PSH-17-0008

*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: February 9, 2017 ) Case No.: PSH-17-0008
)
__________________________________________)
Issued: May 17, 2017
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Administrative Judge Decision
______________________
Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXXX (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 grant
the individual 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 August 2016 and a
credit report and personal financial statement review, the Local Security Office (LSO) learned
that the individual had a number of financial irresponsibility issues, including the failure to file
his federal income taxes for 2015, a Chapter 7 bankruptcy, as well as two residential evictions.
The LSO also learned that the individual had an established pattern of an unwillingness or
inability to satisfy his debts.
In December 2016, 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
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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security clearance. In an attachment to the Notification Letter, the LSO explained that the
derogatory information fell within the purview of one or more security concerns under Guideline
F, Financial Considerations, of the Adjudicative Guidelines for Determining Eligibility for
Access to Classified Information (December 30, 2005)(Adjudicative Guidelines).
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 13 exhibits into the record; the individual
tendered three 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.2
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.
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 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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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 are various security concerns under Guideline F, Financial
Considerations. To support its charges, the LSO alleges that the individual (1) admitted that he
has not filed his federal income taxes for 2015; (2) acknowledged that his monthly net income is
less than his financial obligations; (3) filed for a Chapter 7 bankruptcy in April 2015; and (4) was
evicted from two residences in November 2012 and November 2015, respectively. In addition,
regarding the individual’s honesty, reliability and trustworthiness, the LSO alleges that the
individual has an established pattern of an unwillingness or inability to satisfy his debts. Ex. 1.
The individual’s failure to live within his means, to satisfy his debts and to meet his financial
obligations raises a security concern under Guideline F 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.
IV. Findings of Fact
The individual’s financial irresponsibility include his unwillingness or inability to satisfy his
debts and his failure to file federal income taxes. On November 29, 2012, the individual was
evicted from his residence. A judgment was placed against him in the amount of $2,165 in April
2013. On April 1, 2015, the individual filed for a Chapter 7 bankruptcy. Later, on November
18, 2015, he was evicted from another residence for failing to pay rent. During his August 2016
PSI, the individual admitted that he has not yet paid the unknown balance. He also
acknowledged that his monthly net income is less than his financial obligations. Despite his
negative cash flow, the individual further acknowledged that he spends money on entertainment
and gambling. He admitted to spending $30 to $40 on gambling every other weekend. In
addition to discussing his financial issues during his PSI, the individual admitted that he has not
filed his federal income taxes for 2015, and that he did not file for an extension of the time to file
his taxes. Ex. 3.
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
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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 access authorization should not be granted. I cannot find that granting the
individual a 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 two evictions. He
testified that with regard to his November 2012 eviction, his girlfriend lost her job and he
became responsible for the entire monthly rent. Transcript of Hearing (Tr.) at 81. According to
the individual, they were evicted from this residence. He testified that his grandmother loaned
him $400 to assist with the rental of another home. Id. at 83. In April 2015, the individual filed
for a Chapter 7 bankruptcy which included the debt owed, approximately $2,165, to the rental
management company. Id. He explained that he filed for bankruptcy because he had extensive
debt and did not have the money to pay his creditors. According to the individual, he viewed the
bankruptcy as a means to start over. Id. Although, his debt was discharged in bankruptcy, the
individual testified that he was evicted again in November 2015. Id. at 87. He stated that his
girlfriend lost her job again, and that he did not have the money to cover the rent. Id. at 88. He
testified that he lived with his mother for three months and acknowledged that he has not yet
paid the balance related to his 2015 eviction, which is approximately $5,500. Id. at 91. The
individual asserted that he has never gambled a lot and denied that gambling has caused any
financial issues for him. He further asserted that in the past he would only gamble
approximately $30 to $40 a couple of times a month. Id. at 98.
The individual testified that he is “trying to do better” with his finances and testified that he
plans to start making payments of $60 to $100 to pay off the debt related to his 2015 eviction.
Id. at 93. He also testified that he is current on the rent of a new house he shares with his
girlfriend, as well as the $400 a month car payments on his 2008 car. He testified that he recently
purchased another vehicle with a $460 monthly payment, and has given his 2008 car to his
girlfriend. Id. at 102. He acknowledged that the vehicle is still in his name but asserted that he
will turn the 2008 car into the creditor, if his girlfriend is unable to pay for it. The individual
also testified that he is current on his child support payments for his two children. Finally, with
respect to his finances, the individual asserts that he is more focused now and is trying to stay out
of debt. He stated that he is a “changed” man, is working hard to better himself and to take care
of his family. He further asserted that he has about $200 a month after paying his bills and has
qualified for a credit card for the first time which will allow him to build his credit.
The individual also addressed the circumstances that led to him not filing his federal income
taxes for 2015. He testified that he had no excuse for not filing his 2015 taxes. According to the
individual, he was working and taking care of his family at the time and simply lost track of the
filing deadline and was unaware that he could have filed for an extension. The individual stated
that his 2015 taxes were filed on December 28, 2016. Id. at 115, Ex. A. He received a refund
which he used to make a child support payment. He stated that he has no other delinquent tax
filings. Id. at 116.
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During the hearing, the individual presented the testimony of his mother, two friends and a
collection company representative. The individual’s mother testified that the individual seldom
spoke about his finances but she was aware that he did not have enough money to pay his bills in
the past, and that his girlfriend was not working. She testified that the individual lived with her
when he got evicted in 2015. The individual’s mother further testified that the individual is
trying to better himself, and that he is an honest and trustworthy person. Both of the individual’s
friends testified that the individual is a hard-working, reliable person who takes care of his
family. They also testified that the individual has never asked for financial help from them and
that they have not observed the individual spending excessively. Finally, the collection company
representative who works for the real estate company related to the individual’s 2015 eviction,
testified that the individual owes an outstanding balance of $5,587.69. Tr. at 58. He testified
that, as of the date of the hearing, the individual had not made arrangements to pay the
outstanding balance. Id. The representative further testified that, on December 28, 2016, the
individual promised to make a $100 payment on the balance, but never made a payment. Id. at
63. He stated that the individual demanded that his company provide him with a receipt for
payments, but stated that it is company policy to not provide payment plan letters. Id. at 61.
However, the company will send a final statement letter when the balance is paid in full. Id. at
62.
In evaluating the individual’s financial dilemma against the Adjudicative Guidelines, I find that
his financial problems date back at least five years and are ongoing. Therefore, Adjudicative
Guideline F, ¶20 (a) is inapplicable. To a certain extent, the individual’s financial problems were
beyond his control. The individual testified that when his girlfriend lost her job on several
occasions, all financial obligations fell on him. He asserted that he was not making enough
money to cover all of the household bills. Nevertheless, I cannot find mitigation under Guideline
F, ¶ 20 (b) because the individual did not convince me that he acted responsibly under the
circumstances. Although the individual is current on other bills, he has not yet made payment
arrangements with the collection company to address his largest debt, $5,587, which stems from
his 2015 eviction. The record reflects that the collection company communicated with the
individual on three separate occasions, in August 2016, December 2016 and January 2017. In
December, 2016, the individual promised to make a $100 payment toward the outstanding
balance. However, he never made the payment. Although, the individual asserted that he did not
want to pay without a receipt or a payment plan letter from the collection company, he has not
made any effort, as of the date of the hearing, to address this outstanding balance. In the end, I
am not convinced that the individual’s financial problems are under control. I, therefore, find
that his financial problems are not resolved under Guideline F, ¶ 20 (c). While the individual has
made efforts to change his financial situation moving forward, including establishing and
building credit, he has not yet established a pattern of repayment on his outstanding debt. 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.
However, I find that the individual has provided sufficient evidence to resolve the Guideline F
security concern related to his failure to file his 2015 taxes. The individual testified that he lost
track of the filing deadline because he was working and taking care of his family. According to
the individual, the “time slipped away.” Tr. at 117. He further testified and presented
documentary evidence that he filed his 2015 federal income taxes on December 28, 2016. The
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record also reflects that the individual received a refund that was processed into his child
support. I am convinced that the individual’s behavior with respect to the non-filing of his taxes
happened under such unique circumstances that it is unlikely to recur. Guideline F at ¶ 20 (a).
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 Guideline F. 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 guideline. I therefore cannot find that granting the individual
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 grant the individual
access authorization. The parties may seek review of this Decision by an Appeal Panel under the
regulation set forth at 10 C.F.R. § 710.28.
Kimberly Jenkins-Chapman
Administrative Judge
Office of Hearings and Appeals
Date: May 17, 2017