PSH-22-0052

*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: February 4, 2022 ) Case No.: PSH-22-0052
)
__________________________________________)
Issued: April 27, 2022
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Administrative Judge Decision
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James P. Thompson III, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXX (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
The DOE employs the Individual in a position that requires possession of a security clearance. The
DOE Local Security Office (LSO) discovered information regarding the Individual’s failure to
meet financial obligations and his history of omitting relevant facts from personnel security
questionnaires. The LSO informed the Individual by letter (“Notification Letter”) that it possessed
reliable information that created substantial doubt regarding his eligibility to possess a security
clearance. In an attachment to the Notification Letter, entitled Summary of Security Concerns
(SSC), the LSO explained that the derogatory information raised security concerns under
Guideline F and Guideline E of the Adjudicative Guidelines.
The Individual exercised his right to request an administrative review hearing pursuant to 10
C.F.R. Part 710. The Director of the Office of Hearings and Appeals appointed me as the
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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Administrative Judge in this matter, and I subsequently conducted an administrative review
hearing. See Transcript of Hearing (Tr.). At the hearing, the Individual testified on his own behalf.
The LSO submitted fourteen exhibits, marked Exhibits (Ex.) 1 through 14.2 The Individual also
submitted fourteen exhibits, marked as the Individual’s Exhibits (Ind. Ex.) 1 through 14.3
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
As indicated above, the LSO first cited Guideline F (Financial Considerations) of the Adjudicative
Guidelines as a basis for concern regarding the Individual’s eligibility to possess a security
clearance. Ex. 1. Guideline F provides that that an individual’s “[f]ailure 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. Conditions that could raise a security concern
include an individual’s “history of not meeting financial obligations” and “[f]ailure to file . . .
federal, state, or local income tax returns or failure to pay [income tax] as required[.]” Id. at ¶ 19(c)
and (f). In the SSC, the LSO cited the following information: in 2020, the Individual had two past
due account balances; the Individual was reprimanded in 2014 for using his company card for
personal expenses and not paying the bill on time; his wages were previously garnished due to a
tax lien; he failed to file federal and state tax returns for several years between 2007 and 2020; and
he has a history of failing to pay his state taxes timely. Ex. 2 at 4-5. The above information justifies
the LSO’s invocation of Guideline F.
The LSO also cited Guideline E (Personal Conduct) as a basis for concern. Ex. 2 at 5. Guideline E
provides that “[c]onduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations can raise questions about an individual’s
reliability, trustworthiness, and ability to protect classified or sensitive information.” Adjudicative
Guidelines at ¶ 15. Conditions that could raise a security concern include “[d]eliberate omission,
concealment, or falsification of relevant facts from any personnel security questionnaire . . . used
to conduct investigations [or] . . . determine national security eligibility or trustworthiness[.]” Id.
at ¶ 16(a). The SSC cited that the Individual failed to report the following information on personnel
security questionnaires: a past due pest control bill that went to collection in 2017, seven delinquent
accounts, several state tax liens, and wage garnishments stemming from tax liens. Ex. 2 at 5-6. The
cited information justifies the LSO’s invocation of Guideline E.
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
2 The LSO’s exhibits were combined and submitted in a single, 288-page PDF workbook. Many of the exhibits are
marked with page numbering that is inconsistent with their location in the combined workbook. This Decision will
cite to the LSO’s exhibits by reference to the exhibit and page number within the combined workbook where the
information is located as opposed to the page number that may be located on the page itself.
3 The Individual’s exhibits were submitted as two separate, multi-page PDF workbooks and several post-hearing
exhibits. The second workbook provides supplemental exhibits that are related to the exhibits in the first workbook.
The post-hearing exhibits are marked together as Individual’s Exhibit 14. Citations to the Individual’s exhibits will
follow the same style as to the LSO’s exhibits.
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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) (strong presumption against the issuance of a security clearance).
An 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). An individual is afforded a
full opportunity to present evidence supporting his or her eligibility for an access authorization.
The Part 710 regulations are drafted to permit the introduction of a very broad range of evidence
at personnel security hearings. Even appropriate hearsay evidence may be admitted. Id. at
§ 710.26(h). Hence, an individual is afforded the utmost latitude in the presentation of evidence to
mitigate the security concerns at issue.
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
Failure to File Tax Returns and Timely Pay Income Taxes
The Individual reported that he failed to timely file tax returns for tax years 2007, 2008, 2009,
2010, and 2011. Ex. 4 at 37-39. During an interview conducted by an investigator from the Office
of Personnel Management (OPM), the Individual stated that he filed the returns for these years in
2014. Ex. 7 at 95. At the hearing, the Individual testified that he completed these returns with the
assistance of an accountant.4 Tr. at 36. However, the record includes an email dated 2021 from a
different Certified Public Accountant (CPA) that reports the Individual had not filed tax returns
for 2010, 2011, or 2012. Ex. 14 at 287.
The Individual also failed to timely file tax returns for 2014, 2015, 2016, 2017, 2018, 2019, and
2020. Ex. 10 at 228; Ex. 13 at 267. At the hearing, the Individual explained his failure by stating
that the process of preparing his tax returns had been overwhelming, including two unsuccessful
attempts to work with different CPA firms. Tr. at 36, 59; see also Ex. 13 at 267. He testified the
first CPA firm did “absolutely nothing” to help him resolve his issues. Tr. at 36. The issues
continued to mount until the Individual’s clearance was suspended in December 2020. Id. at 37.
The Individual hired another CPA that same month who “didn’t do anything either,” which
prompted the Individual to hire a third and final CPA in December 2021. Id. at 37, 39. In a 2021
response letter to the LSO’s Letter of Interrogatory, which preceded the present hearing, the
Individual stated that he failed to “follow up and complete the process” with the first two CPA
firms. Ex. 13 at 267.
4 The record includes an email from a Certified Public Account firm confirming only that the firm prepared the
Individual’s returns from 2004 through 2008. Ind. Ex. 14 at 2.
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The Individual testified that the final CPA helped him successfully complete his federal and state
returns for 2014 through 2020. Tr. at 28. He explained that he started working with the CPA in
early December 2021, and the CPA took about two weeks to complete the returns. Id. at 28-29,
38; Ind. Ex. 1a at 6. The Individual testified that he finished the process by mailing the completed
federal and state returns. Tr. at 34. He received notice from his state tax authority confirming its
receipt of his 2014, 2015, 2016 and 2017 state tax returns. Id. at 31-32; Ind. Ex. 2a at 19; Ind. Ex.
3a at 32; Ex. 4a at 45; Ex. 5a at 57. The Individual testified that, as of the hearing date, he had not
been able to address any federal penalties or fees associate with filing late because the U.S. Internal
Revenue Service (IRS) had not yet supplied him with any information to act upon despite his
several requests.5 Tr. at 35.
The Individual testified that he exercised poor judgment in filing his tax returns late and hiring the
ineffective CPA firms. Id. at 42. He testified that it became a “daunting task” that “was easier to
ignore” than to “try to find a way to fix it.” Id. at 59. He explained that he finally found the right
CPA after he “swallowed a huge amount of pride[.]” Id. at 44. He testified that he is motivated to
meet his obligations going forward because he now understands that he cannot afford the
consequences of failing to timely file his tax returns. Id. at 40.
The record establishes that the Individual had a history of incurring tax liens. He was required to
satisfy state tax liens for tax years 2007, 2009, 2013, and 2017. Ex. 8 at 101-04. He told the OPM
investigator that, generally, these liens resulted from his failure to pay state taxes. Ex. 5 at 48-50;
Ex. 7 at 95-96. He resolved these liens several years before the present hearing and typically within
two years of their original filing date. Ex. 8 at 101-04; Ex. 9(a) at 179; Tr. at 62. At the hearing,
he testified that the liens resulted from property taxes accruing on land he inherited from his
parents. Tr. at 62.
Failure to Satisfy Debts
The SSC cited two unresolved past due debts and the Individual’s disclosure that he had been
disciplined in 2014 for failure to timely pay a debt he incurred on his employer’s credit card.
The first unresolved debt stemmed from work performed by a pest control company. During a
September 2020 interview, an OPM investigator informed the Individual that this debt had been
turned over to collections. Ex. 10 at 245. The Individual told the OPM investigator that he would
take care of the bill “right away.” Id. Six months later, the Individual reported in an email that he
would contact the company to rectify the issue. Ex. 11b at 262. Then, in August 2021, the
Individual reported that he would begin paying off the balance with monthly installments. Ex. 13
at 268. At the hearing, the Individual testified that he finally satisfied the debt in December 2021.
Tr. at 17. He provided a payment receipt indicating the same. Ind. Ex. 12 at 112. He testified that
the debt resulted from services performed without his authorization and that he disputed the
amount with the provider. Tr. at 17.
The second unresolved debt stemmed from a purchase made on credit. Id. at 18. During the
September 2020 OPM interview, the investigator confronted the Individual with the report that the
5 He testified that he submitted two checks to the IRS as part of his 2018 and 2019 returns, and he provided two IRS
account transcripts that demonstrate the funds were credited to his account. Tr. at 32; Ind. Ex. 6 at 67; Ind. Ex. 6(a) at
72; Ind. Ex. 7 at 83; Ind. Ex. 7(a) at 88.
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bank debt was 90 days past due. Ex. 7 at 96. The Individual responded by stating that he would
“look into it right away” and that he was in “a good financial situation.” Id. At the hearing, the
Individual testified that the account was closed in July 2020. Tr. at 18-19. He submitted a letter
indicating that the account had been closed with a zero balance. Ind. Ex. 11. He testified that it
became delinquent because his wife failed to address it, and he indicated that he and his wife have
improved their communication regarding bills. Tr. at 18, 44.
Regarding his failure to timely pay the balance on his employer’s credit card in 2014, the record
includes the Individual’s statement that he used the credit card for personal expenses despite it
being only appropriate for him to use it for work expenses. Ex. 5 at 47. The record includes his
statement to an OPM investigator that the delinquency was due to his wages being garnished to
pay off tax liens. Id. He told the OPM investigator that he satisfied the debt back in 2014. Id. At
the hearing, the Individual could not recall why he used the employer’s credit card for personal
expenses. Tr. at 21. He also testified that, despite his previous statements to the OPM investigator,
he did not recall the debt becoming delinquent. Id. at 21-22.
Failure to Report
The Individual’s 2020 Questionnaire for National Security Positions (QNSP) and credit report in
the record demonstrate that the Individual failed to list his 2017 pest control collection account.
Ex. 10 at 230, 253. The 2020 QNSP demonstrates that he failed to list a state tax lien recorded in
2017. Id. at 230; Ex. 8 at 101. The 2020 and 2014 QNSPs demonstrate that he failed to list a 2013
lien-related garnishment.6 Ex. 10 at 230, 244; Ex. 4 at 40. Additionally, the 2014 QNSP
demonstrates that he failed to report seven delinquent accounts listed in a 2014 credit report. Ex.
4 at 40; Ex. 9a 181-84. Finally, he failed to disclose three tax liens that the record demonstrates
were filed prior to him completing the 2014 QNSP. Compare Ex. 4 at 39-30 with Ex. 8 at 102-04.
At the hearing, the Individual testified that the omissions cited in the SSC resulted from his failure
to read carefully. Tr. at 69-70. For example, he testified that he did not recall the QNSPs
specifically requesting that he disclose wage garnishments. Id. at 67-68. He testified that “all kinds
of stuff comes across your desk that you sign[,]” and he provided the example of an annual
“computer access form” containing “really small print” that you “sign and date” and “continue
with your computer access.” Id. at 67. He then confirmed that he answered “no” to the question in
the QNSP regarding whether he had wage garnishments to report. Id. at 71. He testified that, in
retrospect, he was “in error for not reading the question completely[,]” and he did not “intend[] to
mislead the Government on the questionnaire[.]” Tr. at 68-70.
V. ANALYSIS
A. Guideline F Considerations
Based on the record in this case, the following conditions may apply to mitigate the Guideline F
security concerns:
6 The Individual disclosed the garnishment during a 2020 OPM interview. Ex. 7 at 95.
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(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;
. . .
(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.
After reviewing the record, I find that neither mitigating condition applies to resolve the Guideline
F concerns. First, I conclude that the Individual failed to demonstrate that he filed his tax returns
for 2010, 2011, and 2012 because his testimony is undermined by a recent letter from a CPA firm
indicating that there is no record that he filed these returns.
Second, the Individual’s delay and poor judgment in addressing his obligation to file tax returns
also prevent me from concluding that he has resolved the Guideline F security concerns. The record
establishes a pattern of the Individual continuing to engage in this concerning conduct despite
being directly notified that his conduct jeopardizes his security clearance. There is no dispute the
Individual failed to timely file more than a decade’s worth of tax returns over two separate, multi-
year spans. He reported his initial, multi-year failure in a QNSP, and he discussed the issue with
an OPM investigator. The Individual thereby knew that his failure to file tax returns presented a
concern. After allegedly filing his first batch of past-due returns with the help of an accountant in
2014, he immediately failed to file federal and state tax returns year after year until the DOE
suspended his security clearance. The Individual’s own pattern of conduct provides little assurance
that he is unlikely to engage in the same behavior again.
Furthermore, I find it concerning that the Individual blamed the CPA firms’ alleged ineffectiveness
for delaying the resolution of his tax issues. Perhaps it would mitigate some of the concern, if true,
but he admitted that he failed to adequately assist the CPA firms, which I find to be the more likely
reason for their ineffectiveness and consistent with his failure to timely file his tax returns. Even
if I were to find the CPA firms to blame for their part, I would still find concerning the fact that he
ignored the issue year after year before finding an effective CPA. His delay in doing so is more
troubling given his previous success working with a CPA to file his first batch of delinquent tax
returns in 2014. Furthermore, his most recent conduct again evinces delay and poor judgment: he
waited a full year after his clearance was suspended in December 2020 to locate and work with his
current CPA, who prepared his delinquent returns in a matter of weeks in December 2021.
The above findings establish that the Individual’s behavior did not happen so long ago, it was not
so infrequent, nor did it occur under such circumstances that it is unlikely to recur or cast doubt on
the individual’s current reliability, trustworthiness, or good judgment. It has been a consistent
pattern. Accordingly, I have significant doubt regarding the Individual’s present reliability,
trustworthiness, or good judgment.
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In reaching my above findings, I duly considered the evidence that the Individual had resolved the
outstanding pest control and bank collection accounts before the hearing date. The Individual’s
delay in resolving the pest control bill is another example of concerning conduct. Despite stating
he would address the issue in September 2020, the Individual waited until December 2021 to
resolve the debt.
I have also considered the fact that the state-tax liens cited in the SSC were released within two
years of being filed. However, for the reasons stated above, I still have significant concern
regarding the Individual’s present reliability, trustworthiness, or good judgment. Accordingly, I
conclude that the Individual has not resolved the Guideline F security concerns.
B. Guideline E Considerations
Based on the record, the Individual may mitigate the Guideline E security concerns if:
(c) The offense is so minor, or so much time has passed, or the behavior is so
infrequent, or it happened under such unique circumstances that it is unlikely to
recur and does not cast doubt on the individual's reliability, trustworthiness, or good
judgment;
(d) The individual has acknowledged the behavior and obtained counseling to change
the behavior or taken other positive steps to alleviate the stressors, circumstances,
or factors that contributed to untrustworthy, unreliable, or other inappropriate
behavior, and such behavior is unlikely to recur[.]
Adjudicative Guidelines at ¶ 17.
I conclude that neither of the above mitigating conditions apply to resolve the Guideline E
concerns. In short, the Individual has not demonstrated that his behavior is unlikely to recur.
First, I find concerning the Individual’s testimony that he did not adequately read the QNSPs and
his comparing them to “all kinds of stuff” that comes across his desk to sign. The latter
characterization demonstrates his continuing failure to appreciate the importance of his obligation
to report accurate information on security questionnaires. I also find concerning the Individual’s
testimony that he did not recall having to report wage garnishments. He needed only to look
through the LSO’s exhibits to clarify his understanding, but his testimony demonstrates that on the
hearing date he still doubted his obligation to report wage garnishments in the QNSP, a view he
abandoned when directed to his response to that specific question in his QNSP. I do not find his
testimony credible, and I conclude that the Individual has not taken adequate positive steps to
alleviate the circumstances or factors that contributed to him omitting relevant information from
security questionnaires. I remain concerned regarding his reliability, trustworthiness, and ability
to exercise good judgment. Accordingly, I conclude that the Individual has not resolved the
Guideline E security concerns.
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VI. 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 and Guideline E 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 SSC. Accordingly, I have determined that
the Individual’s access authorization should not be restored.
This Decision may be appealed in accordance with the procedures set forth at 10 C.F.R. § 710.28.
James P. Thompson III
Administrative Judge
Office of Hearings and Appeals