PSH-21-0033

*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: April 2, 2021 ) Case No.: PSH-21-0033
)
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Issued: June 21, 2021
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Administrative Judge Decision
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Katie Quintana, Administrative Judge:
This Decision concerns the eligibility of XXXX XXXX (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 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
The Individual is employed by a DOE contractor in a position that requires him to hold a security
clearance. As part of the investigation for his security clearance, the Individual completed an
Electronic Questionnaires for Investigations Processing (e-QIP) in October 2018. Ex 6. In response
to the financial questions, the Individual indicated that he had failed to file his Federal and state
taxes for the 2014-2017 tax years. Id. at 41-42. Subsequently, the Local Security Office (LSO)
asked him to complete a Letter of Interrogatory (LOI). Ex. 5. Due to unresolved security concerns,
the LSO informed the Individual, in a Notification Letter dated May 29, 2020 (Notification Letter),
that it possessed reliable information that created substantial doubt regarding his 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). Ex.
1.
Upon receipt of the Notification Letter, the Individual exercised his right under the Part 710
regulations by requesting an administrative review hearing. Ex. 2. The Director of the Office of
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.
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Hearings and Appeals (OHA) appointed me the Administrative Judge in the case, and I
subsequently conducted an administrative hearing in the matter. At the hearing, the DOE Counsel
submitted seven numbered exhibits (Exhibits 1–7) into the record. The Individual tendered 2
exhibits (Exhibits A-B) and testified on his own behalf. The exhibits will be cited in this Decision
as “Ex.” followed by the appropriate alphabetical or numeric designation. The hearing transcript in
the case will be cited as “Tr.” followed by the relevant page number.
II. Regulatory Standard
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.
III. Notification Letter and Associated Concerns
As previously mentioned, the Notification Letter included a statement of derogatory information
that raised concerns about the Individual’s eligibility for access authorization. The information in
the letter specifically cited Guideline F of the Adjudicative Guidelines. Guideline F addresses one’s
“[f]ailure to live within one's means, satisfy debts, and meet financial obligations.” Guideline F
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. Among the conditions set forth in
this guideline that could raise a disqualifying security concern is the failure to file Federal or state
income tax returns. Id. at ¶ 19(f).
In citing Guideline F, the LSO relied upon the Individual’s admissions in the LOI that he had not
filed his Federal or state taxes for the 2014-2018 tax years. Ex. 1. The LSO additionally alleged
that, during a March 2019 Enhanced Subject Interview (ESI), the Individual stated his intent to file
his 2014-2018 Federal and state taxes in June 2019, but that he later admitted in his January 2020
LOI that he had not yet filed them. Id.
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IV. Findings of Fact
I have carefully considered the totality of the record in reaching the findings of fact set forth below.
At the hearing, the Individual testified on his own behalf. He stated that, as of the date of the
hearing, his 2014 and 2015 Federal and state taxes had not been filed. Tr. at 9, 12. He further
testified that, in approximately November of 2020, his 2016 and 2017 Federal and state taxes had
been filed and accepted by the appropriate tax authorities. Id. at 9-11; see Ex. B.2 The Individual
explained that his 2018 state taxes were also filed and accepted in November 2020, and although
his 2018 Federal taxes were filed at the same time, they were rejected by the IRS. Id. at 10-12, 14.
He indicated that he did not know why the 2018 Federal taxes were rejected, but that his tax
preparer was working to find an explanation. Id. at 11-12. The Individual noted that he did not
know when the 2014 and 2015 Federal and state taxes would be filed, and additionally, he was
unsure as to when the 2018 Federal tax issue would be resolved. Id. at 14.
The Individual explained that the problems with his taxes began in 2015 when he was unable to
discern the amount of child support he had paid, and he needed this information for his taxes. Id.
at 18-19. By 2016, when his 2015 taxes were due, he stated that he still did not have the child
support information, and this problem continued through to his 2018 taxes. Id. at 19. The Individual
noted that the relevant child support agency was garnishing his wages, and he was attempting to
obtain the child support information directly from the child support agency. Id. at 19, 25. He
acknowledged that he should have examined how much money was being removed from his
paycheck, which is how he eventually obtained the information at some point in 2019.3 Id. at 24-
25
The Individual testified that he knew that he had problems with his taxes in March of 2019, but he
did not contact a tax preparer until August of 2020. Id. at 14-15. When asked why he waited over
a year to begin resolving his tax issues, the Individual explained his difficulty in obtaining the child
support information. Id. at 15, 17. He stated that he could not remember why there was “a gap”
between obtaining the information and beginning to work on resolving the tax issues. Id. at 15.
However, he explained that he has a “problem” with procrastination that impacts both his work and
personal life. Id. at 16. He later stated that the delay between obtaining the child support
information and seeking assistance with filing his taxes was due to his procrastination issue. Id. at
18.
V. Analysis
I have thoroughly considered the record of this proceeding, including the submissions tendered in
this case and the testimony 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
2 I note that the Individual’s Exhibit B contains invoices from the Individual’s tax preparer indicating that the 2016-
2018 returns were prepared. However, the Individual did not submit any documentation that the returns were actually
filed.
3 The Individual could not recall when he obtained the information about his child support payment, but he knew that
it was in 2019. Tr. at 15.
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that the Individual has not sufficiently mitigated the security concerns, as noted by the LSO, with
regard to Guideline F. I cannot find that granting the Individual’s DOE security clearance will not
endanger the common defense and security and is clearly consistent with the national interest.
10 C.F.R. § 710.27(a). Therefore, I have determined that the Individual’s security clearance should
not be restored. The specific findings that I make in support of this decision are discussed below.
As discussed above, failure to meet financial obligations can raise security concerns with regard to
an individual’s trustworthiness and reliability. Guideline F at ¶ 18. An individual may be able to
mitigate the security concerns by demonstrating 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. Id. at ¶ 20(a).
Additionally, demonstrating that arrangements have been made with the appropriate tax authorities
to file the taxes may mitigate the security concerns. See id. at ¶ 20 (g).
Here, the Individual has begun to take steps to mitigate the security concerns related to his tax
situation. He has retained a tax preparer who has successfully filed his 2016 and 2017 Federal and
state taxes, and his 2018 state taxes. See id. However, his 2014 and 2015 Federal and state taxes,
as well as his 2018 Federal taxes, have yet to be successfully filed. Contra id. Although the
Individual is actively working with his tax preparer to successfully file the outstanding tax year
returns, he readily admits that he procrastinated at least eight months in seeking help to file his
taxes when he knew the DOE had concerns about them. Tr. at 15-16.
Although the Individual has taken actions to resolve his tax situation, I cannot find that these actions
are sufficient, at this time, to mitigate the Guideline F security concerns. The Individual has taken
the first steps in resolving the security concerns at issue; however, he has not yet demonstrated
compliance in filing the outstanding tax years, nor has he demonstrated that he can consistently
and reliably file his taxes. Contra Guideline F at ¶ 20(a), (g). For the foregoing reasons, I cannot
find that the Individual has mitigated the DOE’s security concerns under Guideline F.
VI. Conclusion
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 have found that the Individual has not brought forth sufficient evidence to resolve
the security concerns associated with Guideline F. Accordingly, I have determined that the
Individual’s access authorization should not be restored.
The parties may seek review of this Decision by an Appeal Panel under the regulations set forth at
10 C.F.R. § 710.28.
Katie Quintana
Administrative Judge
Office of Hearings and Appeals