PSH-18-0077

*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: October 23, 2018 ) Case No.: PSH-18-0077
)
__________________________________________)
Issued: January 17, 2019
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Administrative Judge Decision
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Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXX (hereinafter referred to as “the Individual”)
for access authorization under the Department of Energy’s (DOE) regulations set forth at 10 C.F.R.
Part 710, entitled, “Criteria and Procedures for Determining Eligibility for Access to Classified
Matter or Special Nuclear Material.”1 For the reasons set forth below, I conclude that the
Individual’s security clearance should not be granted.
I. BACKGROUND
The Individual is employed by a DOE Contractor in a position that requires him to hold a security
clearance. In 2016, the Individual applied for a DOE security clearance and disclosed that he had
several outstanding delinquencies and that he had failed to file state and federal taxes for 2014 and
2015. During a Personnel Security Interview (PSI) in April 2018, the Individual disclosed that he
had failed to file state and federal taxes since 2013.
The Local Security Office (LSO) began the present administrative review proceeding by issuing a
Notification Letter to the Individual informing him that he was entitled to a hearing before an
Administrative Judge in order to resolve the substantial doubt regarding his eligibility to continue
holding a security clearance. See 10 C.F.R. § 710.21.
The Individual requested a hearing and the LSO forwarded the Individual’s request to the Office
of Hearings and Appeals (OHA). The Director of OHA appointed me as the Administrative Judge
in this matter on November 24, 2018. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d),
(e) and (g), the Individual presented the testimony of one witness and testified on his own behalf.
See Transcript of Hearing, Case No. PSH-18-0077 (hereinafter cited as “Tr.”). The LSO submitted
1 Under the regulations, “Access authorization” means 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 also be referred to in this Decision as a security clearance.
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10 exhibits, marked as Exhibits 1 through 10 (hereinafter cited as “Ex.”). The Individual submitted
five exhibits, marked as Exhibits A through E.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY
CONCERNS
As indicated above, the Notification Letter informed the Individual that information in the
possession of the DOE created a substantial doubt concerning his eligibility for a security clearance.
That information pertains to Guideline F of the National Security Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive
Position, effective June 8, 2017 (Adjudicative Guidelines).
Guideline F (Financial Considerations) addresses “[f]ailure to live within one's means, satisfy
debts, and meet financial obligations.” Adjudicative Guidelines at ¶ 18. It is well established that
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. Id. The conditions set forth in that guideline that could raise a disqualifying
security concern are inability to satisfy debts or unwillingness to satisfy debts; a history of not
meeting financial obligations; deceptive or illegal financial practice; consistent spending beyond
one's means or frivolous or irresponsible spending; failure to file or fraudulently filing annual
Federal, state, or local income tax returns or failure to pay annual Federal, state, or local income
tax as required; unexplained affluence; borrowing money or engaging in significant financial
transactions to fund gambling or pay gambling debts; and concealing gambling losses, family
conflict, or other problems caused by gambling. Adjudicative Guidelines at ¶ 19. The LSO alleges
that the Individual currently has charge-off accounts totaling $1,600.00; currently has collection
accounts totaling $1,001.00; and failed to file state or federal taxes for tax years 2013 through 2017,
as well as failed to file extensions for those years. Notification Letter at 1–2. Accordingly, the
LSO’s security concerns under Guideline F are justified.
III. REGULATORY STANDARDS
A DOE administrative review proceeding under Part 710 requires me, as the Administrative Judge,
to issue a Decision that reflects my comprehensive, common-sense judgment, made after
consideration of all of 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). 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
or restoring 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
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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.
The discussion below reflects my application of these factors to the testimony and exhibits
presented by both sides in this case.
IV. FINDINGS OF FACT
The Individual had, at the time of his PSI, two accounts in charge-off status and three accounts in
collections. He submitted a receipt with his request for a hearing showing that one of the collection
accounts, a medical account totaling $119.00, had been paid in full. Ex. 2 at 2.
The Individual presented the testimony of his supervisor and testified on his own behalf. The
supervisor testified that the Individual is trustworthy, reliable, and responsible. Tr. at 14. Part of
the Individual’s work is to ensure that work orders are within the budgeted amount and the
supervisor has never had any problems with the Individual’s work. Id.
During the hearing, the Individual testified that he failed to file his taxes because, in past years, his
job required him to work in many states and the complexity of filing was overwhelming. Tr. 16–
17. He admitted that he should have just hired a tax preparer to file his returns. Id. He was not
aware at the time that he could file an extension, but he is aware of his duty to file taxes. Id. at 26–
27. The Individual took full responsibility for his failure to file taxes. Id. at 17.
In October 2018, the Individual told an Investigator that he wanted to file all of his delinquent taxes
at once. Tr. at 20. He initially contacted his tax preparer in January 2018 to begin resolving his tax
issue. Id. at 27. In April 2018, he lost contact with the tax preparer but later resumed efforts to file
his delinquent taxes. Id. at 22–23. Shortly before the hearing, the Individual submitted a letter from
his tax preparer stating that he will have everything ready to file within the next two weeks and the
Individual anticipates filing before the end of the year. Ex. B; Tr. at 20. He planned to pay the state
taxes in lump sums and the federal taxes through a payment plan. Tr. at 20. There are some years
for which he expected to owe and others for which he expected a refund. Id. at 21. The Individual
expected that, in the end, he will owe some amount of money. Id. at 20–21. The Individual testified
that he had been calling his tax preparer every day to ensure that she was working on his taxes. Id.
at 23. He was still looking for one receipt, but planned to file without that deduction and just “take
the hit” if he could not find the receipt in the next few days. Id. at 25–26. The Individual stated that
he planned to file his taxes on time in the future. Id. at 49.
The Individual stated that his debts were his own fault and that, when he was traveling and moving
often, he lost contact with several creditors. Tr. at 17. He had paid off two of his three collection
accounts and had a settlement offer for the third that he hoped to have paid before the end of the
year. Ex. C; Ex. D; Tr. at 30. The Individual planned to set up payment plans for his delinquent
debts in the near future. Tr. at 30–31.
The Individual submitted a budget showing his previous expenses and his current expenses. Ex. A.
In order to better pay his debts, the Individual worked to reduce his expenses. Tr. at 34–35. He
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was able to reduce his expenses by over $200 per month. Ex. A. Over the time since his security
clearance process started, the Individual has paid off several debts. Tr. at 35–36. As of his hearing
date, he had two personal loans, both of which were current. Id.
The Individual admitted that he had made many mistakes in his life, but stated that he was working
to fix them and was learning to be more financially responsible. Tr. at 38. He has not consulted
with a financial advisor or counselor, but was not opposed to the idea. Id. at 40. The Individual has
been monitoring his credit through Equifax to ensure that he found all his past debts. Id. at 41. He
has done research into debt consolidation programs and other debt solution programs. Id. at 43. In
addition, he is working on refinancing his vehicles for lower payments. Id. at 45.
V. ANALYSIS
The issue before me is whether the Individual, at the time of the hearing, presents an unacceptable
risk to national security and the common defense. I must consider all the evidence, both favorable
and unfavorable, in a common sense manner. “Any doubt concerning personnel being considered
for access for national security eligibility will be resolved in favor of the national security.”
Adjudicative Guidelines at ¶ 2(b). In reaching this decision, I have drawn only those conclusions
that are reasonable, logical, and based on the evidence contained in the record. Because of the
strong presumption against granting security clearances, I must deny granting if I am not convinced
that the LSO’s security concerns have been mitigated such that granting the Individual’s clearance
is not an unacceptable risk to national security.
Failure to live within one’s means, satisfy debts, and fulfill state and federal obligations can raise
questions about an individual’s reliability and trustworthiness. Adjudicative Guidelines at ¶ 18.
Guideline F provides that the following conditions may mitigate security concerns:
(a) the behavior happened so long ago, was so infrequent, or occurred under such
circumstances that it is unlikely to recur and does not cast doubt on the individual's
current reliability, trustworthiness, or good judgment (id. at ¶ 20(a));
(b) the conditions that resulted in the financial problem were largely beyond the person's
control (e.g., loss of employment, a business downturn, unexpected medical
emergency, a death, divorce or separation, clear victimization by predatory lending
practices, or identity theft), and the individual acted responsibly under the
circumstances (id. at ¶ 20(b));
(c) the individual has received or is receiving financial counseling for the problem from a
legitimate and credible source, such as a non-profit credit counseling service, and there
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are clear indications that the problem is being resolved or is under control (id. at
¶ 20(c));
(d) the individual initiated and is adhering to a good-faith effort to repay overdue creditors
(id. at ¶ 20(d)); and
(e) the individual has made arrangements with the appropriate tax authority to file or pay
the amount owed and is in compliance with those arrangements. (id. at ¶ 20(g)).2
The Individual failed to file his taxes as recently as 2017, after his security clearance process
had already been in progress for over a year. Though he had paid some creditors in recent
weeks, the majority of his outstanding debts remained outstanding on the day of his hearing.
This behavior was neither infrequent nor far in the past. Furthermore, the Individual has a long
record of gainful employment and offered no explanation of why he was unable to pay his bills
apart from his own poor decision-making. He has not undergone financial counseling and, as
of the date of his hearing, had not initiated a payment plan for his remaining delinquencies. His
taxes remained unaddressed as well. The Individual intended to file without the missing receipt
if he could not find it soon, but he could have just as easily filed without the missing receipt
before his hearing date. The Individual is to be commended for his efforts to resolve his
financial missteps. However, the manner in which the Individual has attempted to resolve the
DOE’s security concerns does not demonstrate reliability and sound judgment. For the
foregoing reasons, I find that the Individual has not mitigated the Guideline F security concerns.
VI. CONCLUSION
Upon consideration of the entire record in this case, I find that there was evidence that raised
concerns regarding the Individual’s eligibility for a security clearance under Guideline F of the
Adjudicative Guidelines. I further find that the Individual has not succeeded in fully resolving those
concerns. Therefore, I cannot conclude that granting DOE access authorization to the Individual
“will not endanger the common defense and security and is clearly consistent with the national
interest.” 10 C.F.R. § 710.7(a). Accordingly, I find that the DOE should not grant access
authorization to the Individual at this time.
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
2 Paragraphs 20(e) (reasonable basis to dispute) and (f) (unexplained affluence) of the mitigating factors are not
applicable to these facts.