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ISCR Case 10-01209.a1 — CASE

ISCR Case 10-01209.a1denied

Case Headnote

ISCR Case No. 10-01209.a1

Apr 28, 2011· Hon. Jean E. Smallin· appeal

Summary

An applicant, represented by counsel, was denied a security clearance under Guideline F (Financial Considerations) due to a significant history of unpaid debts. The applicant owed approximately $43,000, and the judge found that efforts to resolve these financial issues were insufficient. Specifically, the efforts were deemed reactive to the security clearance process rather than proactive, indicating a lack of consistent financial responsibility.

The judge applied Disqualifying Condition AG ¶ 19 and considered Mitigating Condition AG ¶ 20, but ultimately concluded that the applicant's financial problems were ongoing and not adequately mitigated. This led to the determination that the applicant did not meet the standards for a security clearance.

The appeal board affirmed the denial, concluding that the judge's decision was reasonable and consistent with national security interests. The board found no error in the judge's assessment that the applicant's financial history presented an unacceptable risk.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20rejectedFinancial ConsiderationsThe judge found that the applicant's efforts to resolve debts were insufficient and primarily reactive.

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 issuedJul 16, 2010
Answer filed—
Hearing heldFeb 8, 2011
Decision dateApr 28, 2011

Cite For

Insufficient Mitigating Evidence Regarding Financial Issues Under Guideline F
Ongoing Financial Problems as a Basis for Denial
The Standard for Granting Clearance Related to National Security Interests

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 brought by the applicant after the Administrative Judge denied her request for a security clearance based on financial considerations. The applicant argued that the Judge's decision was arbitrary and capricious, claiming that her financial issues were due to circumstances beyond her control and that she had made efforts to resolve her debts. The Board affirmed the Judge's decision, finding that the mitigating evidence was insufficient to overcome the government's security concerns.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRita C. O’Brien — 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 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 under Guideline F 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

Jean E. Smallin
James E. Moody
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: The Judge reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. Adverse decision affirmed. CASENO: 10-01209.a1 DATE: 04/28/2011 DATE: April 28, 2011 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-01209

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT James S. DelSordo, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On July 16, 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 February 8, 2011, after the hearing, Administrative Judge Rita C. O’Brien denied Applicant’s request for a security clearance. Applicant timely 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 contends that the Judge’s adverse decision should be reversed because the evidence presented at the hearing was sufficient to mitigate the government’s security concerns. In support of this contention she argues that her financial problems were the result of circumstances beyond her control and that she has resolved a number of her outstanding debts. Applicant’s argument does not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. 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. 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. 08-07753 at 2 (App. Bd. Feb. 25, 2011). In this case, the Judge found that Applicant had a lengthy history of not meeting financial obligations, including approximately $43,000 in unpaid debts for state and Federal tax liens, and credit card, medical and consumer debts. Decision at 3-6. Although Applicant had made some efforts to resolve her financial problems, the Judge noted that her past tax liens had been primarily paid through garnishments of her pay and seizure of her tax refunds, and that insofar as debt resolution was concerned, “[m]any of her steps were taken shortly before the hearing, indicating that she was responding more to the security process than to her legitimate obligations.” Id. at 9-10. At the time the case was submitted for decision, Applicant still had significant outstanding debts and was still trying to resolve her financial problems. In light of the foregoing, the Judge could reasonably conclude that those problems were still ongoing. See, e.g., ISCR Case No. 09-02646 at 3 (App. Bd. Mar. 8, 2011). The Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. She reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. 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 unfavorable security clearance decision under Guideline F is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board