 31. Furthermore, the LSO interviewer
advised the Individual to contact a debt counseling professional for assistance; in response, the
Individual stated that she would contact a professional regarding resolving her debt. Id. at 51-52.
During the 2016 PSI, the LSO interviewer confronted the Individual with her previous promises
to contact her creditors and make payment arrangements to resolve her delinquent accounts. Prior
to the 2016 PSI, the LSO retrieved a credit report for the Individual. Ex. 5 at 11. The Creditor 1,
Creditor 2, and Creditor 3 accounts were still listed as delinquent, among other accounts. As the
LSO interviewer addressed each delinquent account, the Individual admitted that she failed to take
action to resolve several of them.5 For instance, the Individual admitted that she contacted Creditor
1, made payment arrangements, and then promptly defaulted. Id. at 28. Furthermore, the
Individual’s credit report demonstrated that she had recently defaulted on an account she initiated
with another creditor. Id. at 32-35. When asked why she failed to make payments to this creditor,
the Individual could not provide a reason. Id. at 42. The Individual also admitted that she failed to
follow through with her statement that she would contact a debt counseling professional. Id. at 43.
Finally, the LSO interviewer again went through the Individuals monthly income and expenses
and determined that the Individual should have a small monthly surplus; however, the Individual
then admitted that she gave in excess of her surplus, about $400, to her daughter and grandchildren
each month. Id. at 50.
4 Two accounts that the LSO identified as delinquent (other than Creditors 1, 2, and 3) during the 2014 PSI were
apparently resolved prior to the 2015 PSI.
5 One account that the LSO identified as delinquent during the 2015 PSI was apparently resolved prior to the 2016
PSI.
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At the hearing, the Individual’s Advisor testified that the Individual has been a client of the
Advisor’s debt management and credit counselling firm since January 2017. Tr. at 12. The Advisor
explained that the firm negotiates with creditors to reduce its client’s debt and then arranges
payment to the creditors from a special trust account the firm creates for its client.6 Id. at 13-17.
The Advisor testified that the firm opened a trust account for the Individual. Id. at 13. Each month,
$232 is automatically withdrawn from the Individual’s bank account and deposited into her trust
account. Id. at 14-16. The Advisor’s firm determined that the Individual has six delinquent
accounts where the creditor could still act against the Individual. Id. at 17; see Ex. B (Settlement
Program Overview.) If the Individual maintains the firm’s services, the Advisor believes that the
Individual can resolve all six delinquent accounts within 30 months. Tr. at 22.
The Individual testified that, as of the date of the hearing, she had deposited $464 into the trust
account. Id. at 35. The Individual stated that a number of factors led to her financial problems: she
wanted to provide financial help to her 39 year old unemployed daughter and three grandchildren,
and she needed to provide financial help to her infirm fiancé by way of mortgage payments. Id. at
42. The Individual testified that it “seemed like it all . . . piled up like a big old circle to where it
just took control of me.” Id. at 42. As a result of her security clearance issues, the Individual has
informed her daughter and her fiancé that they can no longer expect financial assistance. Id. at 45,
53. The Individual now has a budget that insures her expenses are paid and which provides her
with a small surplus. Id. at 49. Moreover, the Individual is now focusing on the following five
principles: making good decisions; recognizing problems and addressing them; accepting
responsibility for mistakes; learning from experience; and staying on her budget. Id. at 48-49. The
Individual testified that she is focused on the importance of retaining her clearance and her job.
See id. at 55.
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) and the Adjudicative Guidelines. After due deliberation, I have
determined that the Individual’s security clearance should not be restored at this time.
The Criterion L concerns center on the Individual’s significant number of delinquent and charged
off debts as well as her failure to fulfill the commitments she made in the 2014 PSI, and then again
in the 2015 PSI, to resolve these debts. The Individual does not dispute the facts outlined in the
Notification Letter’s Summary of Security Concerns. While I appreciate the financial difficulties
that the Individual faced, I cannot conclude that the Individual acted responsibly under the
circumstances so as to sufficiently resolve the DOE’s concerns. Although she made a good faith-
effort to pay off some of her debts, the majority of the debts have not been paid off. Indeed, based
6 In his experience, the Advisor believes that the Individual’s creditors will settle for payment of approximately 50
percent of the amount owed. Tr. at 18, 19. As to the six accounts where creditors have active claims, the Individual
owes approximately $8,000.
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on her statements in her previous PSIs, the Individual not only knew about her delinquent debts,
but failed to take action to resolve them. Her inaction is represented by her consistent failure to
address her delinquent accounts with Creditor 1, Creditor 2, and Creditor 3. Instead, the Individual
continued to give her daughter and grandchildren money in excess of her monthly surplus income.
At each stage, she failed to offer any explanation as to why she did not take action to address many
of her financial issues. Regarding trustworthiness specifically, the Individual made several
promises that she would contact her creditors, and in many instances she failed to either contact
the creditor or follow through with payment arrangements after making contact.
Regarding the Adjudicative Guidelines’ mitigating factors, only two are relevant to this case. First,
the Individual is receiving counseling for the problem and there are clear indications that the
problem is being resolved. See Adjudicative Guidelines, Guideline F, at ¶ 20(c). Second, the
Individual has initiated a good-faith effort to repay overdue creditors. See id. at ¶ 20(d). However,
her recent positive strides come after several prior opportunities to do the same. The Individual
had since her September 2014 PSI to take the same positive action. During the PSI, the LSO
interviewer advised her of the benefit of a credit counselor. She was similarly advised during her
2015 PSI, and she even stated that she would contact a counselor. However, she waited until after
her 2016 PSI and the pendency of this administrative proceeding to seek debt counseling.
Furthermore, in prior cases involving financial considerations, Administrative Judges 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, e.g., Personnel
Security Hearing, Case No. TSO-1078 (2011); Personnel Security Hearing, Case No. TSO-0878
(2010); Personnel Security Hearing, Case No. TSO-0746 (2009).7 Based upon my evaluation of
the record and the testimony at the hearing, it is too soon to find that the Individual has established
a sustained pattern of financial responsibility. Given the recency of her payments to the trust fund
and her pattern of failing to follow through with resolving her financial issues, I cannot conclude
that the concerns raised by her outstanding debt are resolved. See 10 C.F.R. § 710.7(c). In sum, I
find that the Individual has not resolved the security concerns arising from the Criterion L
derogatory information contained in the Notification Letter.
VI. Conclusion
In the above analysis, I found that there was reliable information that raised substantial doubts
regarding the Individual’s eligibility for a security clearance under Criterion L of the Part 710
regulations. After considering all of the relevant information, favorable and unfavorable, in a
comprehensive, common-sense manner, including weighing all of the testimony and other
evidence presented at the hearing, I find that the Individual has not presented sufficient information
7 Decisions issued by the Office of Hearings and Appeals (OHA) are available on the OHA website located at
www.energy.gov/oha.
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to resolve the security concerns raised by the Criterion L derogatory information recorded in the
Notification Letter. Thus, I cannot conclude that restoring the Individual’s suspended DOE access
authorization will not endanger the common defense and is clearly consistent with the national
interest.” 10 C.F.R. § 710.7(a). Consequently, I find that the Individual’s access authorization
should not be restored.
Richard A. Cronin, Jr.
Administrative Judge
Official of Hearings and Appeals
Date: March 17, 2017