PSH-16-0079

*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 17, 2016 ) Case No.: PSH-16-0079
)
__________________________________________)
Issued: January 7, 2017
______________________
Administrative Judge Decision
______________________
Richard A. Cronin, Jr., Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXX (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
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. The LSO discovered, during a background
investigation, that the Individual had failed to file Federal or State income tax returns for the period
2011 to 2015. Exhibit (Ex.) 3 at 1. In June 2016, the LSO conducted a personnel security interview
(PSI) with the Individual. Ex. 5. The PSI did not resolve the security concerns regarding the
Individual’s failure to file Federal and State tax returns. Consequently, in a September 2016 letter
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.
**This document contains information which is subject to withholding from disclosure
under 5 U.S.C. § 552.**
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(Notification Letter), the LSO informed the Individual that it had reliable information that created
a substantial doubt regarding her eligibility to hold a security clearance and that her security
clearance was suspended. Ex. 1. 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 five exhibits (Exs. 1-5) 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 accountant (Accountant), her manager (Manager), a friend
(Friend), and a facility Division Leader (Division Leader).
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
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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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
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
Classified Information, The White House (December 19, 2005) (Adjudicative Guidelines).
III. The Notification Letter and the Security Concerns at Issue
The LSO cites the Individual’s admissions in the PSI that she failed to file Federal and State
income tax returns during the period 2011 to 2015 as Criterion L derogatory information. Given
these admissions, the LSO had sufficient ground to invoke Criterion L. Conduct involving
unwillingness to comply with rules and regulations can raise questions about an individual's
reliability, trustworthiness and ability to protect classified information. Adjudicative Guidelines,
Guideline E, at ¶ 15.
IV. Findings of Fact
The Individual testified that her mother came to live with her in November 2009. Tr. at 63. The
Individual moved her mother into her house because of her mother’s medical issues. Tr. at 63.
Typically, the Individual would go to work and then come home and relieve the professionals she
hired to care for her mother. Tr. at 65. After a period of time, the Individual became
“overwhelmed” between working and then caring for her mother. Tr. at 65. The Individual
described her feelings during this period as “It was something that I couldn't do any more than I
was doing. So it's really clear to me I was just overwhelmed.” Tr. at 65. The Individual then
suffered another sudden and unexpected loss when her brother suddenly and unexpectedly passed
away. Tr. at 68, 72.
The Individual had regularly filed her income tax returns until 2011. Tr. at 65. As she cared for
her mother, the Individual gave filing her taxes a low priority. Tr. at 66. She did not know that she
was violating federal law by not filing a return. Tr. at 65-66, 68. She did not discover that she had
violated federal law until she underwent the PSI. Tr. at 66. Since the PSI, the Individual has been
working with an accountant to file her delinquent tax returns Tr. at 68-69. Regardless of the
outcome of the hearing, the Individual believes that the recent events regarding her security
clearance have been positive influence since they had forced her “clear up and complete things”
and to go forward with her life. Tr. at 69, 71.
The Individual’s Friend has known the Individual for eight years. Tr. at 36. The Friend testified
that the Individual’s mother moved into the Individual’s house. Tr. at 37-38. The Individual
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attempted to obtain the best medical care possible for her mother. Tr. at 40. The Individual’s
mother was suffering from serious health problems that required dialysis treatment. Tr. at 40.
When the Individual’s mother died, the Individual was “totally traumatized.” Tr. at 38. The
Individual had difficulty in doing ordinary tasks. Tr. at 38. Within a year of the Individual’s death,
the Individual brother passed away unexpectedly. Tr. at 40-41. The Friend believed that this loss
shocked the Individual and the Individual became overwhelmed again with grief. Tr. at 38-39. The
Individual curtailed a number of her outside activities because of her grief. Tr. at 39. The Friend
believed that the Individual felt “alone in the world.” Tr. at 39. Despite her personal losses, the
Individual constantly demonstrated a constant commitment to her job at the facility. Tr. at 42-43.
The Individual’s Accountant testified that she has filed all of the Individual’s outstanding Federal
and State tax returns for the years 2011 through 2015 and that the Individual is current with regard
to all of her tax returns. Tr. at 52, 55, 59. She is also assisting the Individual in preparing the tax
return for her mother’s estate. Tr. at 60-61.
The Individual has worked for the Division Leader since 2010 and has worked closely with her in
the past year. Tr. at 11. The Manager has supervised the Individual for the past year and has worked
with the Individual for the prior 10 years. Tr. at 24. Both testified as to the Individual’s excellent
work performance. Tr. at 15, 26. Both also testified as to the Individual’s excellent judgment and
reliability. Tr. at 18-19, 27, 30-32. The Division Leader believes that the Individual has integrity
and is trustworthy. Tr. at 19-20. The Manager testified that the Individual always tries to do “the
right thing” and has never given her any reason for concern. Tr. at 26-27.
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 be restored.
The Criterion L concerns center on the Individual’s failure to file Federal and State income tax
returns for the period 2011 to 2015. The Individual does not dispute the facts outlined in the
Notification Letter’s Summary of Security Concerns. In mitigation, the Individual has presented
testimony detailing her exhaustion in caring for her mother at home and the emotional trauma she
experienced with the loss of her mother and later her brother.
I found the testimony of the Individual’s friend convincing regarding the Individual’s significant
emotional trauma resulting from the loss of her mother and brother. Given the record before me, I
find as a mitigating factor that the Individual’s failure to file 2011 to 2015 Federal and State tax
returns was an event triggered by extraordinary circumstances not likely to be repeated. See
Adjudicative Guidelines, Guideline E, ¶ 17(c) (the offense is so minor, or so much time has passed,
or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely
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to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment);
see Personnel Security Hearing, Case No. PSH-0029 (2016) (Individual’s failure to file Federal
and State tax return mitigated in part by daughter’s medical problems).
My determination is also supported by the testimony of the Individual’s Division Leader and
Manager which indicates that the Individual has a consistent record of reliability, judgment and
trustworthiness with regard to her duties at the facility. The Individual has also filed all back tax
returns and none of the returns indicate that she owed additional taxes for any of the years in
question. Exs. A-E (Federal and State tax returns for 2011 to 2015). In sum, I find that the
Individual has 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 presented sufficient information to
resolve the security concerns raised by the Criterion L derogatory information recorded in the
Notification Letter. Thus, I 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 be restored.
Richard A. Cronin, Jr.
Administrative Judge
Official of Hearings and Appeals
Date: January 7, 2017