1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) [Name Redacted] ) ISCR Case No. 16-01928 ) ) Applicant for Security Clearance ) Appearances For Government: Rhett Petcher, Esq., Department Counsel For Applicant: Pro Se ______________ Decision ______________ HOGAN, Erin C., Administrative Judge: On September 16, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline F, Financial Considerations. The action was taken under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective within the Department of Defense after September 1, 2006. On October 5, 2016, Applicant answered the SOR and requested a hearing before an administrative judge. Department Counsel was ready to proceed on October 25, 2016. The case was assigned to me on November 3, 2016. On November 9, 2016, a Notice of Hearing was issued, scheduling the hearing for December 6, 2016. The hearing was held as scheduled. During the hearing, the Government offered four exhibits which were admitted as Government Exhibits (Gov) 1 – 4. Applicant testified and offered five exhibits which were admitted as Applicant Exhibits (AE) A – E. The transcript (Tr.) was received on December 14, 2016. The record was held open until December 20, 2016, to allow Applicant to submit additional documents. Applicant timely submitted AE F, which was admitted without objection. Based upon a review of the 2 pleadings, exhibits, and testimony, eligibility for access to classified information is denied. Findings of Fact In her response to the SOR, Applicant admits all SOR allegations. Applicant is a 50-year-old employee of a DOD contractor seeking a security clearance. She has worked for her current employer since June 2015. This is her first time applying for a security clearance. She has an associate’s degree. She has been married three times. Her first marriage occurred between 1985 and 1989. Her second marriage occurred between April 1992 and January 2004. She married her current husband in June 2014. They separated in September 2014 and intend to file for divorce. She has two adult daughters. (Tr. at 24-25, 27-28; Gov 1) Applicant’s background investigation revealed that she has a history of financial problems. The SOR alleges that Applicant failed to timely file her income tax returns in state A for tax years 2007, 2010, 2011, 2012, 2013, and 2014. (SOR ¶ 1.a) The SOR also alleges that Applicant failed to timely file her income taxes in state B for tax years 2010, 2011, 2012, 2013, and 2014. (SOR ¶ 1.b) The SOR also alleges that Applicant failed to timely file her federal income tax returns for tax years 2010, 2011, 2012, and 2013. (SOR ¶ 1.c) Additional delinquent accounts include: a $7,690 credit card account that was placed for collection in September 2008 (SOR ¶ 1.d: Gov 3 at 4); a $333 medical account that was placed for collection (SOR ¶ 1.e: Gov 3 at 6; Gov 4 at 2); a $155 medical account that was placed for collection (SOR ¶ 1.f: Gov 3 at 6; Gov 4 at 2); a $117 medical account that was placed for collection (SOR ¶ 1.g: Gov 3 at 6; Gov 4 at 2) and a $41 medical account that was placed for collection (SOR ¶ 1.h: Gov 3 at 6; Gov 4 at 2). Applicant also lost a house to foreclosure in 2011. (SOR ¶ 1.i: Gov 3 at 4; Gov 4 at 1) When Applicant divorced her second husband, she gave him $50,000 from the equity in the house they owned together and refinanced the mortgage in her name. This left her with a higher mortgage payment. She attempted to sell the house in 2008, but was unable to sell it as a result of the housing market crash. She was unable to make the mortgage payments when she became unemployed in 2010. The home was eventually foreclosed in 2011. (Tr.62-64; Response to SOR) Between 2000 and 2010, Applicant worked full time at a job located in State A. Her annual income was around $80,000. The demands of the job became too stressful and Applicant quit her job. She collected unemployment between April 2010 to October 2010. In the fall 2010, Applicant moved to State B after accepting a new job. She thought that she was moving to a better job and a better location. The move did not turn out as well as Applicant anticipated. Her children did not like State B. Her fiancé (now estranged husband) moved with her to State B. He was unable to find a job and did not fit in with the local culture of State B. He moved back to state A in March 2013. (Tr. 23, 26 – 32, 37 - 39) 3 When she moved to state B, Applicant’s income was reduced and her fiancé depended on her income because he was unable to find employment. Applicant owned her house in State A. Her fiancé owned a house in State A, and they rented a house in State B. Unable to afford the payments, Applicant let her mortgage on the house located in State A go to foreclosure. Applicant also injured her hip while living in state B and incurred some medical expenses. (Tr. 32-33) In July 2013, Applicant moved back to state A. She accepted a job with an annual income of $47,000 starting in August 2013. (She was earning $57,000 annually when she left her position in state B.) In June 2015, she started her current position. Her salary is now $77,250. (Tr. 33-37) Applicant failed to file her income tax returns in State A for tax years 2007, 2010, 2013 and 2014. She was a partial year resident in both State A and State B for tax years 2010 and 2013. Applicant failed to file her income tax returns in State B for tax years 2010, 2011, 2012, and 2013. She also failed to file her federal income tax returns for tax years 2010, 2011, 2012, 2013, and 2014. (Tr 41-42, Gov 2) On September 28, 2015, Applicant was interviewed in conjunction with her background investigation. She mentioned that she did not file her income tax returns because of her unstable financial situation. She indicated that she intends to hire an accountant to resolve and consolidate her financial issues to include filing past federal and state taxes. (Gov 2 at 3) On October 3, 2016, Applicant completed her tax returns. She mailed the returns on October 5, 2016. She states that she began preparing her tax returns after receiving the SOR on September 16, 2016. She admits that she let her tax situation “get out of hand.” Applicant was unfamiliar with the laws pertaining to filing taxes. She was not aware that you could go to jail for not filing taxes. This an important lesson for her. She provided a chart of the status of her tax filings. She provided copies of her checking account record which appears to indicate that she paid the taxes owed ($85) to State A for 2007; the taxes owed to State B ($86) for 2010; the taxes owed to State A ($965) for 2010; and the federal taxes owed ($2,673) for 2010. (Tr. 61; AE A; AE D) It is unclear whether the Internal Revenue Service (IRS) also levied interests and penalties for the late filling. According to Applicant, she was owed refunds for state and federal taxes in 2011 and 2012, but she filed beyond the statute of limitations and is not entitled to a refund. (AE A) Applicant used a credit card for expenses. (SOR ¶ 1.d) She was unable to make the payments and the account was turned over for collection in the amount of $7,690. Applicant initially denied this debt. She discovered during additional research that the debt was cancelled in 2014. The company mailed an IRS Form 1099c, Cancellation of Debt, to her former address. She is attempting to obtain a copy of the 1099c and understands that she needs to amend her tax return to indicate the cancellation of debt as income. The debt is no longer listed on her credit report. (see Gov 4) After the 4 hearing, Applicant provided proof that she amended her income tax returns to reflect the 1099c. She contacted the creditor and they informed her that the 1099c reflected $2,967, the actual amount that she charged on the card and not the interest and penalties. (Tr. 53-59; AE F at 2-6) The medical accounts alleged in SOR ¶¶ 1.e – 1.h, arose when Applicant injured her hip in state B. Applicant paid these debts. The credit report, dated May 9, 2016, indicates that these are paid. (Gov 4; see AE C) Applicant provided a copy of her budget. Her monthly income totals $3,896. Her monthly expenses total $3,415. After expenses, she has approximately $481 left over each month after expenses. (AE F at 7) Applicant’s landlord wrote a letter indicating that Applicant is a good tenant who pays her rent on time. (AE B). A laboratory manager wrote a letter on Applicant’s behalf. He states his co-workers are impressed with Applicant’s professional knowledge and approachable demeanor. He notes that Applicant is an excellent teacher who shares ideas with others. She is a valuable asset to the lab. (AE F at 12) Applicant’s manager wrote a letter indicating that Applicant volunteers for additional duties. She is professional and treats others with respect and kindness. Applicant’s level of commitment to her work is extremely high, Her supervisor hopes Applicant continues to work for her. (AE F at 13) Applicant’s supervisor from a previous company states he was very fortunate to have Applicant on his team. He describes her as “having a great work ethic, is very personable, and works well with others.” (AE F at 14) Another former manager said that Applicant always excelled at her job. She was one of the most honest and dependable employees. (AE F at 15) Applicant’s two daughters provided statements on their mother’s behalf. (AE F at 16-17) Policies When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which must be considered when determining an applicant’s eligibility for access to classified information. 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. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(c), the entire process is a conscientious scrutiny of a number of variables known as the “whole-person concept.” The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision. 5 The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The applicant has the ultimate burden of persuasion as to obtaining a favorable security decision. A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information. Section 7 of EO 10865 provides that decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information). Analysis Guideline F, Financial Considerations The security concern relating to the guideline for Financial Considerations is set out in AG & 18: 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. An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds. The guideline notes several disqualifying conditions that could raise security concerns. I find AG &19(a) (an inability or unwillingness to satisfy debts); AG &19(c) (a history of not meeting financial obligations); and AG &19(g) (failure to file annual 6 Federal, state, or local income tax returns as required or the fraudulent filing of the same) apply. Applicant has had a history of financial problems, most of which occurred after she quit her job in April 2010. The biggest concern involves Applicant’s failure to pay federal and state taxes in 2007 and from 2010 to 2014. She also had a $7,690 delinquent credit card account, four minor medical collection accounts, and a mortgage foreclosure in 2011. An individual who is financially irresponsible may also be irresponsible, unconcerned, or careless in her obligations to protect classified information. Behaving irresponsibly in one aspect of life provides an indication of how a person may behave in other aspects of life. A person’s relationship with her creditors is a private matter until evidence is uncovered demonstrating an inability or unwillingness to pay debts under agreed terms. Absent evidence of strong extenuating or mitigating circumstances, an applicant with a history of serious or recurring financial difficulties is in a situation of risk inconsistent with the holding of a security clearance. An applicant is not required to be debt free, but is required to manage her finances in such a way as to meet her financial obligations. The Government’s substantial evidence and Applicant’s own admissions raise security concerns under Guideline F. The burden shifted to Applicant to produce evidence to rebut, explain, extenuate, or mitigate the security concerns. (Directive ¶E3.1.15) An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. (See ISCR Case No. 02-31154 at 5 (App. Bd. Sept. 22, 2005).) The guideline also includes examples of conditions that could mitigate security concerns arising from financial difficulties. The following mitigating conditions potentially apply: Five mitigating conditions under AG ¶ 20 are potentially applicable: (a) the behavior happened so long ago,1 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, or a death, divorce or separation), and the individual acted responsibly under the circumstances; 1A debt that became delinquent several years ago is still considered recent because “an applicant’s ongoing, unpaid debts evidence a continuing course of conduct and, therefore, can be viewed as recent for purposes of the Guideline F mitigating conditions.” ISCR Case No. 15-06532 at 3 (App. Bd. February 16, 2017) (citing ISCR Case No. 15-01690 at 2 (App. Bd. Sep. 13, 2016)). 7 (c) the person has received or is receiving counseling for the problem and/or there are clear indications that the problem is being resolved or is under control; (d) the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts;2 and (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. AG & 20(a) does not apply because Applicant’s behavior was recent. She did not begin to resolve her delinquent accounts until within the past year. She did not attempt to file her state and federal income taxes until after the SOR was issued, even though she was on notice that her failure to file her taxes would be a concern during her background investigation interview in September 2015. Applicant is given some credit for taking steps to resolve her financial and tax issues. However, questions remain about her judgment based on her failure to follow her duty to file federal and state income taxes over such a long period of time. Although Applicant believes her tax debts are resolved, it is not clear whether the IRS will also assess penalties based on Applicant’s late filing of her tax returns. A willful failure to timely make (means complete and file with the IRS) a federal income tax return is a misdemeanor-level federal criminal offense.3 For purposes of this 2The Appeal Board has previously explained what constitutes a “good faith” effort to repay overdue creditors or otherwise resolve debts: In order to qualify for application of [the “good faith” mitigating condition], an applicant must present evidence showing either a good-faith effort to repay overdue creditors or some other good-faith action aimed at resolving the applicant’s debts. The Directive does not define the term “good-faith.” However, the Board has indicated that the concept of good-faith “requires a showing that a person acts in a way that shows reasonableness, prudence, honesty, and adherence to duty or obligation.” Accordingly, an applicant must do more than merely show that he or she relied on a legally available option (such as bankruptcy) in order to claim the benefit of [the “good faith” mitigating condition]. (internal citation and footnote omitted) ISCR Case No. 02-30304 at 3 (App. Bd. Apr. 20, 2004) (quoting ISCR Case No. 99-9020 at 5-6 (App. Bd. June 4, 2001)). 3Title 26 U.S.C, § 7203, willful failure to file return, supply information, or pay tax, reads: Any person . . . required by this title or by regulations made under authority thereof to make a return, keep any records, or supply any information, who willfully fails to . . . make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor . . . . 8 decision, I am not weighing Applicant’s failure to timely file her federal income tax returns against her as a federal crime. The record establishes that Applicant failed to timely file her federal and state income tax returns for tax years 2007, and from 2010 through 2014. The DOHA Appeal Board has commented: Failure to file tax returns suggests that an applicant has a problem with complying with well-established governmental rules and systems. Voluntary compliance with such rules and systems is essential for protecting classified information. ISCR Case No. 01-05340 at 3 (App. Bd. Dec. 20, 2002). As we have noted in the past, a clearance adjudication is not directed at collecting debts. See, e.g., ISCR Case No. 07-08049 at 5 (App. Bd. Jul. 22, 2008). By the same token, neither is it directed toward inducing an applicant to file tax returns. Rather, it is a proceeding aimed at evaluating an applicant’s judgment and reliability. Id. A person who fails repeatedly to fulfill his or her legal obligations does not demonstrate the high degree of good judgment and reliability required of those granted access to classified information. See, e.g., ISCR Case No. 14-01894 at 5 (App. Bd. Aug. 18, 2015). See Cafeteria & Restaurant Workers Union Local 473 v. McElroy, 284 F.2d 173, 183 (D.C. Cir. 1960), aff’d, 367 U.S. 886 (1961). ISCR Case No. 14-04437 at 3 (App. Bd. Apr. 15, 2016). See ISCR Case No. 14-05476 at 5 (App. Bd. Mar. 25, 2016) (citing ISCR Case No. 01-05340 at 3 (App. Bd. Dec. 20, 2002)); ISCR Case No. 14-01894 at 4-5 (App. Bd. Aug. 18, 2015). The Appeal Board clarified that even in instances where an “[a]pplicant has purportedly corrected [the applicant’s] federal tax problem, and the fact that [applicant] is now motivated to prevent such problems in the future, does not preclude careful consideration of [a]pplicant’s security worthiness in light of [applicant’s] longstanding prior behavior evidencing irresponsibility” including a failure to timely file federal income tax returns. See ISCR Case No. 15-01031 at 3 and note 3 (App. Bd. June 15, 2016) (characterizing “no harm, no foul” approach to an Applicant’s course of conduct and employed an “all’s well that ends well” analysis as inadequate to support approval of access to classified information with focus on timing of filing of tax returns after receipt of the SOR). Notwithstanding the lack of any tax debt owed in ISCR Case No. 15-01031 (App. Bd. June 15, 2016), the Appeal Board provided the following principal rationale for reversing the grant of a security clearance: Failure to comply with Federal and/or state tax laws suggests that an applicant has a problem with abiding by well-established Government A willful failure to make return, keep records, or supply information when required, is a misdemeanor without regard to existence of any tax liability. Spies v. United States, 317 U.S. 492 (1943); United States v. Walker, 479 F.2d 407 (9th Cir. 1973); United States v. McCabe, 416 F.2d 957 (7th Cir. 1969); O’Brien v. United States, 51 F.2d 193 (7th Cir. 1931). 9 rules and regulations. Voluntary compliance with rules and regulations is essential for protecting classified information. . . . By failing to file his 2011, 2012, and 2013 Federal income tax returns in a timely manner, Applicant did not demonstrate the high degree of good judgment and reliability required of persons granted access to classified information. ISCR Case No. 15-01031 at 4 (App. Bd. June 15, 2016) (citations omitted). The negative information about Applicant’s judgment with regard to her tax obligations is significant. The record established that Applicant did not file her federal and state tax returns for tax years 2007 and from 2010 through 2014. She did not file her tax returns until after the SOR was issued and Applicant learned her security clearance was in jeopardy. Her explanations are insufficient to fully mitigate financial considerations security concerns. AG & 20(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, or a death, divorce or separation), and the individual acted responsibly under the circumstances) partially applies because Applicant endured a six-month period of unemployment in 2010 before finding full-time employment in state B. Her lack of employment also contributed to her home foreclosure. Applicant is also in the process of divorcing her husband. While circumstances beyond her control contributed to Applicant’s financial problems, I cannot conclude that Applicant acted responsibly in relation to her failure to file state and federal taxes over a period of five years. For this reason, this mitigating condition is given less weight. AG ¶ 20(c) (the person has received or is receiving counseling for the problem and/or there are clear indications that the problem is being resolved or is under control) does not apply because Applicant provided no proof that she attended financial counseling. Although she filed her state and federal tax returns, there is insufficient evidence to conclude that all of Applicant’s tax issues are resolved. She did not provide current documentation from the IRS or State A or State B’s tax authorities verifying the status of her tax accounts. A question remains as to whether Applicant is also subject to penalties for the late filing of her taxes. AG & 20(d) (the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts) applies with regard to the medical accounts alleged in SOR ¶¶ 1.e – 1.h. The credit card company forgave the debt alleged in SOR ¶ 1.d, Applicant did not resolve this debt, but, she amended her income tax returns to reflect the discharge of the debt as income. Applicant demonstrated a good-faith effort to resolve some of her debts. Whole-Person Concept Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s 10 conduct and all the circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a): (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence. Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I considered the favorable recommendations of Applicant’s current and former co-workers and her children. I considered that Applicant endured a period of unemployment before she sought employment in state B. I considered Applicant’s past medical issues and her pending divorce. Applicant recently filed her federal and state tax returns for tax years 2007, and 2010 through 2014. When a tax issue is involved, an administrative judge is required to consider how long an applicant waits to file his or her tax returns, whether the IRS generates the tax returns, and how long the applicant waits after a tax debt arises to begin and complete making payments.4 The primary problem here is that Applicant failed to file her state and federal tax returns over a period of five years. She did not file them until after receiving the SOR and discovering her security clearance was in jeopardy. Although Applicant proved that she filed her late federal and state income tax returns, the record is not clear as to whether this was sufficient for the IRS or whether Applicant will be assessed penalties for the late filing. 4The recent emphasis of the Appeal Board on security concerns arising from tax cases is instructive. See ISCR Case No. 14-05794 at 7 (App. Bd. July 7, 2016) (reversing grant of security clearance and stating, “His delay in taking action to resolve his tax deficiency for years and then taking action only after his security clearance was in jeopardy undercuts a determination that Applicant has rehabilitated himself and does not reflect the voluntary compliance of rules and regulations expected of someone entrusted with the nation’s secrets.”); ISCR Case No. 14-01894 at 2-6 (App. Bd. Aug. 18, 2015) (reversing grant of a security clearance and emphasizing the applicant’s failure to timely file and pay taxes); ISCR Case No. 12-05053 at 4 (App. Bd. Oct. 30, 2014) (reversing grant of a security clearance, noting not all tax returns filed). See also ISCR Case No. 14-03358 at 3, 5 (App. Bd. Oct. 9, 2015) (reversing grant of a security clearance, and stating “A security clearance represents an obligation to the Federal Government for the protection of national secrets. Accordingly failure to honor other obligations to the Government has a direct bearing on an applicant’s reliability, trustworthiness, and ability to protect classified information.”). 11 It is well settled that once a concern arises regarding an applicant’s security clearance eligibility, there is a strong presumption against the grant or renewal of a security clearance. See Dorfmont, 913 F. 2d at 1401. Unmitigated financial considerations concerns lead me to conclude that grant of a security clearance to Applicant is not warranted at this time. This decision should not be construed as a determination that Applicant cannot or will not attain the state of reform necessary for award of a security clearance in the future. With a track record of behavior consistent with her obligations, such as timely paying her bills, timely filing and paying her state and federal income taxes, Applicant may well be able to demonstrate persuasive evidence of her security clearance worthiness at some point in the future. Formal Findings Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1, Guideline F: AGAINST APPLICANT Subparagraphs 1.a -1.d: Against Applicant Subparagraph 1.e – 1.i: For Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national security to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied. _________________ ERIN C. HOGAN Administrative Judge