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ISCR Case 09-00505.a1 — CASE

ISCR Case 09-00505.a1denied

Case Headnote

ISCR Case No. 09-00505.a1

Jan 26, 2010· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance applicant, representing himself, was denied under Guideline F (Financial Considerations) due to significant and unresolved financial issues. The applicant owed over $200,000 in federal income taxes, along with additional state and property tax debts.

The judge found the applicant's assertions of having payment plans to be not credible, citing a lack of supporting evidence. Furthermore, the applicant failed to demonstrate any substantive efforts to resolve these extensive and repetitive tax obligations.

Despite the application of mitigating conditions AG ¶ 20(c) and AG ¶ 20(d), the serious nature of the applicant's financial conduct and the absence of credible resolution efforts led to the denial of the security clearance, primarily under disqualifying condition AG ¶ 20(a).

Conditions Referenced

Disqualifying

AG ¶ 20(a)raisedFinancial Considerations

Mitigating

AG ¶ 20(c)rejectedFinancial ConsiderationsThe applicant failed to provide credible evidence of payment plans or efforts to resolve debts.
AG ¶ 20(d)rejectedFinancial ConsiderationsThe applicant's financial issues were extensive and serious, undermining claims of rehabilitation.

Key Rule Quoted

“There is a presumed nexus between proven conduct under any of the Guidelines and security eligibility.”

Procedural Posture

SOR issuedMay 13, 2009
Answer filed—
Hearing heldOct 23, 2009
Decision dateJan 26, 2010

Cite For

Nexus Between Financial Conduct and Security Eligibility Under Guideline F
Credibility of Applicant's Claims Regarding Financial Obligations
Seriousness of Financial Issues as a Basis for Security Clearance Denial

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 an applicant seeking a security clearance who was denied due to financial issues under Guideline F. The applicant argued that the Judge's decision was arbitrary and did not consider mitigating factors. The Board affirmed the Judge's decision, finding no harmful error in the denial.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCarol G. Ricciardello — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for the denial of the security clearance, including a rational connection between the facts and the decision made.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
William S. Fields

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: There is a presumed nexus between proven conduct under any of the Guidelines and security eligibility. Security determinations are not limited to an applicant’s work performance or on-duty conduct. Adverse decision affirmed. CASENO: 09-00505.a1 DATE: 01/26/2010 DATE: January 26, 2010 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-00505

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On May 13, 2009, DOHA 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 hearing. On October 23, 2009, after the hearing, Administrative Judge Carol G. Ricciardello denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable decision. The Judge found that Applicant owes more than $200,000 in federal income taxes, as well as $1,380 in state income taxes and more than $10,000 in property taxes. Although Applicant stated he had payment plans in place, he did not provide proof he is paying any of these debts. His testimony about payment plans is not credible. Applicant intentionally did not pay his federal, state, and property taxes for many years, up to tax year 2007. He has numerous tax liens and consumer debts that are not paid. The Judge concluded that Applicant’s conduct was extensive, serious, and repetitive, and that he has done very little to resolve his tax issues. The Judge also concluded that Applicant has not changed his behavior and his motivation was greed. The Judge concluded that Applicant had failed to mitigate the security concerns raised by his financial actions. Applicant argues that the Judge focused too much on his past and did not take into account that he took a second job in an effort to correct his financial situation. He stated that he has worked for his employer since 1987 without any incidents of a security nature. Applicant’s assertions do not establish harmful error on the part of the Judge. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. See, e.g., ISCR Case No. 06-10320 at 2 (App. Bd. Nov. 7, 2007). A party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). Applicant argues that the Judge was too focused on his “personal life.” The Directive presumes there is a nexus or rational connection between proven conduct under any of the Guidelines and an applicant’s security eligibility. See, e.g., ISCR Case No. 02-22325 at 3-4 (App. Bd. Jul. 30, 2004). Security clearance determinations are not limited to consideration of work performance or conduct during duty hours. See, e.g., ISCR Case No. 04-08623 at 5 (App. Bd. Jul. 29, 2005). The federal government need not wait until an applicant actually mishandles or fails to safeguard classified information before it can deny or revoke access to such information. See Adams v. Laird, 420 F.2d 230, 238-239 (D.C. Cir. 1969). The absence of security violations does not bar or preclude an adverse security clearance decision. See ISCR Case No. 01-03357 at 4 (App. Bd. Dec. 13, 2005). In this case, the Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. She discussed the applicability of Guideline F mitigating conditions and cogently explained why there was insufficient mitigation to overcome the government’s security concerns, stressing the facts that Applicant deliberately sought to avoid numerous tax obligations over a number of years after being told by a tax advisor that he must pay his taxes, used retirement money to take his family on resort cruises, and failed to provide credible evidence that he has made payments on his tax delinquencies or other debts listed in the SOR. The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). Therefore, the Judge’s ultimate unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett

Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board