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ISCR Case 07-05434.a1 — CASE

ISCR Case 07-05434.a1denied

Case Headnote

ISCR Case No. 07-05434.a1

Feb 24, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance under Guideline F (Financial Considerations) due to significant financial concerns. The denial was upheld by the appeal board.

The primary disqualifying condition was a serious history of not meeting financial obligations, specifically F.1. At the time of the decision, the applicant still carried significant outstanding federal tax debt.

While the applicant presented mitigating evidence under F.2, it was deemed insufficient to overcome the government's security concerns. Consequently, the appeal board found that the applicant's mitigating circumstances did not outweigh the ongoing financial issues, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

F.1raisedFinancial Considerations

Mitigating

F.2rejectedMitigating CircumstancesThe Judge found the mitigating evidence insufficient to overcome the government's security concerns.

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 issuedAug 13, 2008
Answer filed—
Hearing heldDec 19, 2008
Decision dateFeb 24, 2009

Cite For

Insufficient Mitigating Circumstances Under Guideline F
Ongoing Financial Issues as a Basis for Denial
The Standard of Review for Judge's Findings of Fact

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 regarding the denial of a security clearance under Guideline F due to financial considerations. The applicant argued that the Judge did not adequately weigh mitigating evidence related to his financial situation. The Board affirmed the Judge's decision, finding no harmful error in the Judge's conclusions.

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
Applicant contends that the Judge’s adverse decision should be reversed because the Judge did not give sufficient weight to Applicant’s mitigating evidence.

Why the Board ruled this way

The Board concluded that the Judge’s material findings of security concern are based on substantial evidence and that the Judge reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns.

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
William S. Fields
James E. Moody

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 Judge’s material findings of fact are based on substantial evidence. A party’s disagreement with the Judge’s weighing of the evidence is not sufficient to demonstrate error. Adverse decision affirmed. CASENO: 07-05434.a1 DATE: 02/24/2009 DATE: February 24, 2009 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-05434

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 August 13, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of The Judge’s favorable finding as to SOR ¶ 1(e) is not at issue on appeal. 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 December 19, 2008, 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 adverse clearance decision under Guideline F is arbitrary, capricious or contrary to law.1 Applicant contends that the Judge’s adverse decision should be reversed because the Judge did not give sufficient weight to Applicant’s mitigating evidence, which indicated that Applicant’s inability to satisfy his outstanding federal tax debt was due to circumstances beyond his control. He also contends that the Judge’s findings of fact give a distorted picture of his financial situation. Applicant has not demonstrated the Judge’s decision is arbitrary, capricious or contrary to law. (1) The Board’s review of a Judge’s findings is limited to determining if they are supported by substantial evidence—such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the record. Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620, (1966). Moreover, there is a presumption that the Judge considered all the evidence unless she states otherwise. See, e.g., ISCR Case No. 96-0228 at 3 (App. Bd. Apr. 3, 1997). The Judge is not required to discuss each and every piece of record evidence. See, e.g., ISCR Case No. 05-03143 at 2 (App. Bd. Dec. 20, 2006). After reviewing the record, the Board concludes that the Judge’s material findings of security concern are based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from the record. Applicant has not identified any harmful error likely to change the outcome of the case. Considering the record evidence as a whole, the Judge’s material findings of security concern are sustainable. See, e.g., ISCR Case No. 06-21025 at 2 (App. Bd. Oct. 9, 2007). (2) 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. See, e.g., ISCR Case No. 06-10320 at 2 (App. Bd. Nov. 7, 2007). 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 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. 06-17409 at 3 (App. Bd. Oct. 12, 2007). Applicant’s house was foreclosed on in August 2007, and he owed the mortgage company over $11,000. He had not made any payments on that debt and stated that he intended to file for bankruptcy to discharge it after he had paid other delinquent debts. Decision at 3. In this case, the Judge found that Applicant had a serious history of not meeting financial obligations. At the time the case was submitted for decision, Applicant still had a significant amount of outstanding federal tax debt, and was still trying to resolve his financial problems. In light of the foregoing, the Judge could reasonably conclude that those problems were still ongoing. See, e.g., ISCR Case No. 05-07747 at 2 (App. Bd. Jul. 3, 2007). The Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. She found in favor of Applicant as to one of the SOR allegations. However, she reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. The favorable 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. 06-11172 at 3 (App. Bd. Sep. 4, 2007). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for her 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)). Therefore, the Judge’s ultimate unfavorable security 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board