PSH-16-0017

*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: March 15, 2016 ) Case No.: PSH-16-0017
)
_________________________________________ )
Issued: July 11, 2016
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Administrative Judge Decision
____________________
Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXX (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 fully
discussed below, after carefully considering the record before me in light of the relevant
regulations and Adjudicative Guidelines, I have determined that the individual’s access
authorization should be restored.
I. Background
The individual is employed by a DOE contractor in a position that requires him to hold a DOE
security clearance. During a background investigation, information surfaced about the individual’s
failure to file federal and state 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.
In January 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
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
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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in the security regulations at 10 C.F.R. § 710.8, subsection (l) (hereinafter referred to as Criterion
L).2
Upon receipt of the Notification Letter, the individual exercised his right under the Part 710
regulations by requesting a hearing, and I was appointed the Administrative Judge in the case. At
the hearing that I conducted, three witnesses testified. The individual presented his own testimony
and that of two other witnesses; the DOE presented no witnesses. In addition to the testimonial
evidence, the LSO submitted five exhibits into the record; the individual tendered 12 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, 494 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 restoring
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 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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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 failed to comply with the law by not filing his 2011
through 2014 federal and state income tax returns. In addition, the LSO alleges that the individual
admitted in the PSI that he had not made any effort to file his delinquent tax returns since
discussing them with an Office of Personnel Management (OPM) investigator in August 2015.
I find that the individual’s failure to discharge his obligation to file his federal and state 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 discussed with the OPM investigator his failure to file his federal
and state income tax returns for tax years 2011, 2012, 2013 and 2014. He further admits that he
failed to file an extension to file a return with the Internal Revenue Service for these tax years. In
addition, the individual admits that as of the date of the PSI, he had not made any effort to file his
delinquent tax returns. Ex. 1. He claimed during the PSI and reiterated at the hearing that there
were a couple of factors that contributed to his non-filing of his returns. According to the
individual, in 2011, there was a strike at his employment that lasted for 41 days and during the
strike, he was paid by the union because he was one of the members charged with negotiating the
return to work settlement. Ex. 3, Transcript of Hearing (Tr.) at 20. The individual stated that he
was supposed to be issued a 1099 for his wages from the union but did not receive one for a while
and therefore he did not file his federal or state tax return for that tax year. Id. He acknowledged
that he made no effort to get his return filed after he received his 1099 and admitted that he
procrastinator. The individual stated that he did not file a return for the 2012 tax year because he
could not file without the information from his 2011 return. He further stated that he did not file
returns for tax years 2013 and 2014 for the same reason. He testified that his regular tax preparer
retired in 2012 and passed away a year later which he asserts also contributed to his non-filing of
his returns. Id. at 22.
The individual testified that he was unaware that it was illegal not to file income tax returns. Tr.
at 21 and 23. He stated that he intended to file his returns and believed he would not be penalized
because he would be receiving a refund for all of the tax years in question. Id. He also
acknowledged that he could have filed for an extension to file, and admitted that he did not have
any excuse for not doing so. Id. When the individual was questioned about why he did not simply
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hire another tax preparer, he testified that he “kept putting it off.” Id. at 33. The individual
reiterated that he had no good reason for the non-filing of his returns other than his procrastination
and fear of the IRS. Id. at 29. Promptly after his November 2015 PSI, he contacted a new tax
accountant and filed all of his delinquent federal and state tax returns, 2011 through 2014, in
December 2015. He then timely filed his 2015 federal and state returns. Id. at 25 and 27; Exs. A-
L. In addition, the individual received a refund for each year in question, with the exception of
2011. His 2011 refund was forfeited because he failed to file within the IRS’s three-year
requirement to claim a refund. Id. at 21. Finally, the individual testified that he now fully
understands his legal obligation to file income tax returns despite whether or not he would be
receiving a refund, and stated that he will file his tax returns in a timely fashion in the future. Id.
at 31 and 32. He reiterated that he took his obligation “too lightly” in the past because he knew he
had refunds coming to him and now understands the importance of following rules and regulations.
Id. 3 As of the date of the hearing, the individual had been current on all of his federal and state
taxes for the past six months.
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 access authorization should be restored. I 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 individual acknowledged
that he was negligent when he failed to file his 2011 through 2014 federal and state income tax
returns, and admitted that both the death of his tax preparer and an employment strike in 2011
were poor excuses for his failure to meet his tax filing obligation. He credibly maintained that he
did not willfully disobey the law when he failed to file his tax returns. The individual has now
filed his federal and state tax returns for the tax years 2011 through 2014, thereby fulfilling his
obligation to file tax returns for those years. He has also submitted evidence that he filed his 2015
federal tax return, and testified credibly that he now completely understands his obligation to file
federal tax returns in a timely fashion and will do so in the future. The individual convinced me
that the conduct at issue happened under such unusual circumstances and is unlikely to recur. In
the end, the record is clear that the individual’s failure to file his federal and state tax returns
stemmed from procrastination, misinformation and negligence, not a willful disregard of the law.
In the end, the individual has adequately resolved the Criterion L security concerns at issue in this
proceeding. See Personnel Security Hearing, Case No. PSH-14-0006 (2014).
V. 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
3 The individual also offered the testimony of two of his co-workers. Both of these witnesses testified that the
individual exercises good judgement and follows rules and procedures well at work. Id. at 12 and 15.
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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 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 individual’s access authorization should be restored. The
parties may seek review of this Decision by an Appeal Panel under the regulations set forth at 10
C.F.R. § 710.28.
Kimberly Jenkins-Chapman
Administrative Judge
Officer of Hearings and Appeals
Date: July 11, 2016