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ISCR Case 14-06521.a1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date5/4/2017
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 14-06521.h1) →
Participants
Judge: Michael Y. Ra'anan, James E. Moody, William S. Fields
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline BForeign Influence · For Applicant
- Guideline CForeign Preference · Against Applicant
- Guideline EPersonal Conduct · For Applicant
- Guideline FFinancial Considerations · Against Applicant

Similar decisions
Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
Finding similar decisions…

ISCR Case 14-06521.a1denied

Case Headnote

ISCR Case No. 14-06521.a1

May 4, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

The applicant, an Israeli citizen by birth, was denied a security clearance due to concerns under Guideline F (Financial Considerations), Guideline C (Foreign Preference), Guideline B (Foreign Influence), and Guideline E (Personal Conduct). The primary reason for denial stemmed from significant tax delinquencies, totaling over $87,000 in unpaid taxes and unfiled returns between 2001 and 2009. Liens were filed against the applicant, and the resolution of these debts was reactive rather than proactive.

While mitigating conditions were applied under Guidelines B and E, and the judge made favorable findings regarding foreign influence and personal conduct, the financial issues remained disqualifying. Specifically, the applicant's failure to responsibly address his tax obligations, coupled with the fact that resolution was prompted by liens, was a key factor.

Additionally, the applicant maintained an Israeli passport and had not taken steps to renounce his Israeli citizenship, which raised concerns under Guideline F. The appeal board affirmed the denial, concluding that the applicant's arguments did not sufficiently overturn the initial decision.

Conditions Referenced

Disqualifying

F1raisedFinancial ConsiderationsThe applicant's tax delinquencies and failure to address them responsibly raised security concerns.
C1raisedForeign PreferenceThe applicant's Israeli citizenship and use of an Israeli passport for travel raised concerns.

Mitigating

F3rejectedFinancial ConsiderationsThe applicant's resolution of tax issues was not viewed as sufficient evidence of responsible financial behavior.
B2appliedForeign InfluenceThe judge found favorable evidence under Guideline B, resolving some concerns in the applicant's favor.
E2appliedPersonal ConductThe judge found favorable evidence under Guideline E, resolving some concerns in the applicant's favor.

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 issuedJan 26, 2015
Answer filed—
Hearing heldJan 26, 2017
Decision dateMay 4, 2017

Cite For

Denial Based on Tax Delinquencies Under Guideline F
Favorable Findings Under Guidelines B and E Not Contested
Impact of Liens on Applicant's Financial Responsibility

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 security concerns under multiple guidelines. The applicant argued that the Judge erred in admitting certain documents and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error and that the Judge's analysis was supported by substantial evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowShari Dam — denied the clearance

Decided onthe written record

Guidelines belowGuideline BGuideline CGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge erred by not addressing his objections to certain administrative notice documents submitted by Department Counsel.

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 no harmful error in the Judge's decision and affirmed the denial of the security clearance, noting that the Judge's findings were supported by substantial evidence and that any alleged errors did not affect the outcome.

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 Ra’anan — Chair
James E. Moody
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 B; Guideline C; Guideline F; Guideline E DIGEST: Applicant contends that the Judge erred by not addressing his objections to certain administrative notice documents submitted by Department Counsel. However, the documents in question were submitted for the Judge’s consideration of the security concerns raised under Guideline B, which the Judge resolved in Applicant’s favor. Adverse decision affirmed. CASENO: 14-06521.a1 DATE: 05/04/2017 DATE: May 4, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-06521

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Jeffrey D. Billett, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On January 26, 2015, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence), Guideline C (Foreign Preference), Guideline F (Financial Considerations), and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On January 26, 2017, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Shari Dam 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 admitting certain Administrative Notice documents and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guidelines B and E are not at issue in this appeal.1 Consistent with the following, we affirm. The Judge’s Findings of Fact The Judge made the following findings pertinent to the issues raised on appeal: Applicant is an Israeli citizen by birth and holds a current Israeli passport that he uses for travel to Israel. He travels to that country once or twice a year to visit family and friends. His facility security officer (FSO) maintains the passport until Applicant retrieves it for travel. Applicant is willing to renounce his Israeli citizenship but has not done so because of the inconvenience and expense involved in traveling to an Israeli embassy or consulate. Applicant did not file timely returns or pay taxes owed to the IRS and to his state from 2001 until 2009. His unpaid taxes totaled over $87,000. The IRS and his state filed liens against him. He resolved his tax delinquencies in 2012. Although it was not alleged in the SOR, Applicant was also the subject of Federal tax liens for 1999 and 2000. These tax debts have been paid. Applicant has properly filed his tax returns since 2010. He sought treatment for a gambling addiction in 2005 and no longer has a problem. The Judge’s Analysis The Judge cited to evidence that Applicant has maintained an Israeli passport since becoming a U.S. citizen and has used it regularly for travel to Israel. She noted his willingness to renounce his Israeli citizenship but stated that he had taken no steps to accomplish that. Regarding Guideline F, the Judge noted that Applicant had marital issues that may have affected his tax problem. However, she found no evidence that Applicant had acted responsibly in regard to his tax delinquencies. She also noted that Applicant’s impetus to resolve his Federal and state tax delinquencies were the liens that had been filed against him rather than his own good-faith effort to address his problems.

DISCUSSION

Applicant contends that the Judge erred by not addressing his objections to certain administrative notice documents submitted by Department Counsel. He contends that these documents were inadmissible because they were not relevant. However, the documents in question were submitted for the Judge’s consideration of the security concerns raised under Guideline B, which the Judge resolved in Applicant’s favor. See Hearing Exhibits 1, Request for Administrative Notice, and 1(a), a brief by Department Counsel in support of her request, both of which state that the documents are part of the Government’s case under Guideline B. The Judge’s analysis under

FOOTNOTES

1 While the case was pending appeal Department Counsel withdrew the sole allegation under Guideline C. Department Counsel’s action rendered moot a motion by Applicant. that Guideline discussed the facts that she had administratively noticed, while her analysis under Guideline C made no reference to them. There is no basis in the record or in the Decision to conclude that the challenged documents exerted a meaningful effect on the Judge’s evaluation of the Guideline C concerns. Therefore, even if the Judge erred by administratively noticing one or more of these documents, it was harmless in that it did not affect the outcome of the case. See, e.g., ISCR Case No. 15-00535 at 3 (App. Bd. Mar. 13, 2017). Furthermore, Department Counsel withdrew the allegation under Guideline C after the Judge issued the decision The balance of Applicant’s appeal argument constitutes a disagreement with the Judge’s weighing of the evidence. However, his argument is not enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Neither has Applicant rebutted the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 13-00502 at 3 (App. Bd. Mar. 7, 2017). The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision, both as to the mitigating conditions and the whole-person factors. 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board