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ISCR Case 10-03020.a1 — CASE

ISCR Case 10-03020.a1denied

Case Headnote

ISCR Case No. 10-03020.a1

Jun 2, 2011· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, represented by counsel, was denied a security clearance under Guideline F (Financial Considerations) due to unresolved financial issues. Despite holding full-time employment with a substantial income, the applicant had delinquent debts that he chose not to pay.

The judge identified Disqualifying Condition F.3, noting the applicant's failure to meet financial obligations. While Mitigating Conditions F.2 and F.3 were considered, they were ultimately not applied. The judge determined that the applicant had sufficient income to resolve his debts but opted not to, and that the financial issues were not mitigated, even considering their non-recent nature.

Consequently, the security clearance request was denied.

Conditions Referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts

Mitigating

F.2rejectedThe Conditions That Resulted in the Financial Problems Were Largely Beyond the Person's ControlThe judge noted that the applicant's financial problems did not continue due to lack of financial ability.
F.3notedThe Person Has Received or Is Receiving Counseling for the Problem

Key Rule Quoted

“A security clearance adjudication is designed to evaluate an applicant’s judgment, reliability and trustworthiness so that a sound decision is rendered.”

Procedural Posture

SOR issuedAug 17, 2010
Answer filed—
Hearing heldMar 23, 2011
Decision dateJun 2, 2011

Cite For

Evaluation of Financial Considerations Under Guideline F
Burden of Proof Shifts to Applicant to Mitigate Security Concerns
Persuasive Authority of Prior Hearing Office Decisions Is Not Binding Precedent

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 who was denied due to financial considerations under Guideline F. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding that the applicant did not mitigate the security concerns raised against him.

Appealed bythe applicant

Applicant representationAttorney

Judge belowDarlene D. 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 was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge reasonably explained her conclusion that Applicant had not mitigated the security concerns in his case, and the decision was not arbitrary, capricious, or contrary to law.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
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: Hearing Office decisions in other cases may be cited as persuasive authority, but they are not binding legal precedent. The Judge reasonably explained her conclusion that Applicant had not mitigated the security concerns in his case. Adverse decision affirmed. CASE NO: 10-03020.a1 DATE: 06/02/2011 DATE: June 2, 2011 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-03020

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Alan V. Edmunds, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 17, 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 March 23, 2011, after the hearing, Administrative Judge Darlene D. 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 should be reversed because his financial problems are not recent, they were due to circumstances beyond his control, and the statute of limitations has run on all his outstanding debts. His argument does not demonstrate 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 mitigate those concerns. 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, 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. 10-00278 at 2 (App. Bd. Mar. 18, 2011). In support of his appeal, Applicant cites to other Hearing Office decisions which he believes are similar to his case and in which the Judge granted the applicant a clearance. While Hearing Office decisions in other cases may be cited as persuasive authority, those cases are not binding legal precedent which a Hearing Office Judge must follow in another situation. Applicant’s reliance on other Hearing Office decisions does not demonstrate that the Judge erred in this case. See, e.g., ISCR Case No. 09-08417 at 2 (App. Bd. Apr. 4, 2011). In reaching her adverse decision, the Judge noted that while Applicant’s financial problems may have started as a result of a job lay-off, they did not continue due to lack of financial ability. “Since 2008, the Applicant has been employed full time and has been earning well over six figures annually. Based upon his testimony, he has sufficient monies left over after his monthly expenses that he could use to pay his delinquent debts if he wanted to. Instead he chose not to pay them.” Decision at 6. In light of the foregoing, the Judge’s conclusion that Applicant had not mitigated the Government’s security concerns is not arbitrary, capricious or contrary to law. See, e.g., ISCR Case No. 02-32606 at 3-5 (App. Bd. Jan. 21, 2004). Applicant’s argument regarding his research of debt collection law is not persuasive. DOHA proceedings are not aimed at collecting an applicant’s debts. A security clearance adjudication is designed to evaluate an applicant’s judgment, reliability and trustworthiness so that a sound decision is rendered. See, e.g., ISCR Case No. 09-02160 at 5 (App. Bd. Jun. 21, 2010). 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 her 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, 158 (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). Accordingly, 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 Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board