KEYWORD: Guideline F
DIGEST: Applicant contends he was denied due process, since the Judge dfid not give him more
information about his right to counsel, and did not indicate that he had a right to object to or
rebut Government exhibits.  The Judge adequately explained to Applicant his rights and
responsibilities at the hearing.  Applicant’s allegation of bias against the Judge is not established
on this record.  Adverse decision affirmed.
CASENO: 12-10122.a1
DATE: 04/22/2016
DATE: April 22, 2016
In Re:
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Applicant for Security Clearance
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ISCR Case No. 12-10122
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Patrick McLain, Esq.
The Department of Defense (DoD) declined to grant Applicant a security clearance.  On June
5, 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 January 12, 2016, after the hearing, Defense Office of Hearings and Appeals (DOHA)
Administrative Judge Edward W. Loughran 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 Applicant was denied due process;
whether the Judge was biased against Applicant; whether the Government failed to meet its burden
of production; and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to
law.  Consistent withe the following, we affirm.  
The Judge’s Findings of Fact
Applicant did not file Federal or state income tax returns for tax year 2009.  He did not file
Federal income tax returns for tax years 2010 through 2013.  When interviewed by a clearance
investigator, Applicant stated that this failure was because he “[j]ust got too busy and kept putting
it off.”  Decision at 2.  He stated to the interviewer that he would file his returns within the next two
weeks.  Applicant filed his 2009 state income tax return and his 2009 through 2014 Federal returns
in mid-2015, after he had received the SOR. 
Other than his tax problems, Applicant’s finances are in good shape.  He has no delinquent
debts and has about $600,000 in savings, investments, and retirement accounts.  He stated that he
did not file his returns due to “stupidity” as well as to his being disorganized.  Id. at 3.  After
completing his returns, he discovered that they were not difficult.  
The Judge’s Analysis
The Judge concluded that Applicant’s tax problems raised Disqualifying Condition 19(g): 
“failure to file annual Federal, state, or local income tax returns as required[.]”1 In evaluating
Applicant’s case for mitigation, the Judge cited to Applicant’s admission that he had failed to file
his returns due to laziness and disorganization.  Although concluding that Applicant was not trying
to avoid paying taxes, he stated that Applicant knew that he had a problem yet did nothing until after
he received the SOR.  
Discussion
Applicant contends that he was denied due process.  He states that the Judge should have
given him more detailed information about his right to counsel.  He states that the Judge erroneously
instructed him as to the rules of evidence, resulting in Applicant’s not understanding that he could
object to Government exhibits.  He also states that he did not know that he could rebut the
Government’s evidence.  
We do not find this argument to be persuasive.  Prior to the hearing, Applicant received a
memorandum from the Chief Administrative Judge that provided detailed guidance about his right
to counsel; right to present witnesses and evidence; and right to object to evidence, among other
things.  Applicant received a copy of the Directive, which contains information about these rights,
1Directive, Enclosure 2 ¶ 19(g).  
as well as about an applicant’s right to present evidence and about the burden of persuasion.  Tr. at
5.  In addition, the Judge explained to Applicant his rights and responsibilities for the hearing, each
time Applicant acknowledging that he understood this guidance.  Tr. at 5-8.2  The Judge’s instruction
on the rules of evidence for the hearing was consistent with Directive ¶ E3.1.19.  Applicant
submitted several documents, all of which were admitted into evidence as Applicant Exhibits A
through L (Tr. at 13), which suggests that he understood his evidentiary rights.  Before admitting
Government exhibits, the Judge asked Applicant if he objected.  In particular, before ruling on the
admission of a summary of Applicant’s clearance interview, the Judge explained that if Applicant
objected to the document, it would not be admitted but if he did not object then the Judge would
consider it, and he explained the reason that the document might be inadmissible, its lack of
authentication.  Applicant stated that he did not object to this document.  Tr. at 11-12.  After
considering Applicant’s arguments in light of the record in its entirety, we conclude that Applicant
received guidance sufficient to have apprised a reasonable person of his rights at the hearing.  We
find no reason to conclude that Applicant was denied the due process afforded by the Directive.  
Applicant contends that the Judge was biased against him.  He argues that the Judge acted
in a prosecutorial manner, constantly interrupting Applicant and “employing leading questions to
support a foregone conclusion.”  Appeal Brief at 6.  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. 14-03108 at 3 (App. Bd. May 20, 2015).  Bias involves
partiality for or against a party, predisposition to decide a case or issue with regard to the merits, or
other indicia of a lack of impartiality.  See, e.g., ISCR Case No. 12-09545 at 3 (App. Bd. Dec. 21,
2015).  
We have reviewed the transcript and conclude that the Judge did not act in a manner that
would persuade a reasonable person that he was biased against Applicant.  As stated above, he
properly advised Applicant of his rights at the hearing and encouraged him to ask questions in case
he did not understand something.  During the course of Applicant’s testimony, the Judge engaged
in a colloquy with him.  Applicant admitted that he had failed to file his taxes because he “had been
too busy, lazy and disorganized” to do so.  He testified that his circumstances had probably given
him an ulcer. Tr. at 17-18.  The Judge stated, “It’s a lot of self-generated anxiety . . . You might have
been better off spending a couple dollars and having somebody do it for you.”  Id. at 18.  The
Judge’s observations were not leading questions but comments upon the evidence, in particular
Applicant’s testimony that his failure to have complied with tax laws was inexplicable.3  Id. at 19. 
The Judge appears to have expressed sympathy for Applicant when, after Applicant testified about
his feelings after having filed his returns, the Judge finished the thought for him: “And it wasn’t
nearly as bad as you thought.”  Id.  Toward the end of the hearing, the Judge made a joke that could
have been interpreted as sarcastic or otherwise not befitting the circumstances.  However, we do not
2Early in the hearing, Applicant stated that he did not fully understand the documents he had received.  The
Judge told him to be sure and ask any questions that may arise, and the Judge and Department Counsel would attempt
to help him.  Applicant stated in response that he had no questions at that time.  Tr. at 6.  The Judge continued with a
detailed explanation of DOHA procedures, and Applicant stated that he understood them.  
3Applicant had testified as follows:  “ I don’t know how to explain it.  I really don’t, sir. . . I just cannot give
you an answer that justifies anything.” 
conclude that this evidenced an inflexible predisposition to make an adverse decision.  Examining
the record in its  entirety, we conclude that Applicant has not met his burden of persuasion that the
Judge was biased against him.
Applicant contends that the Government did not meet its burden of production.  He argues
that his case does not raise concerns under Guideline F.4  The Government’s burden of producing
evidence arises only as regards facts alleged in the SOR that have been controverted.  Directive ¶
E3.1.14.  Applicant admitted the two allegations at issue here.  Therefore, they were not
controverted, relieving the Government of its burden of production.  Nevertheless, the Government
presented evidence in the form of Applicant’s answers on the security clearance application and the
summary of his clearance interview, which, when viewed in light of Applicant’s testimony at the
hearing, constitute substantial evidence of the SOR allegations, even without regard to Applicant’s
admissions.5  The Directive presumes a nexus between admitted or proved conduct under any of the
Guidelines and an applicant’s eligibility for a clearance.  See, e.g., ISCR Case No. 14-04648 at 3
(App. Bd. Sep. 9, 2015).  Indeed, as the Judge found and as Applicant acknowledges, the Directive
explicitly states that failure to file tax returns as required is potentially disqualifying under Guideline
F.  Applicant’s arguments are not enough to rebut the presumption of nexus.    
The balance of Applicant’s argument is a challenge to the Judges’s application of the
mitigating conditions and whole-person factors.  Applicant’s brief asserts matters from outside the
record, which we cannot consider.  Directive ¶ E3.1.29.  He asserts that the Judge did not consider
evidence favorable to him, for example that he has now filed his delinquent returns, that he has paid
his tax obligations, etc.  However, a Judge is presumed to have considered all of the evidence in the
record.  See, e.g., ISCR Case No. 14-06093 at 3 (App. Bd. Dec. 4, 2015).  Applicant’s arguments
are not enough to rebut that presumption.  
Applicant’s brief consists in large measure in challenging the Judge’s weighing of the
evidence.  In doing so, he cites to some other cases that he believes support his effort to obtain a
clearance.  However, each case must be decided on its own merits.   Directive, Enclosure 2 ¶ 2(b). 
An ability to argue for an alternative interpretation of the evidence is not enough 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).  We conclude that the Judge’s whole person
analysis complies with the requirements of Directive ¶ 6.3, in that the Judge considered the totality
4Applicant argues, among other things, that he did not fail to file his returns, he simply filed them late. 
However, to file returns after the date upon which they are due, in this case years afterward, is obviously a failure to file
them as the law requires.  See, e.g., ISCR Case No. 12-01266 (App. Bd. Apr. 4, 2014), in which the Judge entered
adverse findings against an applicant upon an allegation that he had filed his 2004 through 2007 tax returns in 2013. 
See also ISCR Case No. 95-0578 at 4 (App. Bd. Oct 2, 1996): “Applicant’s belated filing of his state and [F]ederal
income taxes does not mitigate his earlier failure to file . . . [he] did not file his income tax returns until after he received
the SOR . . . there is little mitigating value associated with Applicant’s extremely belated filing of his . . . income tax
returns.”   
5Substantial evidence is “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.”  ISCR Case No. 13-01281 at 3 (App. Bd. Aug. 4,
2014). 
of the evidence in reaching his decision. See, e.g., ISCR Case No. 14-02806 at 4 (App. Bd. Sep. 9,
2015). 
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: Jeffrey D. Billett              
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: James E. Moody               
James E. Moody
Administrative Judge
Member, Appeal Board