PSH-21-0037

*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-21-0037
)
__________________________________________)
Issued: June 24, 2021
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Administrative Judge Decision
_____________________
Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX (hereinafter referred to as “the
Individual”) to hold an access authorization under the Department of Energy’s (DOE) regulations
set forth at 10 C.F.R. Part 710, Subpart A, entitled “General Procedures for Determining Eligibility
for Access to Classified Matter of 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 which requires that she hold a
security clearance. To begin the process, the Individual completed, signed, and submitted a
Questionnaire for National Security Positions (QNSP), dated May 7, 2018. Ex. 9. Based on the
information provided therein, the Local Security Office (LSO) obtained the Individual’s credit
report on August 16, 2018, and again on November 14, 2019. Ex. 7; Ex. 8. The LSO further
requested that the Individual complete a Letter of Interrogatory (LOI), which she signed and
submitted on January 10, 2020. Ex. 6. After reviewing this information, the LSO determined that
unresolved derogatory information remained in the record which raised significant security
concerns about the Individual Accordingly, the LSO began the present administrative review
proceedings on July 8, 2020, by issuing a Notification Letter informing the Individual that the LSO
possessed reliable information that created substantial doubt regarding her eligibility to hold a
1 Access to authorization is defined as “an administrative determination that an individual is eligible for access to
classified mater 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 to authorization or security clearance
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security clearance. The Notification Letter further informed the Individual that she was entitled to
a hearing before an Administrative Judge in order to resolve these substantial doubts. 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. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e), and (g), the
Individual offered her own testimony and that of one witness. See Transcript of Hearing, Case No.
PSH-21-0037 (hereinafter cited as “Tr.”). The DOE counsel submitted ten exhibits, marked as
Exhibits 1 through 10 (hereinafter cited as “Ex.”). The Individual submitted nine exhibits, marked
as Exhibits A through I.
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 her eligibility for a security
clearance. That information pertains to Guideline F (Financial Concerns) 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) provides that an individual’s 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.” Guideline F at ¶ 18. Under Guideline F, the LSO alleged: (1) The Individual has an
unpaid collection account in the amount of $3,418; (2) the Individual has unpaid charge-off
accounts in the amount of $10,176; (3) the Individual failed to file personal income tax returns
with the Internal Revenue Service (IRS) for tax years 2013 through 2017; and (4) the Individual
failed to file state personal income tax returns for tax years 2013 through 2017. Ex. 1 at 1-2.
Guideline F specifically states that an “[i]nability to satisfy debt, [u]nwillingness to satisfy debts
regardless of the ability.., [a] history of not meeting financial obligations, and [f]ailure to
file…Federal, state, or local income tax returns or failure to pay [them] as required” are all
potentially disqualifying conditions. Guideline F at ¶ 19. Accordingly, the LSO’s security concerns
under Guideline F are justified.
III. Regulatory Standards
A DOE administrative review process under Part 710 requires me, as Administrative Judge, to
issue a Decision that reflects my comprehensive, common-sense judgement, made after
consideration of all of the relevant evidence, favorable or 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
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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
personal 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.
IV. Findings of Fact
In her QNSP, the Individual acknowledged that she had failed to file or pay Federal or state taxes
within the past seven years, specifically failing to file taxes for tax years 2013 through 2017. Ex.
9 at 41-43. She estimated that she owed approximately $2,500 in Federal and state income taxes
for each tax year. Ex. 9 at 42-43. The Individual clarified that she was in the process of “setting up
the withholding” for each tax year. Ex. 9 at 42-43. The Individual also disclosed various other
delinquencies totaling approximately $15,800 and indicated that she had sought the assistance of
a credit counseling service to pay or settle the debts. Ex. 9 at 45-50.
As part of the investigation, the Individual was interviewed by an OPM investigator on February
5, 2019. Ex. 10 at 69. The Individual was confronted with information that was incorrectly stated
or omitted from her QNSP. Ex. 10 at 74-77. The Individual stated that she was unaware of some
of the financial delinquencies that the investigator presented to her and was afforded the
opportunity to provide additional documentation subsequent to their meeting. Ex. 10 at 77. She
disclosed that from late 2018 to July 2019, her wages were garnished every pay period to satisfy
her unpaid state income taxes for tax years 2013 through 2017. Ex. 10 at 77.
In her LOI, the Individual indicated that she failed to pay her Federal and state income taxes for
tax years 2013 through 2018, because she knew she could not afford to satisfy the outstanding
amounts owed. Ex. 6 at 1-3. She did, however, assert that the amount owed in state income taxes
for tax years 2013 through 2017 has since been paid. Ex. 6 at 1-2. The Individual stated that she
understood her responsibility to file federal and state income taxes, and clarified that “[g]oing
forward, [she] will be filing federal and state tax returns each year and on time.” Ex. 6 at 4. She
further stated that she had begun making payments on various other delinquent accounts and
provided information indicating that although payments had not yet begun on several past due
accounts, she had begun payments and even satisfied others in full. Ex. 6 at 4-12. The Individual
attached several letters from creditors to her LOI, providing proof that she had satisfactorily
discharged several delinquencies. Ex. 6 at 25-28.
Hearing Testimony
The hearing began with the testimony of the Individual’s witness, a former coworker and friend
who has known the Individual since 2017 and has since remained in regular contact with the
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Individual. Tr. at 9. The witness explained that the Individual first told her about her failure to file
taxes in 2019, to which the witness responded with some advice on how to resolve the issue. Tr.
at 10. She stated that the Individual expressed to her how overwhelmed she had become by the
fact that she had repeatedly failed to file her income taxes. Tr. at 10-12.
The witness went on to testify as to her pride regarding the Individual for her efforts in resolving
her financial issues. Tr. at 10-12. When asked if she feels the Individual “learned from this
experience,” the witness responded, “Oh, absolutely, absolutely.” Tr. at 11. The witness also
confirmed that she believes the Individual to be reliable and went on to state that she would trust
the Individual “with anything,” as the Individual is “very, very trustworthy.” Tr. at 14-15. She
went on to explain that the Individual moved in with her mother, reduced her shopping trips, and
“buckl[ed] down” in an effort to become more fiscally responsible. Tr. at 17-18.
The Individual testified that she had no performance or disciplinary issues in her past and current
positions. Tr. at 20-21. She attributed her financial issues to “living outside of [her] means and
making bad decisions.” Tr. at 21. She also stated that after her father’s death, she wanted to make
some financial contributions to her mother’s household. Tr. at 21, 23, 46-47. The Individual did
indicate that she was initially able to make the regular minimum payments on the outstanding
accounts but began falling behind on several of them within a few months of each other, which
resulted in a “trickle [down] effect.” Tr. at 47-48.
When the issue of her duty to file income taxes was addressed at the hearing, the Individual stated
that she had been filing her taxes annually and on time prior to 2013. Tr. at 22. She began spending
more, contributing more to her mother’s finances, and ultimately began to claim dependents for
tax withholding purposes to ensure she had more money in her paycheck. Tr. at 22. Although she
asserted that she did not know that she was precluded from claiming dependents if she did not have
any, this did result in an additional several hundred dollars in her regular paycheck. Tr. at 25.
When it came time to file her taxes, she realized that she “was going to owe,” and that she “knew
[she] didn’t have it.” Tr. at 22. At that point, the Individual became overwhelmed, “made bad
choices,” and “avoided it,” because she “didn’t know how to handle it and fix it.” Tr. at 27. The
Individual testified that she had given some thought to reducing the number of dependents she
claimed on her deductions, but she ultimately decided against this course of action. Tr. at 28-29,
31-32. The Individual finally changed the deductions she was claiming when she began her current
position in 2018. Tr. at 28. She also stated that the QNSP she completed in 2018 was the primary
impetus for resolving her financial issues. Tr. at 36-38.
Regarding the matter of the Individual’s state income taxes, the Individual’s paycheck had been
regularly garnished as a result of her failure to file her taxes. Tr. at 32-33. Once or twice, after she
was notified of the amount she owed in delinquent state income taxes, the Individual made contact
with the appropriate entity to establish a payment plan, which resulted in the agreed-upon amounts
being deducted from her paycheck. Tr. at 34. According to the Individual, all of her tax returns
have been accepted by the state, she has satisfied the outstanding amounts for tax years 2013
through 2016, and she is currently making payments pursuant to a payment plan to satisfy the
outstanding amount for tax year 2017. Tr. at 57-58, 65-66.2
2 See Ex. C, Ex. D, Ex. E, Ex. F, and Ex. G
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The Individual began the process of resolving her federal tax delinquencies in 2020 by engaging
the services of a Certified Public Accountant (CPA) and providing him with all relevant documents
for tax years 2013 through 2017 in July 2020. Tr. at 55-56. The Individual mistakenly believed
that once the CPA had completed the process of preparing the returns, which he did in August
2020, he would file them as well. Tr. at 78. However, the returns were not filed with the IRS until
October 2020, after the Individual was informed that it was her responsibility to mail the returns.
Tr. at 78. At the time of the hearing, the IRS had accepted and processed the tax returns for tax
years 2013 and 2017. Tr. at 57.3 Her ultimate goal is to establish a payment plan with the IRS for
all tax years, contemporaneously. Tr. at 59. Accordingly, she has not yet made any payments
toward the satisfaction of her outstanding federal taxes, although she did acknowledge that she
could begin making lump sum payments on these outstanding amounts. Tr. at 60, 64. In total, for
tax years 2013 through 2017, the Individual owes approximately $33,000. Tr. at 59, 61. The
Individual confirmed that she filed federal income taxes for tax years 2018 and 2019 in 2020, but
has not yet filed her federal income taxes for tax year 2020, despite the fact that the deadline to
file had passed by the time of the hearing. Tr. at 67. The Individual did not file for an extension
and felt that “if [she] file[d] within the [following] week, [it was] not going to be a problem.” Tr.
at 75. The Individual also admitted that she waited to file for tax years 2018 and 2019, stating, “I
guess I just felt like, if you’re going to file, you need to do all of it, not just the…the current ones.”
Tr. at 70-71.
In an effort to resolve the delinquent charge-off and collection accounts, the Individual contacted
a national debt consolidation company, which instructed her to provide them with a monthly cash
deposit. Tr. 38. The company informed her that once they had collected enough money to offer a
settlement, they would contact relevant creditors to begin negotiations. Tr. at 38-39. The Individual
felt this process was not expeditious enough and began contacting creditors herself. Tr. at 39-40.
Not only did the Individual resolve debts listed in the Summary of Security Concerns (SSC), but
she also resolved debts that were not listed on the SSC. Tr. at 41.4 The Individual stated that she
“kind of finished paying it all off so that [she] could have a letter for every single item in [the SSC]
paid off when [she] sent in the request for a hearing.” Tr. at 48. At one point in 2015 or 2016,
although it came with a high interest rate, the Individual took out a loan in an attempt to make
payments on other outstanding debts. Tr. at 50-52. This loan was ultimately satisfied. Tr. at 53.5
Individual’s Evidence
The Individual submitted a credit report dated April 21, 2021. Ex. A. The credit report provided
that the delinquent collection account and charge-off accounts totaling approximately $13,594
were closed after being “paid satisfactorily” or “legally paid in full for less than the full balance.”
Ex. A at 12-13, 19-20, 30.
3 See Ex. G and Ex. I.
4 See Ex. 6 and Ex. A. The Individual indicated that she worked with approximately four creditors to resolve her debts
prior to receiving the SSC, as well as returning her student loan accounts to good standing. Tr. at 43-44. The Individual
managed to satisfy three or four debts prior to seeing the special investigator in 2019. Tr. at 45.
5 See Ex. A.
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The Individual also submitted copies of the tax returns she filed for tax years 2013, 2014, 2015,
2016, 2017, as well as a letter from the IRS indicating their receipt of the Individual’s 2013 tax
return, confirming the amount owed. Ex. C; Ex. D; Ex. E; Ex. F; Ex. G; Ex. I.6 The tax returns
admitted into the record indicate that the Individual’s delinquent federal taxes amount to
approximately $30,000. Ex. C at 2; Ex. D at 2; Ex. E at 2; Ex. F at 2; Ex. G at 2.
V. Analysis
The Adjudicative Guidelines provide that an Individual can 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 (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;
(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 Individual has made commendable strides in mitigating the listed Guideline F concerns. She
provided testimony and evidence indicating that she satisfied the unpaid collection account
amounting to $3,418 as well as the unpaid charge-off accounts totaling $10,176. Ex. A at 12-13,
6 The Individual also submitted certified mail receipts, indicating that documents had been sent and delivered to the
tax board in the relevant State. Ex. B. As was consistent with her testimony, the Individual established a savings
account and provided a budget accounting of her projected monthly bills and expenses, including the approximate
monthly payments she will be making in an installment plan with the IRS. Ex. H.
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19-20, 30. The Individual’s efforts are commendable. However, although the Individual began the
process of fulfilling the previously neglected tax obligations for tax years 2013 through 2017, some
concerns remain. As an initial matter, the Individual freely and forthrightly acknowledged her tax
obligations in her response to the LOI, thus evidencing that she understood her duty to file. Ex. 6
at 4. She further stated in her LOI that she would endeavor to file her taxes on time, as they became
due. Ex. 6 at 4. However, her testimony reveals that she missed the May 17, 2021, deadline to file
income taxes for the 2020 tax year. Tr. at 67.7 In explaining this oversight, the Individual qualified
her decision by indicating she was preoccupied with resolving her past delinquent taxes, and
further, that filing her 2020 taxes a few days late “[was] not going to be a problem.” Tr. at 75.”
Unfortunately, this decision evidences poor judgement. Accordingly, despite the Individual’s
commendable efforts, I cannot conclude that the events that transpired are unlikely to recur, not
only because the Individual acknowledged she was living outside her means for a number of years
and failed to take action to change her circumstances, but because her statement concerning tax
year 2020 evidences poor decision making continuing into the present. The Individual
acknowledged her responsibility to satisfy her tax obligations, and yet, failed to take proper action
for tax year 2020, which leads me to the conclusion that she did not act in good faith to discharge
this ongoing obligation, and further, that her financial situation is not entirely under control.
Accordingly, I cannot find the Individual has resolved the Guideline F concern under ¶ 20(a), (c),
(d).
It is clear that the Individual’s desire to provide financial assistance to her family contributed, in
part, to her financial struggles. However, on more than one occasion, the Individual admitted that
she should have changed her tax exemptions. Although she indicated that she felt as though she
needed the extra income in her regular wages, the Individual could not provide an explanation as
to why she failed to correct the exemptions. Tr. at 28-29, 31-32. Therefore, I cannot find that the
Individual behaved responsibly under the circumstances to resolve Guideline F concerns pursuant
to ¶ 20(b).
Additionally, although the Individual took the step of reaching out to a CPA and completed her
tax returns, she did not provide any evidence that she has established a payment arrangement with
the IRS. Accordingly, the mitigating factor at ¶ 20(g) is not present in this case.
I need not address the mitigating factors described in Guidelines F at 20(e) and (f), as the Individual
did not dispute the fact that she is responsible for the debts and presented no evidence of any
affluence.
VI. Conclusion
For the reasons set forth above, I conclude that the LSO properly invoked Guideline F. 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. Therefore, I cannot conclude that granting DOE
access authorization to the Individual “will not endanger the common defense and security and is
7 The deadline for filing in 2021 was extended by the IRS.
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clearly consistent with the national interest.” 10 C.F.R. § 710.7(a). Accordingly, I have determined
that the Individual should not be granted access authorization. The parties may seek review of this
Decision by an Appeal Panel under the procedures set forth at 10 C.F.R. § 710.28.
Kimberly Jenkins-Chapman
Administrative Judge
Office of Hearings and Appeals