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ISCR Case 07-08820.a1 — CASE

ISCR Case 07-08820.a1denied

Case Headnote

ISCR Case No. 07-08820.a1

Mar 3, 2009· Hon. Jean E. Smallin· appeal

Summary

A 53-year-old defense contractor employee was denied a security clearance due to significant financial concerns under Guideline F. The applicant had a history of bankruptcy and over $150,000 in delinquent debts, which raised Disqualifying Condition F.3.

The judge determined that the applicant failed to demonstrate good faith efforts to resolve these overdue debts, noting that contact with creditors only occurred on the day of the hearing. This lack of proactive engagement was a key factor in the denial.

The appeal board reviewed the decision and found no error in the judge's analysis. They affirmed that the denial was not arbitrary or capricious, emphasizing that each security clearance case must be evaluated on its own merits, leading to the final outcome of denial for this applicant.

Conditions Referenced

Disqualifying

F.3raisedFinancial Considerations

Key Rule Quoted

“Each case must be decided upon its own merits.”

Procedural Posture

SOR issuedMar 6, 2008
Answer filed—
Hearing heldDec 19, 2008
Decision dateMar 3, 2009

Cite For

Evaluation of Financial Concerns Under Guideline F
Good Faith Efforts in Resolving Debts
Case-by-case Merit Evaluation 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 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. The Board affirmed the Judge's decision, finding no error in the analysis or conclusions reached.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMartin H. Mogul — 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 argued that the Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision, affirming that the Judge's analysis was not arbitrary or capricious and that the decision was consistent with national security interests.

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

Jean E. Smallin
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: Although Applicant disagrees with the weight the Judge assigned to certain pieces of evidence, he has not demonstrated that the Judge’s analysis is arbitrary, capricious, or contrary to law. Applicant points to other decisions by the Hearing Office, which he argues support his request for a favorable determination. The Board gives due consideration to these cases. However, each case must be decided upon its own merits. Moreover, Hearing Office decisions are binding neither on other Hearing Office Judges nor on the Board. Adverse decision affirmed. CASENO: 07-08820.a1 DATE: 03/03/2009 DATE: March 3, 2009 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-08820

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Alan V. Edmunds, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On March 6, 2008, 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. On December 19, 2008, after the hearing, Administrative Judge Martin H. Mogul denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is a 53 year-old employee of a Defense contractor. In 2004 he petitioned for Chapter 13 bankruptcy, which was dismissed in 2005. Applicant had filed for Chapter 7 protection in 2000, in which he discharged debts of $42,467. Since his discharge in bankruptcy, Applicant had amassed a substantial amount of delinquent debt, for such things as a salary overpayment, consumer purchases, income taxes, etc. The total amount of debts alleged in the SOR, and for which the Judge found against Applicant, exceeds $150,000. Applicant sent letters to some of his creditors, seeking to establish a repayment plan. However, the Judge noted that Applicant had mailed the letters on the day of the hearing. Applicant also took some on-line courses in financial management, although he took them within three days of the hearing. In the Analysis section of his decision, the Judge stated that Applicant “has not made a good faith effort to resolve his current overdue debts. I cannot conclude that Applicant has acted responsibly under these circumstances because he only attempted to contact most of these creditors on the day of the hearing[.]” Decision at 6. The Board has considered all the arguments contained in Applicant’s brief, evaluating them in light of the record as a whole. Although Applicant appears to disagree with the weight which the Judge assigned to certain pieces of evidence, e.g., documents regarding disputed debts, he has not demonstrated that the Judge’s analysis is arbitrary, capricious, or contrary to law. See ISCR Case No. 07-07144 at 3 (App. Bd. Oct. 7, 2008). In support of his appeal, Applicant points to other decisions by the Hearing Office, which he argues support his request for a favorable determination. The Board gives due consideration to these cases. However, each case “must be decided upon its own merits.” Directive ¶ E2.2.3. Moreover, Hearing Office decisions are binding neither on other Hearing Office Judges nor on the Board. See ISCR Case No. 06-24121 at 2 (App. Bd. Feb. 5, 2008). In light of the record as a whole, the Judge has drawn a rational connection between the facts found and his ultimate adverse security clearance decision, both as regards the mitigating conditions and the whole-person factors. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). See also 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 decision that “it is not clearly consistent with national security to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 7. See also Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security’”).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, 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