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ISCR Case 05-06935.a1 — CASE

ISCR Case 05-06935.a1denied

Case Headnote

ISCR Case No. 05-06935.a1

Jul 30, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline F (Financial Considerations) due to a history of unmet financial obligations and ongoing significant debts. The judge found that the applicant's financial problems were recent and persistent, raising concerns under Disqualifying Condition AG ¶ 19.

Despite the applicant's arguments, the judge determined that the mitigating conditions under AG ¶ 20 were not sufficiently met. Specifically, the applicant failed to demonstrate that the financial concerns had been resolved. Significant outstanding debts remained at the time of the decision, and the long history of not meeting financial obligations was a primary factor.

The appeal affirmed the judge's initial decision, concluding that the applicant had not adequately mitigated the financial concerns, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20rejectedFinancial ConsiderationsThe applicant's attempts to consolidate debts and lack of security issues at work did not mitigate the ongoing financial problems.

Key Rule Quoted

“The federal government need not wait until an applicant actually mishandles or fails to properly handle classified information before it can deny or revoke access to such information.”
— Adams v. Laird, 420 F. 2d 230, 238-239 (D.C. Cir. 1969), cert. denied, 397 U.S. 1039 (1970)

Procedural Posture

SOR issuedJan 25, 2006
Answer filed—Applicant represented himself.
Hearing heldJan 31, 2007
Decision dateJul 30, 2007

Cite For

Denial of Security Clearance Based on Ongoing Financial Difficulties Under Guideline F
Burden of Proof on Applicant to Demonstrate Mitigation of Financial Concerns
Whole-person Analysis in Security Clearance Determinations.

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 was from a denial of a security clearance based on financial considerations under Guideline F. The Applicant argued that the Judge's decision was arbitrary and capricious, claiming that his financial issues had been mitigated. The Board affirmed the denial, finding no harmful error in the Judge's decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowElizabeth M. Matchinski — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Applicant argued that the Judge's unfavorable clearance decision under Guideline F was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the Applicant did not demonstrate that the Judge's conclusions were arbitrary, capricious, or contrary to law.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan — Chair
Jean E. Smallin
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 F DIGEST: The federal government need not wait until an applicant actually mishandles classified information before it can deny access to such information. Adverse decision affirmed. CASENO: 05-06935.a1 DATE: 07/30/2007 DATE: July 30, 2007 In Re: ---------- SSN: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 05-06935

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On January 25, 2006, DOHA 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. The SOR was amended on motion of the government without objection from the Applicant. On January 31, 2007, after the hearing, Administrative Judge Elizabeth M. Matchinski denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s unfavorable clearance decision under Guideline F is arbitrary, capricious, or contrary to law. Applicant argues that the Judge should have concluded that the security concerns raised by his history of financial difficulties had been mitigated because his unpaid debts predated his current job, he has been attempting to consolidate those debts and obtain a bank loan to pay them off, if possible, and he has had no security issues during his four and one half years with his current employer. Applicant’s arguments do not demonstrate that the Judge erred. The federal government need not wait until an applicant actually mishandles or fails to properly handle classified information before it can deny or revoke access to such information. See Adams v. Laird, 420 F. 2d 230, 238-239 (D.C. Cir. 1969), cert. denied, 397 U.S. 1039 (1970). An applicant with good or exemplary job performance may engage in conduct that has negative security implications. See, e.g., ISCR Case No. 99-0123 at 3 (App. Bd. Jan. 11, 2000). The Directive's Guidelines set forth a variety of examples of off-duty conduct and circumstances which are of security concern to the government and mandate a whole-person analysis to determine an applicant's clearance eligibility. A whole-person analysis is not confined to the workplace. See ISCR Case No. 03-11231 at 3 (June 4, 2004). “[T]here is a strong presumption against granting a security clearance.” Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). Once the government th presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The application of disqualifying and mitigating conditions does not turn simply on a finding that one or more of them apply to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole. See, e.g., ISCR Case No. 01-14740 at 7 (App. Bd. Jan.15, 2003). Thus, 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. An applicant’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 that the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. The Applicant has not met his burden of demonstrating that the Judge erred in concluding that the financial considerations allegations had not been mitigated. Although Applicant strongly disagrees with the Judge’s conclusions, he has not established that those conclusions are arbitrary, capricious, or contrary to law. See Directive ¶ E3.1.32.3. In this case, the Judge found that Applicant had a history of not meeting financial obligations which extended over many years. At the time the case was submitted for decision he still had significant outstanding debts and was still attempting to make arrangements to repay them. In light of the foregoing, the Judge could reasonably conclude that Applicant’s financial problems fell within the disqualifying conditions and had not been mitigated because they were recent and still ongoing. The favorable record evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 02-28041 at 4 (App. Bd. June 29, 2005). The Board does not review a case de novo. Given the record that was before her, the Judge’s ultimate unfavorable clearance decision under Guideline F is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board