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ISCR Case 08-04252.a1 — CASE

ISCR Case 08-04252.a1denied

Case Headnote

ISCR Case No. 08-04252.a1

Jun 22, 2009· Hon. Jean E. Smallin· appeal

Summary

A 65-year-old systems engineer was denied a security clearance under Guideline F (Financial Considerations), specifically Disqualifying Condition AG ¶ 20(a). The denial stemmed primarily from a significant $62,000 delinquent child support debt and a failure to meet state and federal income tax obligations, as the applicant had not filed taxes for several years.

The judge determined that the applicant did not exhibit responsible financial behavior. Explanations provided for the outstanding child support debt were found to be insufficient and lacked credibility, failing to offer a reasonable basis to question the debt's validity.

Consequently, the applicant's inability to demonstrate a commitment to resolving these substantial financial issues led to the adverse decision and the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 20(a)raisedFinancial Considerations

Key Rule Quoted

“The government is not estopped from making an adverse clearance decision when there were prior favorable adjudications.”
— ISCR Case No. 07-17383 at 2 (App. Bd. Feb. 12, 2009)

Procedural Posture

SOR issuedJun 30, 2008
Answer filed—
Hearing heldApr 16, 2009
Decision dateJun 22, 2009

Cite For

Denial Based on Significant Child Support Delinquency Under Guideline F
Consideration of Unpaid Taxes in Security Clearance Decisions
The Principle That Prior Favorable Adjudications Do Not Preclude Adverse Decisions

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, specifically a delinquent child support debt and unpaid taxes. The applicant raised multiple issues on appeal, including claims of bias and lack of substantial evidence. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPhilip S. Howe — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge's findings of fact were not supported by substantial record evidence.
Judge bias or partiality — raised by the applicantRejected
Applicant claimed that the Judge was biased against him.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Judge's findings and concluded that the Judge's decision was supported by substantial evidence and was not arbitrary or capricious.

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

Jean E. Smallin
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: The Judge found against Applicant on one SOR allegation: a $62,000 child support delinquent debt for which Applicant offered multiple explanations. The Judge also found that Applicant is not current on his state and federal income taxes. Adverse decision affirmed. CASENO: 08-04252.a1 DATE: 06/22/2009 DATE: June 22, 2009 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-04252

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 June 30, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the See Tr. at 91: “Q: . . . Are you current on your state and federal taxes right now? . . . A: No. Q: You’re not? A: No . . . Q: How much do you owe [to State]: A: I don’t know, I haven’t filed them in years . . . Q: What about federal taxes? A: I’m behind in them too. I still haven’t filed in a couple [of] years.” 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 16, 2009, after the hearing, Administrative Judge Philip S. Howe 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’s findings of fact are supported by substantial record evidence; whether the Judge was biased against Applicant; and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is a 65 year-old systems engineer for a Defense contractor. He has had two prior wives. He has three children by the second of the two, and he went through “an acrimonious divorce” with her. Decision at 2. Of the nine debts listed in the SOR, the Judge found against Applicant only as to one of them, a $62,567 child/family support order by a court, arising from the above-referenced divorce from his second wife. Applicant provided several explanations for this debt: (1) that the court order misstated his income, resulting in erroneous payment calculations; (2) that the district attorney was prejudiced against him and that lawyers in the DA office falsified the court order; (3) that his second wife is the head of a crime family and put pressure on the DA to get more money from Applicant; and (4) that Applicant should not have to pay the debt because he is 65 years old. The Judge also found that Applicant is not current on his state and federal income taxes. Applicant stated that he has not paid his taxes because he does not want any refund to go to his ex-wife in satisfaction of the child support order. In the Analysis portion of the decision, the Judge concluded, inter alia, that Applicant had failed to demonstrate responsible behavior in regard to his child support debt. Neither did Applicant provide a reasonable basis to question the validity of this debt. After reviewing the record, the Board concludes that the Judge’s material findings are based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from the record. Applicant claims that the Judge erred in finding that he had not filed tax returns in recent years. However, a review of the record supports the Judge’s findings. Considering the record evidence as a whole, the Judge’s material findings of security concern are sustainable. See, e.g., ISCR Case No. 06-21025 at 2 (App. Bd. Oct. 9, 2007). Concerning Applicant’s claim that the Judge lacked the requisite impartiality, there is a rebuttable presumption that a Judge is impartial and unbiased, and a party seeking to overcome that presumption has a heavy burden of persuasion. See, e. g., ISCR Case No. 07- 02253 at 3 (App. Bd. Mar. 28, 2008); ISCR Case No. 02-08032 at 4 (App. Bd. May 14, 2004). Applicant’s argument on appeal is not sufficient to rebut that presumption. 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)). Applicant points to his having held a security clearance for around 40 years without incident or concern. However, prior decisions to grant or retain a clearance do not undermine the legal sufficiency of the Judge’s subsequent adverse decision. “The government is not estopped from making an adverse clearance decision when there were prior favorable adjudications.” ISCR Case No. 07-17383 at 2 (App. Bd. Feb. 12, 2009), quoting ISCR Case No. 03-04927 at 5 (App. Bd. Mar. 4, 2005). Additionally, although the unpaid taxes were not alleged in the SOR, the Judge properly considered them in evaluating the mitigating conditions and the whole-person factors. The Judge’s decision that “it is not clearly consistent with the interests of national security to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 9. See also Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, 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