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ISCR Case 09-08142.a1 — CASE

ISCR Case 09-08142.a1denied

Case Headnote

ISCR Case No. 09-08142.a1

Aug 19, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

A mail room supervisor for a government contractor was denied a security clearance under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial was primarily based on significant and unresolved financial delinquencies, which raised Disqualifying Condition F1.

The applicant had numerous delinquent debts and failed to present a reasonable plan for their resolution. Despite citing medical issues and a pending lawsuit for damages, the applicant did not demonstrate a systematic approach to address the financial problems.

Ultimately, the applicant's inability to show a credible plan for debt repayment, coupled with the significant and unresolved nature of the financial issues, led to the denial of the security clearance.

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 issuedFeb 1, 2010
Answer filed—
Hearing heldMay 13, 2010
Decision dateAug 19, 2010

Cite For

Denial of Security Clearance Due to Unresolved Financial Delinquencies Under Guideline F
Importance of Demonstrating a Reasonable Plan for Debt Resolution
Affirmation of Adverse Decisions Based on Substantial Evidence of Financial Irresponsibility

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 an applicant seeking a security clearance after being denied due to financial considerations and personal conduct. The applicant raised several issues regarding the Judge's findings and credibility determinations. The Board affirmed the Judge's decision, finding it supported by substantial evidence and reasonable interpretations of the facts.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoan Caton Anthony — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge erred in her findings regarding his financial situation.
Credibility determination — raised by the applicantRejected
Applicant contended that the Judge erred in her credibility determination.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant claimed that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's findings were based on substantial evidence and that her conclusions were reasonable interpretations of the evidence presented. The Judge's decision was affirmed as it was consistent with national security interests.

Standard of review applied

Substantial-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; Guideline E DIGEST: The Judge’s challenged findings are based on substantial record evidence and are sustainable. Adverse decision affirmed. CASENO: 09-08142.a1 DATE: 08/19/2010 DATE: August 19, 2010 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-08142

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 February 1, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations) and The Guideline E allegations were withdrawn by the Government at the beginning of the hearing. Tr. at 8-9. See Directive, Enclosure 2 ¶ 20(b): “the conditions that resulted in the financial problem were largely beyond the person’s control . . . and the individual acted responsibly under the circumstances[.]” Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On May 13, 2010, 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 raised the following issues on appeal: whether certain of the Judge’s findings of fact were supported by substantial record evidence; whether the Judge erred in her credibility determination; and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Consistent with the following discussion, we affirm the Judge’s decision. The Judge made the following pertinent findings of fact: Applicant is a mail room supervisor for a Government contractor. Another Government contractor has offered him a job at a higher salary. This job requires a security clearance. Widowed, he is the father of an adult daughter. In 2004, Applicant was injured while at work. In 2008, the Workers’ Compensation Commission awarded him $5,700 as well as payment of his medical expenses for the treatment of his injury. In 2005, Applicant was seriously injured when a truck collided with his car. He was unable to work for nearly a year. He has filed a lawsuit against the driver of the truck and hopes to collect $250,000 in damages. He has other medical issues, such as diabetes, high blood pressure, and sleep apnea. He had surgery in September 2006 to correct a problem with nasal blockage. Applicant has experienced unemployment in the past. He was fired from a job in 2003 and then lost a follow-on job after his automobile accident. He worked at another job form May 2006 until June 2008, at which point he was fired. He was unemployed until March 2009, when he began his current employment. Applicant has numerous delinquent debts, for such things as unsatisfied judgements against him, cell phone services, medical expenses, unpaid rent, an automobile loan, etc. Applicant spends more each month than he makes in salary. He was delinquent in paying his federal income tax in 2008. This debt has been satisfied through garnishment of his 2009 refund. Applicant enjoys a good reputation for his professionalism. In the Analysis portion of the Decision, the Judge noted Applicant’s medical problems, which were circumstances beyond his control. However, she also concluded that Applicant had not demonstrated a reasonable plan to pay off his debts and that he has elected not to pay his creditors, even for small debts, until resolution of the litigation resulting from his automobile accident. The Judge held the record open after the hearing in order to give Applicant an opportunity to present additional evidence of his efforts to contact his creditors, explain his circumstances, and advise them of his plans for repayment. Applicant submitted nine documents. Of these, only two concerned Applicant’s contacts with creditors. One was a letter by a lawyer, dated after the hearing, stating that he had contacted Applicant’s creditors and told them that they would be paid out of the damage award from the ongoing lawsuit. AE H, Letter from Lawyer, dated Apr. 16, 2010. The exhibit does not state when the lawyer contacted Applicant’s creditors. The other, AE L, is a letter from a physician, dated April 23, 2006, and addressed to Applicant’s landlord. This letter requests the landlord to permit Applicant to remain on the rented premises one month beyond the termination of the lease in order to facilitate recuperation from surgery. While Applicant has admitted his financial delinquencies, it was not clear that he understood his financial problems or how to resolve them. Aside from prevailing in the lawsuit, he has no plan in place to systematically resolve his substantial delinquent debt and prepare for future contingencies. Decision at 8. Applicant contends that the Judge erred in some of her findings of fact, for example her finding that he spends more each month than he makes in salary and that Workers’ Compensation paid for all of his medical treatment. On this latter point, he argues that he has medical expenses not covered by Workers’ Compensation. We have examined Applicant’s arguments in light of the record. The Judge’s finding about Applicant’s expenditures is based upon Applicant Exhibit (AE) G, his monthly budget. Based upon the figures represented in this document, the Judge’s finding is sustainable. Her finding about Applicant’s medical bills is limited to those resulting from his on-the- job back injury. AE A, Letter from Attorney, and Applicant’s own testimony at Tr. 27-28 support her finding that Workers’ Compensation paid these bills. After reviewing the record, we conclude that the Judge’s material findings of security concern are based upon substantial record evidence and are sustainable. See Directive ¶ E3.1.32.1. (Substantial evidence is “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.”). See also ISCR Case No. 08-07528 at 2 (App. Bd. Dec. 29, 2009). Applicant contends that his having admitted most of his debts and having provided information concerning them that would otherwise not have been discovered demonstrates his credibility. However, the record viewed as a whole provides no reason to believe that the Judge erred in evaluating Applicant’s credibility. Her material findings of security concern are based upon substantial record evidence and her ultimate conclusions constitute reasonable interpretations of the evidence. Indeed, Applicant admitted the legitimacy of most of the alleged debts and presented no reasonable plan for resolving them, beyond his hope for a substantial award of damages in his lawsuit. We find no basis to disturb the Judge’s evaluation of Applicant’s credibility. See Directive ¶ E3.1.32.1. 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,’” both as to the mitigating conditions and the whole-person factors. 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