PSH-24-0097

*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 5, 2024 ) Case No.: PSH-24-0097
)
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Issued: August 14, 2024
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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 be granted.
I. BACKGROUND
The Individual is employed by a DOE contractor in a position that requires him to hold a security
clearance. He completed a Questionnaire for National Security Positions (QNSP) in June 2023, in
which he explained that he had not filed his state or federal taxes for the 2021 tax year due to
medical issues and several hospital stays. Exhibit (Ex.) 7 at 64.
The LSO subsequently issued the Individual a Letter of Interrogatory (LOI), which the Individual
completed in January 2024. Ex. 5. In response to questions in the LOI, the Individual disclosed
that he had not filed federal or state tax returns for the 2021 or 2022 tax years. Id. at 23. The
Individual indicated that he was in the process of filing his late taxes and explained he had not
filed them yet because he had been caring for his elderly father and dealing with his own serious
illness. Id.
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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The LSO then issued the Individual a letter in which it notified him that it possessed reliable
information that created substantial doubt regarding his eligibility to hold a security clearance. In
a Summary of Security Concerns (SSC) attached to the letter, the LSO explained that the
derogatory information described above raised security concerns under Guideline F (Financial
Considerations). Ex. 1.
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 (OHA) appointed
me as the Administrative Judge in this matter, and I subsequently conducted an administrative
hearing. The LSO submitted eight exhibits (Ex. 1–8) and the Individual submitted eight exhibits
(Ex. A–H). The Individual testified on his own behalf. See Transcript of Hearing, OHA Case No.
PSH-24-0097 (hereinafter cited as “Tr.”). The LSO did not call any witnesses. Id. at 3.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline F (Financial Considerations) as the basis for its determination that the
Individual was ineligible for access authorization. Ex. 1 at 5. “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 LSO cited the Individual’s failure to file his state and federal
taxes for 2021 and 2022. Ex. 1 at 5. The cited information justifies the LSO’s invocation of
Guideline F. See Adjudicative Guidelines at ¶ 19(f) (indicating that failure to file tax returns as
required could raise a security concern under Guideline 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
Dep’t 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).
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. Id. § 710.26(h).
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Hence, an individual is afforded the utmost latitude in the presentation of evidence to mitigate the
security concerns at issue.
IV. FINDINGS OF FACT
The Individual submitted several pieces of documentary evidence that showed he had made
appropriate arrangements to file his tax returns. Firstly, the Individual submitted copies of his 2021
and 2022 state and federal tax returns. Ex. A; Ex. B; Ex. D; Ex. E. He provided a picture of the
certified mail receipts that he had been given after mailing his 2021 state, 2021 federal, 2022 state,
and 2022 federal taxes to the appropriate tax authorities. Ex. H. The receipts showed that each
piece of mail was mailed in March of 2024, to an appropriate address, and contained tracking
numbers that now show each piece of mail was delivered. Id. The Individual also presented copies
of the tax refunds checks he received from the state government to show that the state had received
and processed his tax returns. Ex. G. The Individual also provided a copy of his 2023 tax returns,
state and federal. Ex. C; Ex. F.
The Individual testified that in 2021, following his divorce from his spouse, he moved into a small
apartment on his father’s property where he spent time helping to care for his father and his father’s
home. Tr. at 12, 28; Ex. 7 at 44, 52. After his father passed away in October 2021, the Individual
inherited his father’s house and moved into it. Tr. at 12. During that same period, the Individual
began a new job which increased his workload to approximately sixty to seventy hours a week
instead of the standard forty hours he had been previously working. Id. In 2021, the Individual also
had to close a small business he had been operating by himself. Id. at 14. He also admitted that
2021 was the first tax year for which he filed his own taxes after his divorce. Id. at 28.
In the beginning of 2022, the Individual experienced a serious medical condition that led him to
be hospitalized for about two weeks. Id. at 10; Ex. 5 at 23; Ex. 8 at 122. Because the Individual
knew he would require a significant period of recovery from this hospitalization, he filed an
extension for his 2021 taxes, which would allow him to file his 2021 tax returns in October of
2022 instead of April of 2022. Tr. at 10–11, 13. Around the end of October 2022, the medical
condition returned, and the Individual had a major surgery to correct the issues caused by his
medical condition. Id. at 11. The surgery required several follow up appointments and a long
recovery. Id. at 12. He admitted that he did not get a second extension for his taxes. Id. at 13. The
Individual also failed to file his state or federal tax returns for 2022 by April of 2023. Id.
The Individual stated that, in addition to the serious medical issues, the closing of his small
business required additional tax preparation that he was initially unsure how to accomplish. Id. at
13–14. He testified that “[a]s soon as I started the application process for the job with [DOE], I
immediately started getting all [the tax information] out and doing the research to figure out how
to do my 2021 taxes with the business.” Id. at 14. The Individual claimed that he did contact a tax
professional for assistance with his 2021 tax returns, but after a long discussion, they decided that
the Individual could complete the tax returns without help. Id.
The Individual filed both his 2021 and 2022 state and federal tax returns in March of 2024. Id. at
15; Ex. H. He attempted to obtain tax transcripts that showed he had filed the federal taxes, but the
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IRS’s website displayed an error code when he attempted to request a copy of his tax transcript
and would not allow him to request an email copy of the records. Tr. at 26; Ex. G. The Individual
provided a screen shot of the error code he received. Ex. G. He subsequently called a phone number
on the IRS website that allowed him to request paper copies of his tax transcripts, but the
documents did not arrive prior to the hearing. Tr. at 26.
V. ANALYSIS
Guideline F lists seven conditions that could mitigate a concern raised by financial irregularities:
(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.
The Individual has mitigated the concerns pursuant to mitigating factor (g). The Individual
provided evidence that he had filed his state taxes by showing the tax refunds that he received from
the state. While he was unable to provide a tax transcript from the IRS, the Individual provided
copies of the federal tax returns he filed, as well as United States Postal Service mail receipts that
showed that he had submitted the taxes to the appropriate addresses. This evidence shows that the
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Individual filed tax returns for each year he had missed, and thus is in compliance with his tax
obligations.
Given the applicability of the mitigating factor described above, I find that the Individual has
mitigated the Guideline F security concerns. The other mitigating factors do not apply.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
DOE to raise a security concern under Guideline F of the Adjudicative Guidelines. After
considering all 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 brought forth sufficient evidence to resolve the security concerns under
Guideline F. Accordingly, I have determined that the Individual’s access authorization should be
granted. This Decision may be appealed in accordance with the procedures set forth at 10 C.F.R.
§ 710.28.
Janet R.H. Fishman
Administrative Judge
Office of Hearings and Appeals