PSH-19-0050

*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: September 3, 2019 ) Case No.: PSH-19-0050
)
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Issued: November 26, 2019
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Administrative Judge Decision
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Steven L. Fine, 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 and
Special Nuclear Material.”1 As discussed below, after carefully considering the record before me
in light of the relevant regulations and the National Security Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive
Position (June 8, 2017) (Adjudicative Guidelines), I conclude that the Individual should not be
granted access authorization.
I. BACKGROUND
The Individual is employed by a DOE contractor in a position that requires him to hold access
authorization. On January 26, 2018, the Individual signed and electronically submitted a
Questionnaire for National Security Positions (QNSP) in connection with seeking access
authorization. Exhibit (Ex.) 6 at 43. The Individual disclosed on the QNSP that he had failed to file
his Federal income tax returns for tax years 2015 and 2016. Id. at 37.
On December 3, 2018, the local security office (LSO) issued the Individual a Letter of Interrogatory
(LOI) concerning the reasons he failed to timely file tax returns and the status of the tax returns.
Ex. 5. In his response to the LOI, the Individual again admitted that he had failed to file his Federal
income tax returns for tax years 2015 and 2016. Id. at 1. The Individual also admitted that he had
not filed his state income tax returns for tax years 2015 and 2016. Id. at 2.
The Individual’s failure to file his Federal and state income tax returns raised substantial security
concerns about the Individual. Accordingly, the LSO informed the Individual, in a notification
1 The regulations define access authorization 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). This
Decision will refer to such authorization as access authorization or security clearance.
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letter dated February 25, 2019 (Notification Letter), that it possessed reliable information that
created substantial doubt regarding the Individual’s eligibility to hold a security clearance. In an
attachment to the Notification Letter, the LSO explained that the derogatory information raised
security concerns under “Guideline F, Financial Considerations” of the Adjudicative Guidelines.
Ex. 1.
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 September 3, 2019. At the hearing that I convened pursuant to 10 C.F.R.
§ 710.25(d), (e), and (g), I took testimony from the Individual. See Transcript of Hearing, Case No.
PSH-19-0050 (hereinafter cited as “Tr.”). The LSO submitted seven exhibits, marked as Exhibits
1 through 7. The Individual submitted three exhibits marked as Exhibits A through C.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY
CONCERNS
The LSO cited Guideline F (Financial Considerations) as the basis for denying the Individual a
security clearance. Ex. 1.
Failure to live within one’s means, satisfy debts, and meet financial obligations may indicate poor
self-control, lack of judgement, or unwillingness to abide by rules and regulations. Adjudicative
Guidelines at ¶ 18. In invoking Guideline F, the Notification Letter indicated that the Individual
had not filed Federal or state personal income tax returns or paid federal or state personal income
taxes for tax years 2015 and 2016. Ex. 1 at 1–2. The Individual’s failure to file Federal or state
income tax returns and failure to pay Federal and state income taxes justify the LSO’s invocation
of Guideline F in the Notification Letter. Adjudicative Guidelines at ¶ 19(f).
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 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.
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§ 710.26(h). Hence, an individual is afforded the utmost latitude in the presentation of evidence to
mitigate the security concerns at issue. Adjudicative Guidelines at ¶ 22(a), (c)–(d).
IV. FINDINGS OF FACT
The Individual signed his completed QNSP on January 26, 2018. Ex. 6 at 43. The Individual
disclosed on the QNSP that he had not filed his Federal income tax returns for tax years 2015 and
2016. Id. at 37. In answer to the prompt on the QNSP concerning the reasons for his failure to file
tax returns, the Individual responded “I only have excuses and laziness, I didn’t think about it.” Id.
In his response to the LOI, the Individual indicated that he had not taken any steps to file his
outstanding Federal tax returns or to pay his Federal income taxes for tax years 2015 and 2016, and
further disclosed that he had not filed state tax returns or paid state personal income taxes for those
tax years. Id. at 1-2.
In response to the LSO’s inquiries concerning his reasons for not filing or paying federal or state
personal income taxes, the Individual stated that he “used to have a terrible habit of being
unorganized and forgetful.” Id. at 1–2. The Individual expressed that he was working to address
his lack of organization, and indicated that he intended to have his tax situation resolved by “the
end of December [2018] or in January [2019]. Id.
The Hearing
At the hearing, the Individual testified that he had filed his outstanding Federal income tax returns
for tax years 2015 and 2016. Tr. at 15. The Individual also entered into evidence a letter from a tax
preparer indicating that she had filed the Individual’s Federal tax returns on behalf of the Individual
on October 23, 2019. Ex. A.2 The Individual owed federal income taxes, but did not pay the full
balance when he filed the tax returns. Tr. at 16; see also Ex. C at 2 (indicating that the Individual
owed $1,137 in U.S. personal income taxes for the 2016 tax year). As of the date of the hearing,
the Individual further admitted that he had not filed his state income taxes for tax year 2015. Tr. at
23.3 The Individual speculated that he owed state personal income taxes for the 2015 tax year, but
could not say how much with certainty. Id.
When asked why he had waited until October 23, 2019, two days prior to the hearing, to file his
federal income tax returns even though he had promised to do so by January 2019 in his response
to the LOI, the Individual responded that the area in which he resided “had a bunch of snowstorms
and [then he] forgot.” Tr. at 16. The Individual asserted that he would avoid filing taxes late in the
future by using a tax preparation service instead of preparing the tax returns himself. Id. at 17.
V. ANALYSIS
2 I conducted the hearing concerning this matter on October 25th. Thus, the Individual did not file his federal income
tax returns until two days prior to the hearing.
3 After the hearing, the Individual submitted a shipping label dated October 25, 2019, as a late-filed exhibit which he
asserted demonstrated that he had filed his 2015 state personal income tax return. Ex. B.
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The Individual did not contest any of the allegations contained in the Notification Letter, and
acknowledged his responsibility for not timely filing his tax returns. Id. at 12–13. However, the
Individual asserted that he had filed all of his outstanding tax returns, would pay the taxes he owed,
and would not fall behind on filing tax returns in the future. As described below, I find that the
Individual has not mitigated the security concerns asserted by the LSO under Guideline F.
The Adjudicative Guidelines provide that an individual may mitigate security concerns under
Guideline F if:
(a) 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;
(b) the conditions that resulted in the financial problem were largely beyond the person’s
control . . . and the individual acted responsibly under the circumstances;
(c) 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;
(d) the individual initiated and is adhering to a good-faith effort to repay overdue creditors
or otherwise resolve debts;
(e) the individual has a reasonable basis to dispute the legitimacy of the past-due debt which
is the cause of the problem and provides documented proof to substantiate the basis of
the dispute or provides evidence of actions to resolve the issue;
(f) the affluence resulted from a legal source of income; and
(g) 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 at ¶ 20(a)–(g).
The first two mitigating conditions are not applicable in this case because of the recency of the
Individual’s tax issues and the Individual’s failure to timely address the concern. The Individual
attributed his failure to file state and federal personal income tax returns in consecutive years to
laziness and disorganization. When the LSO brought to his attention that this information placed
his eligibility for a security clearance at risk in the LOI, the Individual did not take action for over
ten months and attributed the delay to forgetfulness. As the Individual did not take action to resolve
his unfiled tax returns until shortly before the hearing, which occurred eight months after the
Notification Letter had been issued, and did not identify any circumstances beyond his control that
caused the delay, I find that the Individual’s behavior continues to cast doubt on his reliability,
trustworthiness, and good judgement, and that the first two mitigating conditions under Guideline
F are not applicable. Id. at ¶ 20(a)–(b).
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Although the Individual testified that he had filed all but one outstanding tax return as of the date
of the hearing, and provided documentation purporting to show that he filed that tax return after
the hearing, I find that the seventh mitigating condition under Guideline F (¶ 20(g)) is inapplicable.
Although the Individual provided documentation to show that he filed his outstanding Federal
income tax returns, he still owes over $1,000 in unpaid Federal income taxes and does not yet
know the extent of his unpaid state income taxes. Moreover, the Individual did not provide
documentation establishing that he made arrangements to pay the taxes that he owes. Since the
Individual has not paid or arranged to pay the Federal and state income taxes that he owes, the
seventh mitigating condition under Guideline F is not applicable. Id. at ¶ 20(g).
Given the available evidence, the remaining four mitigating conditions under Guideline F are not
applicable in the present case. Accordingly, I conclude that the Individual has not resolved the
security concerns asserted by the LSO under Guideline F.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
DOE that raised security concerns under Guideline F of the Adjudicative Guidelines. 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 not brought forth sufficient evidence to resolve the
security concerns set forth in the Notification Letter. Accordingly, I have determined that the
Individual should not be granted access authorization. Either party may seek review of this
Decision by an Appeal Panel pursuant to 10 C.F.R. § 710.28.
Steven L. Fine
Administrative Judge
Office of Hearings and Appeals