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ISCR Case 08-07463.a1 — CASE

ISCR Case 08-07463.a1denied

Case Headnote

ISCR Case No. 08-07463.a1

Apr 17, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline F (Financial Considerations) due to unmitigated financial issues. The appeal board affirmed this denial, concluding that the judge had adequately weighed the evidence and provided a sound rationale for the unfavorable decision.

The denial stemmed from the application of Disqualifying Condition F1, which the applicant failed to sufficiently mitigate. While Mitigating Condition F2 was considered, the judge determined it was insufficient to overcome the government's security concerns.

Ultimately, the applicant failed to demonstrate that the judge's decision was arbitrary or contrary to law. The judge's explanation for why the mitigating evidence was insufficient was deemed reasonable, leading to the final denial of the security clearance.

Conditions Referenced

Disqualifying

F1raisedFinancial Considerations

Mitigating

F2rejectedMitigating ConditionsThe judge weighed the mitigating evidence against the seriousness of the disqualifying conduct.

Key Rule Quoted

“Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation.”

Procedural Posture

SOR issuedAug 28, 2008
Answer filed—
Hearing heldFeb 2, 2009
Decision dateApr 17, 2009

Cite For

Burden of Proof Shifts to Applicant After Government Raises Security Concerns
Judge's Discretion in Weighing Evidence
Insufficient Mitigating Evidence Does Not Compel a Favorable Decision

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 filed by the applicant after the Administrative Judge denied his request for a security clearance based on financial considerations. The applicant argued that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDarlene Lokey Anderson — 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 decision is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board concluded 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. The Judge's unfavorable security clearance decision is sustainable.

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

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: Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Adverse decision affirmed. CASENO: 08-07463.a1 DATE: 04/17/2009 DATE: April 17, 2009 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-07463

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 28, 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 February 2, 2009, after the hearing, Administrative Judge Darlene Lokey Anderson denied Applicant’s request for a security clearance. Applicant 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 is arbitrary, capricious or contrary to law. Applicant argues that the Judge’s adverse decision is unfair because it focuses on only one part of his life. Applicant has not demonstrated that the Judge’s decision is arbitrary, capricious or contrary to law. Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. 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). 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. 06-17409 at 3 (App. Bd. Oct. 12, 2007). In this case, 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. The Judge reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. After reviewing the record, the Board concludes 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 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, 484 U.S. 518, 528 (1988). Therefore, the Judge’s ultimate unfavorable security clearance decision 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