PSH-19-0026

*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: May 1, 2019 ) Case No.: PSH-19-0026
)
__________________________________________)
Issued: July 19, 2019
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXX (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 granted.
I. BACKGROUND
The Individual is employed by the DOE in a position that requires him to hold a security clearance.
During his background investigation, information pertaining to the Individual’s failure to file tax
returns or pay owed taxes for 2004 prompted the Local Security Office (LSO) to issue a Letter of
Interrogatory to the Individual in January 2019. The LSO began the present administrative review
proceeding by issuing a Notification Letter to the Individual informing him that it possessed
reliable information that created substantial doubt regarding his eligibility to hold a security
clearance. The Notification Letter also informed him that he was entitled to a hearing before an
Administrative Judge in order to resolve the substantial doubt regarding his eligibility to hold 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 May 1, 2019. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e)
and (g), the Individual presented his testimony. See Transcript of Hearing, Case No. PSH-19-0026
(hereinafter cited as “Tr.”). The LSO submitted six exhibits, marked as Exhibits 1 through 6
(hereinafter cited as “Ex.”). The Individual submitted 18 exhibits, marked as Exhibits A through
R.
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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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 addresses the failure to live within one’s means, satisfy debts, and meet financial
obligations which 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 or
trustworthiness and the individual’s ability to protect classified or sensitive information.
Adjudicative Guidelines ¶ 18. The 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 can
raise a security concern under Guideline F. Id. ¶ 19(f). The LSO alleges that the Individual (1)
owes $1,734 for the tax year 2004 to the Internal Revenue Service (IRS); (2) has not filed his 2016
or 2017 federal tax returns with the IRS; and (3) has not filed his 2016 or 2017 state tax returns.
Ex. 1. 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 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.
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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 explained that he owed money to the IRS in 2004 due to receiving a lump sum
payout from a retirement fund when he left his employment and not realizing that he needed to pay
tax on it. Tr. at 8. When he received the tax bill, he did not have the funds to pay the tax due. Id.
He has now paid all of the tax due for 2004. Ex. B. As for his 2016 and 2017 tax returns, the
Individual explained that he was in a motor vehicle accident in September 2016 that kept him out
of work for two months. Tr. at 10. During this time, his wife was not employed. Id. When his
tax return was due in April 2017 and again in April 2018, the Individual and his wife failed to file
their taxes because they did not have the income to pay any tax amount due. Id. When he was
hired for his current DOE contractor job and realized that his failure to file his taxes for 2016 and
2017 became an issue, he began to work on correcting that situation by refinancing his home. Id.
at 11. The Individual provided evidence that he filed and paid his federal and state tax returns for
2016 and 2017.2 Exs. A, C, O-R. Further, he provided evidence that he has paid his 2004 tax debt
in full. Ex. B.
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 of 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 ¶ 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 am unable to grant a security clearance if I am
not convinced that the LSO’s security concerns have been mitigated such that granting the
Individual a clearance is not an unacceptable risk to national security.
The Adjudicative Guidelines outline conditions that could mitigate the Guideline F security
concerns. These include that “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
2 During the hearing, the Individual stated that he had not paid his taxes prior to 2016, although he had filed those tax
forms. After the hearing, the Individual provided receipts for the payment of those back taxes. Exs. I-N.
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identity theft), and the individual acted responsibly under the circumstances.” Id. at ¶ 20(b).
Although the Individual indicated that part of his financial problems were related to an unexpected
medical emergency, his motor vehicle accident, there is no evidence before me indicating that the
timing or the nature of his medical problems prevented him from filing his 2016 or 2017 returns.
The Individual stated that he failed to file both years because he did not have the funds to pay any
amount due. However, it was incumbent on the individual to file his returns, and then to work out
a payment plan. Accordingly, the Individual failed to act “responsibly under the circumstances,”
as required by ¶ 20(b). The Individual’s continued failure to file these returns, as well as his failure
to pay his 2004 tax obligation, until prompted to do so because of the present proceeding, creates
serious doubt in my mind as to the Individual’s commitment or ability to be trusted to follow
security rules or regulations.
Arguably mitigating factors described in paragraphs 20(d) and (g) might be applicable in this case.
These mitigating factors, state that “the individual initiated and is adhering to a good-faith effort to
repay overdue creditors or otherwise resolve debts,” and that “the individual has made
arrangements with the appropriate tax authority to file or pay the amount owed and is in compliance
with those arrangements.” Adjudicative Guidelines F at ¶ 20(d), (g). The information that the
Individual has provided shows that he is now current on all his tax bills, both with the IRS and the
state, and thus, some mitigation under paragraphs 20(d) and (g) is applicable. Nonetheless, I find
that these mitigating factors are outweighed by my concerns described above. Further, I find no
other evidence that would indicate that such a failure to file taxes will not occur again in the future.
See Personnel Security Hearing, Case No. PSH-18-0009 (2018) (Administrative Judge’s decision
to restore security clearance based in part upon finding that Individual had provided evidence
indicating that a failure to pay debts or file taxes was unlikely to reoccur in the future).
For the reasons above, I cannot find that the Individual has resolved the Guideline F concerns raised
by the Individual’s failure to file and pay his taxes to the IRS and state.
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.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth at
10 C.F.R. § 710.28.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals