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ISCR 17-03043.a3: Guideline F security clearance appeal, denied (2019) · CASE

Case record

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

Decision Date8/27/2019
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionsSee the hearing decision (Case 17-03043) →See the appeal decision (Case 17-03043.a2) →See the hearing decision (Case 17-03043) →See the appeal decision (Case 17-03043.a1) →See the hearing decision (Case 17-03043.h1) →
Participants
Applicant Representation: Pro Se
Judge: Michael Y. Ra'anan, James E. Moody, James F. Duffy
Government Counsel: James B. Norman
Guidelines Evaluated
- FFinancial Considerations · Against Applicant
Other decisions whose allegations most closely resemble this one’s. Similarity of the allegations only.
Finding similar decisions…

ISCR Case 17-03043.a3denied

Case headnote

ISCR Case No. 17-03043.a3

Aug 27, 2019· Hon. Michael Y. Ra'anan· appeal

Summary

A 59-year-old federal contractor, with a background in military and civil service, was denied a security clearance under Guideline F (Financial Considerations). The denial stemmed from federal tax deficiencies and multiple delinquent debts.

While some debts were resolved, the appeal board noted insufficient progress on others and a pattern of untimely federal tax filings. The applicant attributed these issues to personal distractions.

Despite the application of mitigating conditions AG ¶ 21(a) and AG ¶ 21(c), the board concluded that the applicant's financial problems were likely to recur, leading to the denial of the security clearance.

Conditions referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21(a)rejectedThe Behavior Was Not RecentThe applicant did not demonstrate sufficient progress in resolving financial issues.
AG ¶ 21(c)rejectedThe Individual Has Received or Is Receiving Counseling for the ProblemThe applicant's claims of counseling were not substantiated with evidence presented to the judge.

Key rule quoted

“The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision.”

Procedural posture

SOR issuedJan 16, 2018
Answer filed—
Hearing heldNov 27, 2018
Decision dateJun 21, 2019
Appeal decision dateAug 27, 2019

Cite for

Insufficient Progress on Financial Obligations Under Guideline F
Timeliness of Tax Filings as a Security Concern
The Weight of Mitigating Evidence in Security Clearance 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 an applicant who was denied a security clearance due to financial considerations under Guideline F. The applicant argued that the Judge's decision was arbitrary and that she had made sufficient progress in resolving her financial issues. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMark Harvey denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argued that the Judge's adverse decision was arbitrary, capricious, or contrary to law.
Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant contended that she demonstrated sufficient progress in resolving her financial problems.
No specific harmful error alleged, raised by the applicantRejected
Applicant failed to show the Judge committed any harmful error.

Why the Board ruled this way

The Board found that the Judge properly weighed the evidence and articulated a satisfactory explanation for the decision, with 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-decisionNo new evidence on appeal

Appeal Board panel

Michael Ra’anan (Chair)
James E. Moody
James F. Duffy

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 presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. A party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. Applicant also argues that she does not have access to classified information. However, we have no authority to consider the extent to which an applicant may or may not actually have access to classified information in the course of his or her job. Adverse decision affirmed. CASENO: 17-03043.a3 DATE: 08/27/2019 DATE: August 27, 2019 ) In Re: ) ) -------------------- ) ISCR Case No. 17-03043 ) ) Applicant for Security Clearance ) )

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On January 16, 2018, 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 November 27, 2018, after the hearing, Administrative Judge Mark Harvey initially denied Applicant’s request for a security clearance, which she appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. On March 12, 2019, and June 11, 2019, we remanded this case to the Judge for corrective action. It is now before us on Applicant’s appeal of the Judge’s latest adverse decision that is dated June 21, 2019. Applicant raised the following issue in her current appeal: whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact and Analysis At the time of the hearing, Applicant was a 59-year-old employee of a Federal contractor. She has served in the military and has retired from Federal civil service. She has worked for the Federal government or government contractors for 41 years. The SOR alleged that Applicant had Federal tax deficiencies. She failed to file some of her Federal income tax returns in a timely manner. She filed her 2013 Federal income tax return in November 2017 and her 2014-2015 Federal income tax returns in May 2017. She indicated that she did not file her tax returns as required because she was distracted by family issues that included a child’s and in-law’s drug addiction, a child’s incarceration, and a grandchild’s severe injury. She estimated she owes about $12,500 in past-due Federal taxes. In February 2018, she began making monthly payments of $380 to the IRS under a payment plan and made all of the scheduled payments up to the time of the hearing. The Judge found in favor of Applicant on the Federal tax debt and against her on the tax filing deficiency. The SOR further alleged that Applicant had seven other delinquent debts. The Judge’s favorable findings on four of the debts are not contested on appeal. The Judge found against Applicant on (1) a charged-off bank debt for about $500 that she conceded she did not get around to making payments to resolve; (2) a rental apartment debt in collection for over $4,200 that she disputed, but failed to provided a copy of the dispute; and (3) a past-due debt for about $340 with a balance of about $5,000 on an uninsured, wrecked vehicle that she said she plans to pay. While Applicant has resolved some debts, she did not act responsibly in handling other alleged debts. She did not provide a good reason for failing to file her Federal tax returns in a timely manner and did not show sufficient progress toward resolving three delinquent debts. She has not established that similar financial problems are unlikely to recur.

DISCUSSION

Applicant’s appeal brief contains documents and assertions that were not presented to the Judge for consideration. Such assertions include that she hired a debt resolution company and that certain debts have been disputed and removed from her credit report. The Appeal Board is prohibited from considering new evidence on appeal. Directive ¶ E3.1.29. Applicant also raised assignments of error regarding SOR allegations that the Judge found in her favor. We need not address those assignments of error. Applicant challenges the Judge’s conclusion that she has not made sufficient progress toward resolving her delinquent debts. She argues she has demonstrated that she is dedicated to resolving her financial problems. In her arguments, she highlights the family issues that contributed to her financial problems, her efforts to resolve them, and her character evidence. The Appeal Board has previously stated that the presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. A party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 15-00650 at 2 (App. Bd. Jun. 27, 2016). Applicant also argues that she does not have access to classified information. However, we have no authority to consider the extent to which an applicant may or may not actually have access to classified information in the course of his or her job. See, e.g., ISCR Case No. 14-00508 at 2-3 (App. Bd. Jan. 23, 2015). Applicant has failed to show the Judge committed any harmful error. 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 at 528. See also Directive, Encl. 2, App. A ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility 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: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board