CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 11-00982.a1 — CASE

ISCR Case 11-00982.a1denied

Case Headnote

ISCR Case No. 11-00982.a1

Jun 12, 2012· Hon. Jean E. Smallin· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline F (Financial Considerations). The Appeal Board affirmed the denial, concluding that the applicant failed to meet the burden of establishing mitigation of security concerns, even with new evidence presented on appeal.

The denial stemmed from the presence of disqualifying condition F.1, which the applicant attempted to mitigate under condition F.2. However, the applicant did not demonstrate that the Judge's initial decision was arbitrary, capricious, or contrary to law.

Ultimately, the applicant failed to establish sufficient mitigating evidence to overcome the government's security concerns regarding his financial history, leading to the affirmed denial of his security clearance.

Conditions Referenced

Disqualifying

F.1raisedFinancial Considerations

Mitigating

F.2rejectedMitigating ConditionsThe Judge reasonably explained why there was insufficient mitigating evidence to overcome the government's security concerns.

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 issuedSep 30, 2011
Answer filed—Applicant requested a decision based on the written record.
Hearing heldMar 29, 2012
Decision dateJun 12, 2012

Cite For

Affirmation of Denial Based on Financial Considerations Under Guideline F
Burden of Establishing Mitigation Rests with the Applicant
New Evidence Cannot Be Considered on Appeal

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 based on financial considerations under Guideline F. The applicant argued that the Judge's decision was arbitrary and failed to consider certain mitigating factors. The Board affirmed the Judge's decision, finding no harmful error in the weighing of evidence and noting that new evidence submitted on appeal could not be considered.

Appealed bythe applicant

Applicant representationPro se (self-represented)

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

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for the denial of the security clearance, including a rational connection between the facts and the decision made.

Standard of review applied

No de-novo re-decisionNo new evidence on appealSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural compliance

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: Applicant’s disagreement with the Judge’s weighing of the evidence was not sufficient to demonstrate error. The Appeal Board cannot consider new evidence on appeal. Adverse decision affirmed. CASE NO: 11-00982.a1 DATE: 06/12/2012 DATE: June 12, 2012 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-00982

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 September 30, 2011, 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 the case be decided on the written record. On March 29, 2012, after considering the record, Administrative Judge Arthur E. Marshall, Jr. 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. In this case, Applicant elected to have a decision based on the written record, and then filed a limited response to the government’s file of relevant material (FORM). On appeal, he seeks reversal of the Judge’s adverse decision arguing that “the [J]udge makes no mention of the historic real estate market crash,” and that the Judge’s whole-person analysis failed to consider the totality of Applicant’s circumstances including his accomplishments and character. In support of his argument, he submits an extensive amount of new evidence, including a detailed statement addressing the allegations in the SOR and multiple documentary exhibits, such as e-mail communications, short sale forms, tax forms, leases, financial data, evidence of home improvements, and articles on the housing market. The Board cannot consider this new evidence on appeal. See Directive ¶ E3.1.29. Applicant’s presentation 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 establish mitigation. 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 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. 09-04601 at 2 (App. Bd. May 11, 2011). In his decision, the Judge weighed the available evidence, evaluated the seriousness of the disqualifying circumstances, and considered the possible application of relevant conditions and factors. He specifically discussed the decline in the housing market and the favorable whole-person evidence present in the record, but reasonably explained why there was insufficient mitigating evidence to overcome the government’s security concerns. Decision at 2-6. 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 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 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