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ISCR Case 09-05176.a1 — CASE

ISCR Case 09-05176.a1denied

Case Headnote

ISCR Case No. 09-05176.a1

Dec 14, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

A senior contract specialist was denied a security clearance under Guideline F (Financial Considerations) due to numerous delinquent debts. The applicant had outstanding financial obligations including a judgment from an eviction, unpaid medical expenses, and a repossessed vehicle.

The judge determined there was insufficient evidence of the applicant's efforts to resolve these debts or other mitigating factors, such as participation in financial counseling. The applicant's claims of due process violations were found to be unsubstantiated.

The appeal board affirmed the denial, concluding that there were no due process violations and that substantial evidence supported the judge's findings. The security clearance was ultimately denied.

Conditions Referenced

Disqualifying

F1raisedFinancial Considerations

Key Rule Quoted

“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)

Procedural Posture

SOR issuedMar 24, 2010
Answer filed—
Hearing heldSep 30, 2010
Decision dateDec 14, 2010

Cite For

Affirmation of Denial Based on Financial Considerations Under Guideline F
Insufficient Evidence of Mitigation in Financial Cases
Due Process Claims in Security Clearance Cases

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 she was denied due process and that the Judge's findings were not supported by substantial evidence. The Board affirmed the Judge's decision, finding no harmful errors in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowArthur E. Marshall, Jr. — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant contended that she was denied due process.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge's findings of fact were not supported by substantial record evidence.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant claimed that the Judge erred in his application of the mitigating conditions.

Why the Board ruled this way

The Board found that the Judge's findings were based on substantial evidence and that the applicant was not denied due process. The adverse decision was affirmed as sustainable on the record.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decision

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: Applicant was not denied due process. The Judge’s findings of fact were based upon substantial record evidence. Adverse decision affirmed. CASE NO: 09-05176.a1 DATE: 12/14/2010 DATE: December 14, 2010 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-05176

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 March 24, 2010, 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 30, 2010, after the hearing, Administrative Judge Arthur E. Marshall, Jr., denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether she was denied due process; whether the Judge’s findings of fact were supported by substantial record evidence; and whether the Judge erred in his application of the mitigating conditions. Consistent with the following discussion,

FOOTNOTES

1 While it is possible that, when Applicant lost her job in January 2008, processing of her SCA halted, there is no record evidence from which to draw a conclusion. we affirm the decision of the Judge. The Judge made the following pertinent findings of fact: Applicant is a senior contract specialist working for a Defense contractor. She previously held a security clearance in the 1990swhile working for a prior employer. In 2007 she took a job requiring a security clearance and submitted a security clearance application (SCA) in August of that year. “When she started her present job, she was unaware that her 2007 [SCA] had not been approved.” Decision at 2. Applicant has numerous delinquent debts, for such things as a judgment against her following her eviction from an apartment, medical expenses, a student loan, a repossessed vehicle, etc. These delinquencies originated during a period of unemployment in the early 2000s. Applicant was employed, although with frequent job changes, in the years since. For purposes of this appeal, it is pertinent to note the Judge’s finding that, in January 2008, Applicant was dismissed from the job she had taken in 2007 and for which she had submitted a SCA. In the Analysis portion of the decision, the Judge acknowledged that Applicant’s unemployment had been a circumstance beyond her control. However, he went on to state that Applicant had provided little evidence of efforts to resolve her bad debts or of other kinds of mitigation, such as the receipt of financial counseling, etc. The Judge concluded that Applicant had failed to meet her burden of persuasion as to mitigation. Applicant contends that she was denied due process. She states that, until she read the Judge’s sentence quoted above, she was not aware that her 2007 SCA had been disapproved. She contends that, had she known about the prior disapproval, she would have presented her case differently at the hearing. We have considered this issue in light of the record as a whole. The Judge’s statement appears to refer to Applicant’s own testimony concerning the circumstances of her SCA: “[The 2007 SCA] was my first re-application . . . Q: So when you started at [current employer] . . . A: I didn’t even realize the clearance had not been approved.” Tr. at 27. There is nothing in the record to indicate that her 2007 SCA had been adjudicated and denied.1 Moreover, there is nothing in the record to suggest that Applicant was denied adequate notice of the security concerns alleged against her or access to the evidence which the Government used in presenting its case at the hearing. Neither is there any basis to conclude that Applicant was denied other due process rights afforded by the Directive. Concerning her claim that the Judge made factual errors, the record demonstrates that the Judge’s material findings 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. 08-11735 at 3 (App. Bd. Sep. 21, 2010). Furthermore, we have considered the Judge’s treatment of the pertinent mitigating conditions and conclude that it is sustainable. The record supports a conclusion 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 Judge’s adverse decision is sustainable on this record. “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). Order The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, 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