PSH-20-0014

*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: November 19, 2019 ) Case No.: PSH-20-0014
)
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Issued: February 10, 2020
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (the Individual) to hold an access
authorization under the United States Department of Energy’s (DOE) regulations, set forth at 10
C.F.R. Part 710, “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’s access
authorization should not be restored.
I. BACKGROUND
A DOE contractor employs the Individual in a position that requires him to hold access
authorization. The Individual completed a Questionnaire for National Security Positions (QNSP)
on November 14, 2016, in connection with his access authorization. Exhibit (Ex.) 6 at 54. The
Individual disclosed on the QNSP that he failed to file federal income tax returns or pay federal
income taxes for the 2014 and 2015 tax years. Id. at 48–53.
As part of its evaluation of the Individual’s continued eligibility for a security clearance, the local
security office (LSO) issued the Individual a letter of interrogatory (LOI) on April 18, 2019,
concerning the status of his unfiled tax returns. Ex. 5 at 1. In his response to the LOI, the Individual
indicated that he had not filed federal or state income tax returns or paid federal or state income
taxes for the 2014, 2015, 2016, 2017, and 2018 tax years. Id. at 1–2.
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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On September 18, 2019, the LSO issued the Individual a letter in which it indicated that it
possessed reliable information that created substantial doubt regarding the Individual’s eligibility
to hold a security clearance. Ex. 1. In an attachment to the letter (Summary of Security Concerns),
the LSO explained that the derogatory information raised security concerns under Guideline F
(Financial Considerations) of the Adjudicative Guidelines. Id.
The Individual exercised his right to request an administrative review hearing pursuant to 10
C.F.R. Part 710. Ex. 2. The Director of the Office of Hearings and Appeals appointed me as the
Administrative Judge in this matter, and I subsequently conducted an administrative hearing. The
LSO submitted seven numbered exhibits (Ex. 1–7) into the record. The Individual submitted
thirteen exhibits (Ex. A–M) into the record. The Individual presented his own testimony, and the
LSO did not call any witnesses.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline F (Financial Considerations) of the Adjudicative Guidelines 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 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 or sensitive information.
Adjudicative Guidelines at ¶ 18. The Summary of Security Concerns listed as relevant facts the
Individual’s failure to file federal or state income tax returns for the 2014, 2015, 2016, 2017, or
2018 tax years. Ex. 1. The LSO’s allegations that the Individual failed to file federal and state
income tax returns justify the LSO’s invocation of Guideline F. 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.
§ 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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IV. FINDINGS OF FACT
The Individual disclosed on his November 2016 QNSP that he had not timely filed his federal
income tax returns or paid federal income taxes for the 2014 and 2015 tax years. Ex. 6 at 47–48.
At the hearing, he claimed that his tax troubles originated as a result of failing to file IRS Form
8332 (the “Tax Form”) with his 2013 federal income tax return. Tr. at 2; see also Ex. 2 at 1.
(summarizing the bases for the Individual’s appeal and identifying failing to file IRS Form 8332
as the initial cause of his tax delinquencies). He explained that, pursuant to a divorce decree, he
was entitled to claim his children as dependents, which necessitated filing the Tax Form. Tr. at
12–13. However, thinking the IRS already had a copy of the form because he had filed it the
previous year, the Individual did not file the Tax Form with his 2013 federal tax return, and the
IRS refused to process the tax return. Id. at 13; see also Ex. H at 1 (reflecting that the IRS rejected
the Individual’s 2013 federal tax return by letter dated November 26, 2014, because he did not
include the Tax Form with his federal tax return and directed the Individual to send a reply within
twenty days).
The Individual claimed that he had difficulty getting the signed form from his wife and then once
he did get the form, he lost it when his car was stolen with the Tax Form inside.2 Tr. at 13–14.
The Individual attributed his failure to take action to being busy at work, moving to a new
residence, losing additional records needed to file subsequent tax returns, and being “afraid of
doing something wrong . . . .” Id. In the face of these challenges, the Individual decided to “let it
slide for a while.” Id.
Approximately thirty months after he submitted the QNSP and in response to the LOI, the
Individual indicated that he had still not resolved his tax situation and that he had fallen further
behind on filing income tax returns, having not filed 2014 through 2018 tax returns. Ex. 5.
According to the Individual, he had “received the forms and [was] preparing to file all required
taxes,” by May 15, 2019. Id. The Individual testified that he finally filed his 2015, 2016, 2017, and
2018 federal and state income tax returns in December 2019 and provided copies of the completed
tax returns. Id. at 15–16; Ex. D; Ex. E; Ex. F; Ex. G.3 He reported that he did not file his 2014
federal tax return on the advice of an IRS representative with whom he spoke by telephone in
2018. Tr. at 16–17.
Regarding his state taxes, the Individual offered into evidence a letter from his state taxing
authority which indicated that his 2015 state personal income tax had been assessed at $336.83.
Ex. L at 2. He testified that he did not owe state personal income taxes for any other tax years, and
that he had paid the balance of his state personal income taxes by phone shortly before the hearing.
2 The Individual testified that he contacted his ex-wife to ask for a new copy of the Tax Form. Tr. at 13. He stated
that several months passed before she provided him with a signed copy. Id. After receiving the Tax Form from his
wife, he placed it in his vehicle and did not take any further action for a number of years. Id. at 13–14. In November
2016, the Individual’s vehicle was stolen with the Tax Form still inside. Id. at 14; Ex. 2 at 2. After the theft of his
vehicle, the Individual once again requested that his ex-wife provide him with a copy of the Tax Form. Id. Even after
receiving the form from his wife, he still did not file the form or any of his tax returns until December 2019. Id.
3 The Individual submitted copies of completed federal tax returns, but did not provide documentation demonstrating
that he had filed federal tax returns.
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Tr. at 15, 18–19, 23; Ex. L at 1 (summarizing the Individual’s payments to his state taxing
authority). The Individual asserted that the state taxing authority had “verbally confirmed that [he
would] not be required to file [a] 2014 [state] tax return . . . .” Ex. L at 1. The Individual had no
information concerning the status of his federal income tax returns or tax liability, and speculated
that it would be several weeks before he received a response from the IRS. Tr. at 24.4
The Individual asserted that his tax troubles were “caused because of interactions with [his] ex-
wife,” that he would not experience similar issues in the future because his children were now
adults who he would not claim as dependents, and that he would not need information from his
ex-wife in the future to file his tax returns. Id. at 20. He further claimed that he got busy and let
his taxes lapse. Tr. at 12, 14, 15, 17. When asked why he had waited until December 2019 to take
action to address his tax situation despite receiving the Statement of Security Concerns in August,
the Individual indicated that he had been “busy at work.” Id. at 15. The Individual concluded that
he had ample savings on hand, and that he could easily pay any taxes the IRS might notify him
that he owes. Id. at 20–21.
VI. ANALYSIS
The Individual did not contest the accuracy of the factual assertions in the Statement of Security
Concerns, but indicated that he had filed state and federal income tax returns in December 2019
and paid his state income taxes in January 2020 to resolve the security concerns. Tr. at 10–11, 15.
An individual can mitigate security concerns related to failure to file or pay taxes under Guideline
F of the Adjudicative Guidelines by showing that:
 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;
 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; or,
 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)–(b), (g).5
The first two mitigating condition under Guideline F are not applicable in this case because the
Individual’s behavior was frequent, recent, and casts significant doubt on his reliability and
judgment because he irresponsibly delayed filing or paying taxes for many years. While the
Individual attributed his tax problems to his ex-wife, he allowed years to go by without taking any
action to resolve his tax situation even after his ex-wife provided him with the Tax Form.
4 By email dated January 31, 2020, the Individual indicated that he had not heard from the IRS and had not been able
to “retrieve any updates about his tax returns” on the IRS website. Ex. M.
5 The other four mitigating conditions under Guideline F concern non-tax debts and unexplained affluence, and are
obviously not applicable in this case. Adjudicative Guidelines at ¶ 20(c)–(f).
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Moreover, the Individual indicated in his April 2019 response to the LOI that he would file his
taxes by May 15, 2019, but did not take any action until December 2019. The Individual was
responsible for these lengthy delays, not circumstances outside of his control, and his decision to
defer his legal obligation to file and pay taxes because he was “busy” and “afraid of doing
something wrong” casts serious doubt on his reliability and judgment. Accordingly, I find that the
first two mitigating conditions under Guideline F are inapplicable in this case. Guideline F at
¶ 20(a)–(b).
The Individual has not fully satisfied the other mitigating condition potentially applicable in this
case concerning making arrangements to file and pay taxes. The Individual provided evidence that
he has resolved his state tax obligations. However, he did not demonstrate that he filed his federal
income tax returns, did not know his federal income tax liability, and has not made any
arrangements to pay his federal income taxes. While the Individual testified that he contacted the
IRS and is waiting for a response concerning the amount he owes, the Individual’s delay in taking
steps to ascertain what he owed was of his own making and prevents him from satisfying the
mitigating condition. Guideline F at ¶ 20(g).
Having concluded that the Individual’s failure to file or pay federal or state income taxes for five
consecutive tax years was the product of his own poor judgment and inaction, I find that none of
the mitigating conditions under Guideline F are applicable in this case. Accordingly, I find that the
Individual has not resolved the security concerns asserted by the LSO under Guideline F.
VII. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
the 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 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 Summary of Security Concerns. Accordingly, I have determined that the
Individual’s access authorization should not be restored. Either party may seek review of this
Decision by an Appeal Panel pursuant to 10 C.F.R. § 710.28.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals