PSH-13-0076

*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: June 14, 2013 )
) Case No.: PSH-13-0076
_________________________________________ )
Issued: August 27, 2013
______________________
Hearing Officer Decision
______________________
Ann S. Augustyn, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXX (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 grant the individual an access authorization.
I. Background
The individual is an applicant for a DOE security clearance. During a background
investigation conducted by the Office of Personnel Management (OPM), information
surfaced about the individual’s failure to file federal income tax returns. When the Local
Security Office (LSO) was unable to resolve the derogatory information during a
personnel security interview (PSI), it requested and received permission to initiate an
administrative review proceeding.
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.
2
In June 2013, 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 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 a hearing, and I was appointed the Hearing Officer in
the case. At the hearing that I conducted, two witnesses testified. The individual
presented his own testimony and that of one other witness; the DOE presented no
witnesses. In addition to the testimonial evidence, the LSO submitted six 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.
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
2 Criterion L refers to information indicating 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. Such conduct or circumstances include, but are not limited
to . . . a pattern of financial irresponsibility . . . or violation of any commitment or promise upon
which DOE previously relied to favorably resolve an issue of access authorization eligibility.”
10 C.F.R. § 710.8(l).
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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
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 he failed to comply with the
law by not filing his 2010 and 2011 federal tax returns.
I find that the individual’s failure to discharge his obligation to file his federal tax returns
raises questions about his ability to comply with rules and regulations which, in turn, cast
doubt on his reliability, trustworthiness and ability to protect classified information. See
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 at Guideline F (Adjudicative Guidelines), ¶ 19 (g).
IV. Findings of Fact and Analysis
The individual admits that he failed to file his federal tax returns for the tax years 2010
and 2011. Ex. 5 at 9-13, 17, 29-31. He claimed during the PSI and reiterated at the
hearing that he did not know he had to file income tax returns. Id. at 13-14, Tr. at 27, 30-
31, 33. At the PSI, he related: “I thought …they just take taxes out of my check…I didn’t
know to go and file.” Ex. 5 at 13. The individual, who was 20 years old in 2010, testified
that he lived with his mother at all periods relevant to this proceeding. Tr. at 28, 29-30.
He further testified that he never received his W-2 forms from his employers for the tax
years 2010 and 2011 because he and mother moved three times during that time frame.
He maintained that it was never his intent to defraud the federal government. Response to
Notification Letter. He also testified that his failure to file his federal tax returns was in
no way related to a desire to protest the requirement to file federal tax returns. Tr. at 29.
He stated that he was immature during the time period in question, and did not
understand the importance of filing taxes. Ex. 5 at 26. He provided documentary evidence
to show that he has filed his 2010, 2011 and 2012 tax returns and received a refund for
the tax years 2011 and 20123. He added that he intends to file his tax returns in the future
in a timely manner. Tr. at 29, 33, 39.
3 He testified under oath that he also received a $408 tax refund for the 2010 tax year but was unable to
produce the U.S. Treasury check. Tr. at 37.
4
The individual’s mother testified that it was her mistake that he did not file his federal tax
returns. Id. at 13-19. She stated that her tax preparer told her that if her son made less
than $7,000, he did not need to file a tax return. At the time, the individual did not know
her son made more than $7,000 for one of the tax years in question. She pointed out, and
submitted her 2010 and 2011 tax returns to corroborate, that she claimed the individual as
a dependent on her federal tax returns. Id. at 13; Attachment to Response to Notification
Letter. She also corroborated her son’s testimony that they moved and that he never
received his W-2 forms until just before the administrative hearing. She concluded her
testimony by stating that she will make sure that he files his tax returns in the future.
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 should be
granted an access authorization. I find that granting 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.
The individual was young and immature when he failed to file his federal tax returns. He
appears to have relied heavily on his mother for advice and instruction on this matter, as
he lived with her until recently. The mother testified that after the OPM investigator
questioned the individual about his failure to file federal tax returns, the individual asked
her what he should do. Tr. at 20. The mother told the individual that the matter was
already taken care of because she had claimed him as a dependent on her tax returns. Id.
Based on the evidence before me, I find that the mother’s misunderstanding about her
son’s obligation to file federal tax returns, the individual’s earnest ignorance of his own
obligation in this regard, and the fact that the individual did not receive his W-2 forms all
contributed to the individual’s failure to file his federal tax returns for the tax years 2010
and 2011 tax years. Furthermore, the individual has now filed his federal tax returns for
the tax years 2010 and 2011, thereby fulfilling his obligation to file tax returns for those
years. He also submitted evidence that he filed his 2012 federal tax return, and testified
credibly that he now understands his obligation to file federal tax returns and will do so in
the future. His mother also now knows that her son must do his own tax filing and has
committed to ensuring that he does so in the future. The individual and his mother
convinced me that the conduct at issue happened under unique circumstances and is
unlikely to recur. In the end, the record is clear that the individual’s failure to file his
federal tax returns stemmed from ignorance, not willful disregard of the law or
negligence. In the end, the individual has mitigated the Criterion L security concerns at
issue in this proceeding.
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
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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 brought forth sufficient
evidence to mitigate the security concerns associated with that criterion. I therefore find
that granting the individual an access authorization will not endanger the common
defense and is clearly consistent with the national interest. Accordingly, I have
determined that the individual should be granted an access authorization. The parties may
seek review of this Decision by an Appeal Panel under the regulations set forth at
10 C.F.R. § 710.28.
Ann S. Augustyn
Hearing Officer
Office of Hearings and Appeals
Date: August 27, 2013