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ISCR Case 21-00359 — CASE

Case record

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

Decision Date1/18/2023
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 21-00359) →
Participants
Applicant Representation: Pro Se
Judge: Moira D. Modzelewski, Jennifer I. Goldstein, James F. Duffy
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline EPersonal Conduct · Against Applicant
- Guideline FFinancial Considerations · Against Applicant
- Guideline KHandling Protected Information · Against Applicant

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Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
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ISCR Case 21-00359denied

Case Headnote

ISCR Case No. 21-00359

Jan 18, 2023· Hon. Moira D. Modzelewski· appeal

Summary

A security clearance applicant, representing herself, was denied clearance under Guidelines E (Personal Conduct), F (Financial Considerations), and K (Handling Protected Information). The denial stemmed from multiple delinquent debts and repeated security infractions.

Specifically, the applicant failed to provide sufficient evidence that her 11 delinquent debts were being resolved or were under control. Additionally, she incurred repetitive security infractions over a six-month period, which persisted despite counseling and training.

The applicant's denial of these security infractions was found to lack credibility, further undermining her judgment and reliability. The appeal was denied as the judges determined there was insufficient evidence to mitigate the concerns raised, particularly regarding the applicant's credibility and financial management.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 31raisedPersonal Conduct
AG ¶ 33raisedHandling of Protected Information

Key Rule Quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with national security.’”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedMay 28, 2021
Answer filed—
Hearing heldNov 3, 2022record closed
Decision dateJan 18, 2023appeal decision

Cite For

Insufficient Evidence to Mitigate Financial Concerns Under Guideline F
Credibility Issues Impacting Personal Conduct Under Guideline E
Standard for Security Clearance Decisions Consistent with National Security

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 concerned the denial of a security clearance based on financial considerations and personal conduct. The applicant argued that the Judge was biased and mis-weighed evidence. The Board affirmed the decision, finding no harmful error in the Judge's ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPaul J. Mason — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline FGuideline KGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge was rude, condescending, and biased against her.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant asserts that the Judge mis-weighed or did not consider record evidence.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision, which was supported by substantial evidence and articulated a satisfactory explanation for the denial of the security clearance. The Judge's findings were not arbitrary or capricious, and the presumption of impartiality was not rebutted.

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

James F. Duffy — Chair
Jennifer I. Goldstein
Moira Modzelewski

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

APPEARANCES

_______________________________________________ ) In the matter of: ) ) ) ----- ) ISCR Case No. 21-00359 ) ) Applicant for Security Clearance ) _______________________________________) DEPARTMENT OF DEFENSE DEFENSE LEGAL SERVICES AGENCY DEFENSE OFFICE OF HEARINGS AND APPEALS APPEAL BOARD POST OFFICE BOX 3656 ARLINGTON, VIRGINIA 22203 (703) 696-4759 Date: January 18, 2023

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 May 28, 2021, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision―security concerns raised under Guideline F (Financial Considerations), Guideline K (Handling of Protected Information) and Guideline E (Personal Conduct) of DoD Directive 5220.6 (January 2, 1992, as amended) (Directive). Applicant requested a hearing. Prior to the hearing, Department Counsel amended the SOR to add Guideline F allegations. On November 3, 2022, after the record closed, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Paul J. Mason denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The Judge stated that the sole Guideline E allegation was withdrawn1 and found in favor of Applicant on two Guideline F delinquent debt allegations. The Judge found against Applicant on the remaining allegations, which asserted that Applicant had 11 delinquent debts totaling over $36,000 and that she was terminated from a job for security infractions in 2020. The Judge 1 It appears the Judge erred in concluding the Guideline E allegation was withdrawn. In his analysis, the Judge stated the Guideline E allegation was unnecessary given the other allegations. Consequently, it appear the Judge intended to find in favor of Applicant on the Guideline E allegation.

concluded that Applicant failed to provide sufficient evidence that the 11 debts were being resolved or were under control and that her repetitive security infractions over a six-month period despite counseling and training were not mitigated. The Judge further concluded that Applicant’s denial of the security infractions lacked credibility and undermined her judgment and reliability. On appeal, Applicant contends the Judge “was rude, condescending, and would not allow [her] to complete [her] sentences.” Appeal Brief at 1. We construe this assertion as a claim that the Judge was biased against her because he treated her unfairly. This assignment of error is not persuasive. 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. 17-02391 at 2 (App. Bd. Aug. 7, 2018). We have examined the entire record and Decision, paying particular attention to the transcript of the hearing. We find nothing therein that would cause a reasonable person to question the Judge’s impartiality in this case. The Judge’s comments and questions, while short-tempered, appear to be efforts at hearing administration and to clarify Applicant’s testimony. Id., quoting Liteky v. United States, 510 U.S. 540 at 555-556 (1994) (“[E]xpressions of impatience, dissatisfaction, annoyance, and even anger” do not establish bias. “A judge’s ordinary effort at courtroom administration―even a stern and short-tempered Judge’s ordinary efforts at courtroom administration―remain immune.”). Applicant has not rebutted the presumption that the Judge was unbiased or established that she was denied any due process afforded her under the Directive. The remainder of Applicant’s appeal brief consists of an explanation regarding the alleged debts and security violations. She does not specifically assert the Judge committed any error. To the extent that she is contending the Judge mis-weighed or did not consider record evidence, we find no merit in those assertions. None of her arguments are enough to rebut the presumption that the Judge considered all of the record evidence or to demonstrate the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 21-01169 at 5 (App. Bd. May 13, 2022). Applicant also asserts that she cannot resolve her financial problems without a job. However, the adverse impact of an unfavorable security clearance decision is not a relevant consideration in evaluating clearance eligibility. See, e.g., ISCR Case No. 19-02397 at 1 2 (App. Bd. May 6, 2020). Applicant failed to establish that the Judge committed any harmful error. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on the record. “The general standard is that a clearance may be granted only when ‘clearly consistent with national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 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 national security.”

ORDER

The decision is AFFIRMED. Signed: James F. Duffy James F. Duffy Administrative Judge Chairperson, Appeal Board Signed: Jennifer I. Goldstein Jennifer I. Goldstein Administrative Judge Member, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board