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ISCR Case ISCR Case No. 08-10079 — CASE

ISCR Case ISCR Case No. 08-10079denied

Case Headnote

ISCR Case No. ISCR Case No. 08-10079

Dec 10, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A 34-year-old married applicant with four children was denied a security clearance under Guideline F, Financial Considerations, due to significant financial difficulties. These issues included being behind on mortgage payments and considering bankruptcy.

The judge's decision to deny the clearance was based on substantial evidence, specifically citing the applicant's failure to mitigate these financial problems. The appeal board subsequently affirmed this denial, concluding that the judge's findings were well-supported and the applicant's arguments on appeal lacked merit.

The denial was upheld, with the board finding that the disqualifying conditions under Guideline F, specifically AG ¶ 20, were applicable and not overcome.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Key Rule Quoted

“The adverse impact of a clearance decision on an applicant is not relevant or material to an applicant’s security eligibility.”

Procedural Posture

SOR issuedMay 18, 2009
Answer filed—
Hearing heldSep 28, 2009
Decision dateDec 10, 2009

Cite For

Affirmation of Denial Based on Substantial Financial Difficulties Under Guideline F
Rejection of New Evidence on Appeal
Irrelevance of Economic Consequences of Clearance Decisions to Eligibility

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 Judge's 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 belowJoan Caton Anthony — 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 decision is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's decision, affirming that the findings were supported by substantial evidence and that the Judge did not act arbitrarily or capriciously in weighing the evidence.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo 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

APPEARANCES

DATE: December 10, 2009 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-10079

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 May 18, 2009, 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 September 28, 2009, after the hearing, Administrative Judge Joan Caton Anthony denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm the Judge’s decision. The Judge made the following relevant findings of fact: Applicant is 34 years old and is married with four children. In 2003, Applicant purchased a home. In 2005, Applicant purchased a second home and moved into it with his family, intending to pay the mortgage on the first home with rent from a tenant. When the tenant fell behind on her rent, Applicant fell behind on his mortgage payments for both houses. The house in which Applicant was living went through foreclosure, and Applicant now rents a home. Applicant still owes over $90,000 to the holders of the first and second mortgages on the second home. Applicant sold the first home to an investor, who brought the mortgage payments up to date. The investor currently makes the mortgage payments, but the mortgage debt will remain in Applicant’s name until the property is sold. Applicant testified that he is behind on current bills. Applicant has considered filing for bankruptcy. Applicant’s father appeared as a character witness, and a family friend described the financial difficulties that Applicant experienced due to the downturn in the housing market. The Appeal Board’s review of the Judge’s findings of facts is limited to determining if they are supported by substantial evidence—“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same 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). In his appeal, Applicant describes the cause of his financial circumstances and his efforts to improve the situation. To the extent that the information was not in the record below, it is new evidence, which the Board cannot consider on appeal. See Directive ¶ E3.1.29. The submission of new evidence does not demonstrate error on the part of the Judge. See, e.g., ISCR Case No. 06- 00184 at 2 (App. Bd. Oct. 9, 2007). Applicant objects to some of the Judge’s statements concerning his financial situation. However, Applicant’s objections are based at least in part on new evidence which was not before the Judge. After reviewing the record, the Board concludes that the Judge’s material findings are based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from the record. The statements are therefore sustainable. See, e.g., ISCR Case No. 06-24013 at 2 (App. Bd. Mar. 4, 2008). Applicant also contends that the Judge did not give adequate weight to his evidence of mitigation. 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. 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. 07-00553 at 2 (May 23, 2008). Applicant requests that he be allowed time to satisfy his debts while maintaining a security clearance. This request could be construed as either (a) a request for a conditional security clearance, or (b) an argument that the Judge’s unfavorable decision should not be affirmed because it will result in adverse financial consequences for Applicant. Under the Directive, there is no authority for a Hearing Office Judge or the Board to grant a conditional security clearance. See, e.g., ISCR Case No. 03-08107 at 4 (App. Bd. Sep. 13, 2005). Moreover, the possible effect a security clearance decision could have on an applicant’s economic situation is not relevant or material to whether a Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 02-11570 at 8 (App. Bd. May 19, 2004). See also ISCR Case No. 08-00899 at n. 1 (App. Bd. Jul. 29, 2008). “The adverse impact of a clearance decision on an applicant is not relevant or material to an applicant’s security eligibility.” Accordingly, Applicant requests relief to which he is not entitled.

ORDER

The Judge’s decision denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, 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