PSH-25-0008

*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: October 11, 2024 ) Case No.: PSH-25-0008
)
_________________________________________ )
Issued: February 10, 2025
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Administrative Judge Decision
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Diane L. Miles, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXXX (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 granted.
I. BACKGROUND
The Individual is employed by a DOE contractor in a position that requires her to hold a security
clearance. In May 2023, as part of the security clearance application process, the Individual
completed a Questionnaire for National Security Positions (QNSP). Exhibit (Ex.) 6. In the section
titled “Financial Record,” the Individual answered “yes” when asked whether, in the last seven
years, she failed to pay federal, state, or other taxes. Id. at 67.2 The Individual reported that “due
to unforeseen circumstances,” she had not filed or paid her state or federal income taxes since
2013. Id. Subsequently, the Local Security Office (LSO) issued a Letter of Interrogatory (LOI) to
the Individual, which the Individual completed on June 6, 2024. Ex. 5. In the LOI, the Individual
reported that she had not filed her state or federal income taxes for tax years 2013 through 2023,
and she did not know the amount of state or federal taxes she owed. Id. at 23–24.
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.”
2 The DOE’s exhibits were combined and submitted in a single, 161-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 DOE’s exhibits by reference to the exhibit and page number within the combined workbook regardless of
any internal pagination.
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Due to the security concerns stemming from the Individual’s disclosures, the LSO informed the
Individual, in a Notification Letter, that it possessed reliable information that created substantial
doubt regarding her eligibility to hold a security clearance. Ex. 1 at 5. In a Summary of Security
Concerns (SSC) attachment to the letter, the LSO explained that the derogatory information raised
security concerns under Guideline F of the Adjudicative Guidelines. Id.
In September 2024, the Individual exercised her 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 review hearing. The LSO submitted seven numbered exhibits (Exs. 1–7) into the
record and did not call any witnesses at the hearing. The Individual submitted one lettered exhibit
(Ex. A) into the record and testified on her own behalf. See Transcript of Hearing, Case No. PSH-
25-0008 (hereinafter cited as “Tr.”).
II. 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 substantial doubt concerning her eligibility for a security clearance.
The LSO cited Guideline F (Financial Considerations) of the Adjudicative Guidelines as the basis
for suspending the Individual’s security clearance. Ex. 1. Guideline F states that a “[f]ailure or
inability to live within one’s means, satisfy debts, and meet financial obligations may indicate poor
self-control, lack of judgment, or [an] 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.” Adjudicative Guidelines at ¶ 18. Among the conditions set forth under
Guideline F that could raise a disqualifying security concern is the failure to file or pay annual
federal, state or local income taxes as required. Id. at ¶ 19(f).
In citing Guideline F, the LSO relied upon the Individual’s admissions, in her May 2023 QNSP
and June 2024 LOI, that she had not filed her state or federal personal income tax returns for tax
years 2013 through 2023. Ex. 1 at 5. The cited information justifies the LSO’s invocation of
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 entire process
is a conscientious scrutiny of a number of variables known as the “whole person concept.”
Adjudicative Guidelines ¶ 2(a). The protection of the national security is the paramount
consideration. 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
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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 her 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). 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
In her June 2024 LOI, the Individual reported that, as to her federal income tax returns for tax
years 2013 through 2023, she had “no real valid reason” for not filing, and she was working on
getting them filed. Ex. 5 at 23. She did not know whether she owed any federal taxes because she
had not filed, but reported that if she did owe federal taxes, she would make all necessary
payments. Id. As to her state income tax returns, the Individual reported that she did not file her
state income tax returns for tax years 2013 through 2023 and does not know how much she owes,
but in February 2023, she received notices from her state tax authority indicating she owed state
taxes for tax years 2014 through 2019. Id. She reported that on March 30, 2023, she paid the
amount of taxes that was shown on each notice, via cashier’s checks, for tax years 2014 through
2019. Id. at 23, 31–36. The Individual did not indicate why she did not file her state income tax
returns. Id. at 23–24.
At the hearing, the Individual testified that “there [was] really no excuse” for her failure to file her
state and federal income tax returns for tax years 2013 through 2023. Tr. at 16. She explained that
over the past ten years, a series of family events contributed to her failure to file: the foreclosure
of her home in 2013; the deaths of several family members between 2015 and 2021; and having to
care for sick parents. Id. at 16–18, 29. She maintained that despite these circumstances, she was
“not trying to make excuses” for her failure to file her tax returns; she kept telling herself that she
would “get to it next year,” and she never did. Id. at 17–18, 29.
Regarding her state income tax returns, the Individual testified that the six notices she received
from her state tax authority showed amounts due for tax years 2014 through 2019. Tr. at 21–22.
She did not remember if the notices provided a breakdown of how the amounts shown as due were
calculated, and she did not remember if the notices mentioned a requirement to file her state
income tax returns. Id. at 31. She recalled speaking to a customer service representative at the state
tax authority, who told her the money she mailed to the state may need to be adjusted once she
files her state income tax returns. Id. at 23. She stated she still needs to file her delinquent state
income tax returns, and she is not sure if the payments she mailed in March 2023 will resolve her
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state tax obligations. Id. at 23–24. She stated it is also possible she owes more taxes than the
amounts shown on the notices. Id. at 31–32.
As of October 2024, the Individual was working with an accountant to file all her state and federal
income tax returns. Tr. at 15, 23. The Individual stated the accountant will file the 2023 state and
federal income tax returns first, then work on filing the state and federal tax returns for 2024, and
then work backwards and file her state and federal income tax returns for years 2013 through 2022.
Id. at 11–12, 26; Ex. A (Letter from the Individual’s accountant indicating the Individual’s 2023
income tax returns are being prepared). She stated that once the accountant completes the filings
for 2023, she will provide the accountant with the documentation necessary to file the income tax
returns for the remaining years. Id. at 26–27.
As of the hearing, the Individual had not filed her federal or state income tax returns for tax years
2013 through 2023. Tr. at 11. She explained that she is married, and she and her husband always
file their state and federal tax returns jointly, which requires that she and her husband submit
documents to an accountant at the same time. Id. at 13, 30. She was still waiting for her husband
to provide additional documentation, related to his business, to their accountant. Id. at 13–14. As
of the date of the hearing, she submitted all the documentation necessary to file her 2023 taxes to
the accountant, and she believes her husband must provide more documentation to the accountant
before they can file the federal and state income tax returns. Id. at 25–26. When asked if she ever
considered filing her state and federal income tax returns individually, she replied that she never
thought that was something she could do because she had always filed jointly with her husband
since she got married. Id. at 30. She was unable to estimate when her state and federal income tax
returns for 2013 through 2023 would be filed. Id. at 15. She stated that her failure to file her state
and federal income tax returns for the past ten years has been a dark cloud that has followed her.
Id. at 33. She intends to never let herself get into this position again. Id. at 33–34. She stated that,
in the future, she will always make sure that her and her husband’s tax documentation are in order,
and that she and her husband are considering hiring a part-time accountant to assist with her
husband’s business, so they can timely file in the future. Id. at 34.
V. ANALYSIS
I have thoroughly considered the record of this proceeding, including the submissions tendered in
this case and the testimony of the witness 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 that the Individual has not sufficiently mitigated the security concerns raised by her
failure to file her state and federal income tax returns for tax years 2013 to 2023. I cannot find that
granting the Individual a DOE security clearance will not endanger the common defense and
security and is 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 granted. The specific findings
that I make in support of this Decision are discussed below.
The Adjudicative Guidelines provide that conditions that could mitigate a security concern under
Guideline F include:
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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 judgment;
(b) the conditions that resulted in the financial problem were largely beyond the
person’s control . . . 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 . . . ; 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;
(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.
As to factor ¶ 20(a), the Individual’s failure to file her state and federal income tax returns occurred
as recently as 2023, two years before the hearing, and as of the date of the hearing, the Individual
still had not filed the returns for tax years 2013 through 2023. So, the Individual’s behavior cannot
be said to have occurred so long ago that it no longer poses a security concern. Also, the Individual
failed to file her state and federal income tax returns for ten consecutive years, so the Individual’s
behavior was frequent. Finally, although the Individual testified that several events within her
family contributed to her failure to file her state and federal income tax returns, she admitted she
had no excuse for her failure to file. Besides her stated commitment to being more diligent with
compiling her tax documentation in the future, there is insufficient evidence upon which I can
conclude that the Individual’s failure to file her state and federal income tax returns is unlikely to
recur. Accordingly, the Individual has not mitigated the security concerns related to her failure to
file her state and federal tax returns under factor ¶ 20(a) of the Adjudicative Guidelines.
As to factor ¶ 20(b), although the Individual testified to experiencing several family events that
were outside of her control, including the foreclosure of her home and deaths within her family,
she did not provide any evidence of how these events rendered her unable to file her state and
federal income tax returns for tax years 2013 to 2023. The Individual admitted there was no excuse
for her failure to file her income tax returns for ten years. Therefore, I find the Individual has not
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mitigated the security concerns related to her failure to file her state and federal income tax returns
under factor ¶ 20(b) of the Adjudicative Guidelines.
As to factor ¶ 20(c), the Individual did not present evidence to support that her failure to file her
state and federal income tax returns from 2013 to 2023 was due to circumstances from which she
would have benefitted from financial counseling. Therefore, I find that mitigating factor ¶ 20(c)
of the Adjudicative Guidelines is not applicable to this case.
As to factor ¶ 20(d), the Individual admitted that she did not file her state or federal income tax
returns for tax years 2013 to 2023. It is not known whether she has any tax liability for those years.
Although the Individual sent checks to her state tax authority in response to notices she received
related to tax years 2014 through 2019, it is not known whether those payments will resolve her
tax liability for those years because she still has not filed her income tax returns for those years.
Therefore, I cannot conclude the Individual is making a good-faith effort to resolve any debts she
may have from her failure to file her state and federal income tax returns under factor ¶ 20(d) of
the Adjudicative Guidelines.
As to factor ¶ 20(e), although the LSO did not allege the Individual has past-due debts related to
her failure to file her state and federal income tax returns for years 2013 through 2023, the
Individual did not dispute that she failed to file her income tax returns for the years in question.
The LSO did not allege the Individual had any other past due debts that need to be resolved.
Therefore, I find that mitigating factor ¶ 20(e) of the Adjudicative Guidelines is not applicable to
this case.
As to factor ¶ 20(f), the security concerns raised by the LSO do not involve unexplained affluence.
Therefore, I find that mitigating factor ¶ 20(f) of the Adjudicative Guidelines is not applicable to
this case.
As to factor ¶ 20(g), I cannot conclude that the Individual has made arrangements with the
appropriate tax authorities to file her state and federal income tax returns. Regarding the federal
income tax returns, as of the date of the hearing, the Individual had not filed her federal income
tax returns for years 2013 through 2023. The Individual submitted evidence that in October 2024,
she contacted an accountant to prepare her 2023 federal income tax return, but she could not
estimate when the 2023 federal income tax return, or tax returns for 2013 through 2022, would be
filed. Regarding the state income tax returns, as of the hearing, the Individual had not filed her
state income tax returns for years 2013 through 2023. The Individual submitted evidence she sent
payments to her state tax authority for years 2014 through 2019, but she admitted that since she
has not filed her state income tax returns for years 2013 through 2023, more action may be needed
to resolve any state taxes she may owe. Therefore, I find that the Individual has not mitigated the
security concerns related to her failure to file her state and federal income tax returns under factor
¶ 20(g) of the Adjudicative Guidelines.
For the reasons cited above, I find that the Individual has not mitigated the Guideline F security
concerns raised by her failure to file her state and federal income tax returns for years 2013 through
2023.
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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 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 granted.
This Decision may be appealed in accordance with the procedures set forth at 10 C.F.R. § 710.28.
Diane L. Miles
Administrative Judge
Office of Hearings and Appeals