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ISCR Case 14-02936.a1 — CASE

ISCR Case 14-02936.a1denied

Case Headnote

ISCR Case No. 14-02936.a1

Apr 15, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance primarily due to unresolved tax debts exceeding $24,000, stemming mainly from 2011 and 2012. This issue fell under Guideline F (Financial Considerations), specifically Disqualifying Condition AG ¶ 19. The judge determined that the applicant did not provide sufficient evidence of a payment plan or the ability to resolve these debts.

While Mitigating Condition AG ¶ 20 was considered, it was not applied. The applicant's subsequent appeal introduced new evidence that had not been presented to the board during the initial review. Consequently, this new evidence could not be considered in the appeal.

The denial was upheld, with the decision emphasizing the paramount importance of national security interests.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20rejectedFinancial ConsiderationsThe applicant did not provide sufficient evidence of a payment plan or ability to pay.

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 issuedFeb 10, 2015
Answer filed—
Hearing heldJun 18, 2015
Decision dateApr 15, 2016

Cite For

Unresolved Tax Debts as a Basis for Security Clearance Denial Under Guideline F
Limitations on Introducing New Evidence During Appeal
The Standard for Granting Security Clearances in Relation to National Security Interests

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's findings were not supported by substantial evidence, but the Board affirmed the decision, stating that the Judge's conclusions were sustainable on the record.

Appealed bythe applicant

Applicant representationAttorney

Judge belowWilford H. Ross — 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 were not supported by substantial evidence.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the Applicant did not demonstrate any harmful error in the Judge's decision.

Standard of review applied

Substantial-evidence reviewNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael 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: Applicant’s argument relies on new evidence which the Board cannot consider. Adverse decision affirmed. CASENO: 14-02936.a1 DATE: 04/15/2016 DATE: April 15, 2016 In Re: -------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-02936

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Anthony J. Kuhn, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On February 10, 2015, 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 hearing. On February 4, 2016, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Wilford H. Ross denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s findings of fact were supported by substantial record evidence. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant has had tax problems, from 2008 to 2013, due to his not having sufficient withholding from his income. Applicant testified that he had no problems in 2009, although the Judge found that statement to be incorrect. See Decision at 3, note 2. As of the end of 2014, Applicant’s tax debt totaled over $24,000. Applicant submitted three documents that purported to show that he had a payment plan with the IRS. However, the documents were not complete and left out material information. The SOR alleged debts to the IRS for tax years 2011 and 2012. The Judge stated that he was considering debts from the other years for their bearing upon mitigation and upon a whole-person analysis. Id. at 2, note 1. The Judge found that Applicant had submitted no information concerning how much he owed or concerning his ability to pay. The Judge stated that Applicant had been given three opportunities to provide such evidence, the most recent having been from January 4, 2016 until January 22, 2016.1 The Judge’s Analysis The Judge stated that Applicant has had tax problems since 2008, his delinquencies for 2011 and 2012 totaling over $12,000. He stated that none of the documents that Applicant submitted address these tax years at all, and Applicant submitted no evidence showing that he had been making regular payments to the IRS. The Judge concluded that Applicant had not met his burden of producing evidence in mitigation.

DISCUSSION

Applicant contends that the Judge’s findings were not based upon “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” See Directive ¶ E3.1.32.1. In making his argument, Applicant cites to documents that are not included in the record. We cannot consider new evidence on appeal. Directive ¶ E3.1.29. We have examined the Judge’s findings in light of the entirety of the record evidence and conclude that they are supported by substantial record evidence. See, e.g., ISCR Case No. 14-04226 at 3 (App. Bd. Aug. 18, 2015). Applicant has not cited to any harmful error in the Judge’s decision. Although styled as a challenge to the Judge’s findings, much of Applicant’s argument consists of a disagreement with the Judge’s weighing of the evidence. An ability to argue for an alternative interpretation of the record is not sufficient to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 14-06440 at 4 (App. Bd. Jan. 8, 2016). The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The 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 Decision is AFFIRMED. Signed: Michael Ra’anan Michael 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 The hearing took place on June 18, 2015, and the record closed on January 22, 2016. Applicant’s argument on appeal that he was unable quickly to obtain the evidence in question is unpersuasive, given the eleven months that elapsed between the issuance of the SOR and the ultimate close of the record.