PSH-19-0008

*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: January 30, 2019 ) Case No.: PSH-19-0008
)
__________________________________________)
Issued: April 25, 2019
__________________________
Administrative Judge Decision
__________________________
Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXX (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, “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 restored.
I. BACKGROUND
The Individual is employed by a DOE Contractor in a position that requires that he hold a security
clearance. The Local Security Office (LSO) came into possession of derogatory information about
the Individual regarding his failure to file federal income taxes for several years. The LSO
conducted a Personnel Security Interview (PSI) of the Individual in August 2018. Several weeks
later, the Individual’s security clearance was suspended.
The 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.
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.
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.
At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e) and (g), the Individual presented
the testimony of four witnesses and testified on his own behalf. See Transcript of Hearing, Case
No. PSH-19-0008 (hereinafter cited as “Tr.”). The LSO submitted eight exhibits, marked as
Exhibits 1 through 8 (hereinafter cited as “Ex.”). The Individual submitted 13 exhibits, marked as
Exhibits A through M.
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). These guidelines are not inflexible rules
of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in
conjunction with the factors listed in the adjudicative process.
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 failed to file his federal income taxes for tax years 2014–2017,
despite his knowing that it was against the law to do so and despite his having participated in an
Administrative Review hearing in 2012 for his failure to file federal income taxes for 2008–2010.2
Notification Letter at 1–2. Accordingly, the LSO’s security concerns under Guideline F are
justified.
III. REGULATORY STANDARDS
2 The Individual’s security clearance was restored in that Administrative Review. OHA Case No. TSO-1116 (2012).
2
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 entire process
is a conscientious scrutiny of a number of variables known as the “whole person concept.”
Adjudicative Guidelines ¶ 2(a). The protection of the national security is the paramount
consideration. 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
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 ran an E-Bay shop for several years through which he sold used scientific
equipment. Ex. 6 at 22–23. In order to file his federal income taxes, the Individual needed certain
inventory information from his business. Id. at 21. For tax year 2013, the Individual lost the
information. Id. As of 2018, he had not attempted to access the information, though he knew it was
available online. Id. The Individual filed for one extension, which expired 6 months later. Id. at 26.
He did not request further extensions. Id. He failed to file his federal income taxes for tax years
2014–2017 for the same record keeping reasons as his failure to file for 2013. Id. at 41. In his
August 2018 PSI, the Individual promised to have his 2013 taxes filed within 3 months. Id. at 32.
The Individual submitted documentation into the record showing that he suffers from clinically
diagnosed hoarding disorder. Ex. F.
At the hearing, the Individual presented the testimony of his daughter, his co-worker, his Certified
Public Accountant (CPA), and his therapist. The CPA testified that the Individual had come to him
about six weeks prior to the hearing date with the issue of delinquent tax filing and engaged his
services to prepare and file his federal income taxes returns for tax years 2013–2018. Tr. at 19–20.
His firm has a tax power of attorney for the Individual that will extend indefinitely until the
3
Individual affirmatively cancels it. Id. at 21, 32. The firm will be filing the Individual’s taxes next
year as well. Id. at 28. If the firm does not receive the information it needs to timely file his taxes,
it will affirmatively contact the Individual to obtain the information. Id. at 24–25. The firm has
also provided the Individual with a tax organization tool to help him gather the necessary
documents to complete his return. Id. at 25. The CPA testified that the Individual’s taxes are not
complex and that the Individual’s E-Bay small business essentially ceased operations after 2013.
Id. at 27. He further testified that the Individual has established a long-term relationship with his
firm. Id. at 28. The CPA estimated that the Individual’s tax refunds due will almost certainly be
sufficient to cover any penalties accrued as a result of his late filing. Id. at 34.
The Individual’s daughter testified that the Individual gets overwhelmed trying to find things so he
got behind on his taxes because he could not find the necessary paperwork. Tr. at 37. She testified
that the Individual’s hoarding behavior began about 15 years ago, around the time that she and her
sister left for college. Id. at 38, 51. She testified that she has not been able to go inside the
Individual’s house in 10 years because the clutter affected her health. Id. at 38. However she has
seen inside the front door recently and she testified that several bags of trash have been removed
from the home. Id. at 46–47. She testified that the Individual attends weekly therapy sessions and
has been making progress in organizing his home and his life. Id. at 39–40. She testified that the
Individual’s wife also struggles with hoarding behaviors but is not currently in therapy. Id. at 48.
The Individual’s co-worker had known the Individual for about two years. Tr. at 54. He testified
that he and the Individual are both “big talkers” and, as a result, they know each other very well.
Id. at 54–55. He testified that the Individual was honest with him about the unfiled status of his tax
returns. Id. at 55. He saw the Individual as a mentor for work, but also for how to deal with life’s
problems. Id. at 56. He supports the Individual’s continued use of therapy and will support him in
whatever other ways he needs. Id. at 58.
The therapist had met with the Individual four times over a six-week period. Tr. at 65. The
Individual had called the therapist to get help about seven weeks prior to the hearing. Id. The
therapist testified that the Individual’s attorney of record in this case had referred the Individual to
him. Id. The therapist further testified that the Individual’s hoarding behavior began about 17 years
ago. Id. at 66. It started with acquisition of items for sale through his E-Bay small business, but
eventually the Individual began saving more than just valuable items and started saving everything.
Id. About 10 years ago, the Individual got behind on filing his taxes because he thought he needed
more information and eventually he was unable to access his relevant information due to the
disorganization in his home resulting from his hoarding behavior. Id. at 67. The Individual was
able to get his tax situation in order for a brief time, but eventually his hoarding behaviors returned
and intensified. Id. The home became packed with books, newspapers, and mail, which covered
and engulfed the furniture. Id. at 67–68.
The therapist testified that the Individual recently reported having cleaned about 10 percent of his
clutter. Tr. at 71. He testified that, though he had not interviewed the Individual’s spouse, he did
not get the impression that she was supportive of his efforts to change his hoarding behaviors. Id.
at 73. However, he believed that the Individual could recover even if his wife did not. Id. at 86.
The therapist gave the Individual a good prognosis, testifying that the Individual has good insight
4
into his hoarding behaviors. Id. at 74. He believes that the Individual is quite honest and open. Id.
at 80–81. The therapist was aware of the Individual’s use of an organization professional’s services
to help support his cleaning and decluttering activities. Id. at 76. He believed that using such a
professional’s services was helpful to the Individual. Id. He anticipated that the Individual needed
about three to six months of therapy to recover. Id. at 89.
The Individual testified that his tax returns had been filed for 2013–2017 and would file his 2018
returns once he had obtained his wife’s signature. Tr. at 91–92. He intended to continue using his
CPA in the years to come. Id. at 92. After meeting with the CPA firm, the Individual was able to
get the information he needed to file his taxes. Id. at 93. The CPA firm advised the Individual that
his business had become small enough that it was considered a hobby and, therefore, did not need
to be included on his taxes anymore. Id. at 95–96.
The Individual testified that the difference between this administrative review process and his last
administrative review process was that he now knows that he needs to keep track of his tax
documentation and keep it in a designated place in his home. Id. at 97. In 2012, when his last
administrative review took place, the Individual did not see a therapist, nor did he seek help in
organizing his home. Id. at 99. In contrast, this time around, his organizational coach, to whom he
speaks weekly, was teaching him methodologies for cleaning his home and disposing of excess
papers. Id. at 106–09, 131. He intended to continue working with her until his home was clear. Id.
at 119. The Individual also expressed a desire to stick with therapy for longer than six months if
that’s what it takes to clear his home. Id. at 131.
The Individual testified that he did not begin resolving his taxes until six weeks prior to the hearing,
despite his August 2018 PSI promises to resolve his tax situation, because that was when “the threat
level went higher.” Tr. at 125. He had known for a long time that he struggled with organization,
but felt that getting help was stigmatized. Id. at 129. He testified that therapy was recommended
after his 2012 Administrative Review, but he did not see a therapist until quite recently. Id. at 132.
His intent was to continue with his recovery from hoarding. Id. at 139–40. Between his new filing
system and his decreased tax documentation burden, he believed he would not have any issues
filing his taxes in the future. Id. at 133–34.
V. ANALYSIS
A person who seeks access to classified information enters into a fiduciary relationship with the
government predicated upon trust and confidence. This relationship transcends normal duty hours
and endures throughout off-duty hours. The government reposes a high degree of trust and
confidence in individuals to whom it grants access authorization. Decisions include, by necessity,
consideration of the possible risk that the applicant may deliberately or inadvertently fail to protect
or safeguard classified information. Such decisions entail a certain degree of legally permissible
extrapolation as to potential, rather than actual, risk of compromise of classified information.
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
5
for access for national security eligibility will be resolved in favor of the national security.”
Adjudicative Guidelines ¶ 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 restoring security clearances, I must deny restoration if I am not convinced
that the LSO’s security concerns have been mitigated such that restoring the Individual’s clearance
is not an unacceptable risk to national security.
Failure fulfill state or federal obligations can raise questions about an individual’s reliability and
trustworthiness. Adjudicative Guidelines at ¶ 18. Guideline F provides that the following
conditions, in relevant part, may mitigate security concerns:
(1) 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));
(2) 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));
(3) 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
are clear indications that the problem is being resolved or is under control (Id. at
¶ 20(c));
(4) 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)).
The Individual has filed his delinquent taxes and intends to file his taxes on time in the future.
Unfortunately, the Individual’s broken promises to that effect are significant evidence against his
ability to follow through on his commitments for the future. The Individual’s hoarding may indeed
be a factor in his failure to file taxes, however, he only sought diagnosis and help at his attorney’s
advice. It is too soon to tell whether the Individual’s new organizational skills are sufficient for him
to follow through on his commitment to file his taxes on time in all future years, rather than for
only two or three years, as happened the last time the Individual went through the Administrative
Review process.
Though the Individual has filed his required taxes, his previous broken promises in his last
Administrative Review and in the PSI prevent me from finding that the Individual is unlikely to
forego filing his taxes in the future. Significantly, the Individual reported taking similar mitigating
actions in 2012. See OHA Case No. TSO-1116 at 5 (2012) (“He now consults with a financial
counselor and has a file cabinet dedicated to his business records. All of his records are now in one
location and he will go to an accountant if he is overwhelmed by the task of doing his taxes. He
has also started to meet with a financial planner. His daughter maintains a duplicate copy of the
electronic records of his business.”) (internal citations omitted).
6
The Individual created the conditions that made it difficult for him to file his taxes and waited years
before seeking help in correcting them. The Individual’s hoarding is still not fully under control
and as such he has not yet been able to demonstrate that he will be able to maintain organized
paperwork in the future. For these reasons, I find that the Individual has not resolved the DOE’s
Guideline F 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 restoring 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 restore 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
7