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ISCR Case 11-01027.a1 — CASE

ISCR Case 11-01027.a1denied

Case Headnote

ISCR Case No. 11-01027.a1

Jul 9, 2012· Hon. Michael Y. Ra'anan· appeal

Summary

An engineer employed by a defense contractor was denied a security clearance under Guideline F, Financial Considerations. The denial stemmed from the applicant's significant delinquent debts, notably a tax debt totaling $19,498.19.

The judge determined that the applicant failed to establish a consistent history of tax payments. Furthermore, the applicant's explanations regarding financial oversight were deemed insufficient to alleviate the security concerns raised by the outstanding financial obligations.

Ultimately, the applicant did not adequately mitigate the issues presented by the numerous delinquent debts, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Key Rule Quoted

“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)

Procedural Posture

SOR issuedNov 7, 2011
Answer filed—
Hearing heldApr 17, 2012
Decision dateJul 9, 2012

Cite For

Denial of Security Clearance Due to Significant Delinquent Debts Under Guideline F
Failure to Demonstrate a Consistent Track Record of Tax Payments as a Basis for Denial
Insufficient Mitigation of Financial Concerns Leading to Adverse Decision

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 considerations under Guideline F. The applicant argued that the Judge erred in her whole-person analysis and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it supported by substantial evidence and rationally connected to the facts.

Appealed bythe applicant

Applicant representationAttorney

Judge belowElizabeth M. Matchinski — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Whole-person analysis — raised by the applicantRejected
The Judge erred in her whole-person analysis.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge's adverse security clearance 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 decision, maintaining a rational connection between the facts found and the choice made.

Standard of review applied

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

Appeal Board panel

Michael Y. Ra’anan — Chair
William S. Fields
James E. Moody

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: Hearing Office decisions are not binding on other Hearing Office Judges or on the Appeal Board. A Judge is presumed to have considered all of the record evidence. Adverse decision affirmed. CASE NO: 11-01027.a1 DATE: 07/09/2012 DATE: July 9, 2012 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-01027

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Paula W. Phinney, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On November 7, 2011, 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 April 17, 2012, after the hearing, Administrative Judge Elizabeth M. Matchinski 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 her whole-person analysis and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm the Judge’s decision. The Judge made the following pertinent findings of fact: Applicant is an engineer for a Defense contractor. She holds a college degree. Applicant divorced her husband in the early 1990s. Her daughter was seriously injured in an automobile accident in the mid-2000s. Applicant focused on her daughter’s needs and failed to attend to her financial obligations. Later, she undertook to assist her daughter with her college expenses. In 2006 and 2007, she began to focus upon her parents’ medical problems, again neglecting her financial situation. Applicant has numerous delinquent debts, including one for Federal income taxes. The amount alleged in the SOR was $19,498.19, for tax years 2006 to 2009. In May 2009, the IRS issued a notice of intent to levy for nonpayment of taxes, which was returned to the IRS as refused or unclaimed. Applicant has entered into a repayment plan. She did not specifically intend to avoid paying her taxes, attributing her delinquencies to oversight and disorganization.1 Some of the other debts in the SOR were withdrawn before the close of the record, and the Judge found in Applicant’s favor for several others, noting circumstances beyond Applicant’s control which affected her financial condition. However, the Judge concluded that Applicant had not mitigated the security concern arising from her delinquent taxes. The Judge stated that Applicant had been placed on notice as early as 2009 that her tax debt was delinquent but that she did not make any payments until a year later. Moreover, the Judge concluded that Applicant had not corroborated some of her claimed payments to the IRS. The Judge noted Applicant’s installment agreement, but she stated that Applicant had set up such agreements previously, which had been cancelled for reasons not set forth in the record. The Judge concluded that the evidence points only to Applicant as the cause of her delay in paying her Federal taxes. She stated that Applicant had not demonstrated a track record of tax payment. In the whole-person analysis, the Judge cited to evidence of Applicant’s work record, her technical expertise, and her history of security compliance. However, she stated that Applicant’s handling of her tax responsibilities was not commensurate with her education or responsibilities and did not show an understanding of the importance of timely compliance with income tax obligations. The Judge stated that Applicant’s failure to have ensured that sufficient amounts were withheld from her income to satisfy her tax liabilities suggested “a lack of urgency in resolving her debts.” Decision at 12. Applicant cites to Hearing Office Decisions which reached favorable outcomes. These decision are distinguishable on their facts. Each case must be decided on its own merits. Directive, Enclosure 2 ¶ 2(b). Furthermore, Hearing Office decisions are not binding on the Appeal Board or other Hearing Office Judges. See ISCR Case No. 09-08505 at 2 (App. Bd. Jun. 14, 2012). Applicant asserts that the Judge failed to consider all of the record evidence. In doing so, he discusses the letters of recommendation entered into the record. There is a rebuttable presumption that a Judge has considered all of the evidence in the record. See, e.g., ISCR Case No. 10-04808 at 3 (App. Bd. Jun. 15, 2012). Moreover, in the case under consideration here, the Judge made findings of fact based on the letters of recommendation and discussed these findings in her whole-person analysis. Applicant has not rebutted the presumption that the Judge considered all of the record evidence. The record supports a conclusion 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 Judge’s adverse decision is sustainable on this record. “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). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”

ORDER

The Judge’s adverse security clearance decision is AFFIRMED.

Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board

FOOTNOTES

1 In a footnote to her Findings of Fact, the Judge cited to statements by Applicant as to the timing of her filing of tax returns that were not consistent with other evidence. The Judge characterized Applicant’s statements in this regard as “error.”