CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 20-03119.a1 — CASE

ISCR Case 20-03119.a1denied

Case Headnote

ISCR Case No. 20-03119.a1

Sep 22, 2021· Hon. Michael Y. Ra'anan· appeal

Summary

A government contractor in his fifties was denied a security clearance under Guideline F (Financial Considerations) due to his failure to file federal income tax returns from 2012 to 2018. This raised significant financial security concerns, specifically Disqualifying Condition F1.

The applicant claimed to be working with a tax resolution company to address the outstanding tax issues. However, he provided insufficient documentation to substantiate these claims, failing to demonstrate a clear path toward resolving the debt.

Ultimately, the appeal board upheld the denial, concluding that the applicant did not adequately mitigate the financial security concerns. The board also determined that a judge's error regarding documentation was harmless and did not impact the final decision to deny the clearance.

Conditions Referenced

Disqualifying

F1raisedFailure to File Annual Income Tax Returns

Key Rule Quoted

“It is reasonable for a Judge to expect an applicant to present documentation corroborating his or her actions taken to resolve alleged financial problems.”
— ISCR Case No. 19-01599 at 3 (App. Bd. Jan. 15, 2020)

Procedural Posture

SOR issuedDec 7, 2020
Answer filed—Applicant represented himself (pro se) in the proceedings.
Hearing heldJul 21, 2021Decision made on the written record.
Decision dateSep 22, 2021Appeal decision affirmed.

Cite For

Insufficient Documentation to Mitigate Financial Concerns Under Guideline F
Harmless Error in Findings of Fact Not Affecting the Outcome
Expectation of Corroborating Evidence for Financial Claims

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance· Full written decision

Affirmed

The appeal involved a denial of a security clearance based on financial considerations under Guideline F. The applicant argued that the Judge erred in finding no documentation of efforts to resolve tax delinquencies and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding the errors were harmless and the overall conclusion sustainable.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMarc E. Curry — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge erred in finding he provided no documentation of his efforts to resolve his tax delinquencies.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge's error regarding documentation was harmless and did not affect the outcome. The Judge's overall conclusion regarding the applicant's failure to mitigate security concerns was sustainable based on the evidence presented.

Standard of review applied

No de-novo re-decisionNo new evidence on appealSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural compliance

Appeal Board panel

Michael Ra’anan — Chair
James E. Moody
James F. Duffy

Descriptive structured reading of this decided, public Appeal Board decision — what the case says, not a prediction or advice.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

SYNOPSIS

KEYWORD: Guideline F DIGEST: On appeal, Applicant takes issue with the Judge’s finding that he provided no documentation of his efforts to resolve his tax delinquencies. In this regard, we first note that Applicant’s SOR response provided the name and telephone number of the tax relief company as well as his case number with that company. To the extent that he may have believed the Judge would contact the tax relief company to verify his claim that the delinquent tax returns were filed, he was mistaken. A Judge is an impartial fact-finder and has no authority to serve as an investigator, such as contacting potential witnesses independently to interview them, which would be inconsistent with his or her duty of impartiality. We also note that Applicant’s SOR Response contains IRS documents, including notices that his claims for refunds for tax years 2014 and 2015 were disallowed in 2020. These documents are some evidence that his Federal income tax returns for those years were filed. Consequently, the Judge’s finding that Applicant presented “no documentation” of his efforts to resolve his tax filing delinquencies is inaccurate. Decision at 2. This error, however, was harmless because it did not likely affect the outcome of the case. Adverse Decision Affirmed. CASE NO: 20-03119.a1 DATE: 09/22/2021 DATE: September 22, 2021 ) In Re: ) ) ----------------------- ) ISCR Case No. 20-03119

) ) Applicant for Security Clearance ) )

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT

James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On December 7, 2020, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On July 21, 2021, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Marc E. Curry denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge erred in his findings of fact and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact and Analysis Applicant is in his fifties and is married with children. He has a bachelor’s degree and has been working for a government contractor since 2019. He failed to file his Federal income tax returns for 2012-2018 as required. He attributed this failure to going through unspecified financial difficulties. He estimated that he owes between $25,000 and $70,000 in delinquent taxes and indicated he was working with a tax resolution company to resolve his tax delinquencies, but provided no documentation. None of the mitigating conditions apply.

DISCUSSION

Applicant’s appeal brief contains documents that were not presented to the Judge for consideration. The Appeal Board cannot consider new evidence on appeal. Directive ¶ E3.1.29. On appeal, Applicant takes issue with the Judge’s finding that he provided no documentation of his efforts to resolve his tax delinquencies. In this regard, we first note that Applicant’s SOR response provided the name and telephone number of the tax relief company as well as his case number with that company. To the extent that he may have believed the Judge would contact the tax relief company to verify his claim that the delinquent tax returns were filed, he was mistaken. A Judge is an impartial fact-finder and has no authorityto serve as an investigator, such as contacting potential witnesses independently to interview them, which would be inconsistent with his or her duty of impartiality. See, e.g., ISCR Case No. 16-03709 at 2 (App. Bd. Jul. 2, 2018). We also note that Applicant’s SOR Response contains IRS documents, including notices that his claims for refunds for tax years 2014 and 2015 were disallowed in 2020. These documents are some evidence that his Federal income tax returns for those years were filed. Consequently, the Judge’s finding that Applicant presented “no documentation” of his efforts to resolve his tax filing delinquencies is

inaccurate. Decision at 2. This error, however, was harmless because it did not likely affect the outcome of the case. See, e.g., ISCR Case No. 18-02239 at 3 (App. Bd. Jul. 20, 2020). As the Appeal Board has previously noted, it is reasonable for a Judge to expect an applicant to present documentation corroborating his or her actions taken to resolve alleged financial problems. See, e.g., ISCR Case No. 19-01599 at 3 (App. Bd. Jan. 15, 2020). In this case, the Judge’s overall conclusion that Applicant failed to present sufficient evidence to mitigate the security concerns arising from his tax filing deficiencies is sustainable. Applicant also argues that he has taken steps to rectify his tax problems in a timely manner by working with the tax resolution company. This argument is not sufficient to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Directive ¶ E3.1.32.3. Applicant has failed to establish the Judge committed harmful error. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on this record.

ORDER

The Decision is AFFIRMED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board