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ISCR Case 11-11221.a1 — CASE

ISCR Case 11-11221.a1denied

Case Headnote

ISCR Case No. 11-11221.a1

Aug 19, 2013· Hon. Jeffrey D. Billett· appeal

Summary

A defense contractor, holding a top secret clearance since 2004, was denied continued security clearance due to significant financial considerations under Guideline F. The applicant had substantial delinquent debts, including credit card balances, mortgages, medical expenses, and unpaid taxes, which raised security concerns.

While the applicant presented some mitigating factors, specifically F2 and F3, the judge ultimately found them insufficient. The applicant failed to provide corroborating evidence to support claims of debt repayment and overall financial stability. Furthermore, a personal financial statement was not submitted, nor was any evidence of financial counseling provided.

The presence of disqualifying condition F3, coupled with the lack of sufficient evidence to mitigate the financial concerns, led to the denial of the applicant's security clearance.

Conditions Referenced

Disqualifying

F3raisedInability or Unwillingness to Satisfy Debts

Mitigating

F2rejectedThe Conditions That Resulted in the Financial Problems Were Largely Beyond the Person's ControlThe judge found insufficient evidence to support the claim that the applicant's wife's unemployment was beyond his control.
F3rejectedThe Person Has Received or Is Receiving Counseling for the Financial ProblemThe applicant provided no evidence of financial counseling.

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 issuedDec 14, 2012
Answer filed—Applicant requested a decision on the written record.
Hearing heldJun 6, 2013Decision made by Administrative Judge David M. White.
Decision dateAug 19, 2013Appeal decision affirmed.

Cite For

Failure to Mitigate Financial Concerns Under Guideline F
Insufficient Evidence of Financial Stability and Responsible Action Regarding Debts
Due Process Considerations in the Submission of Evidence for 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 raised issues regarding due process, factual findings, and the Judge's decision being arbitrary. The Board affirmed the Judge's decision, finding no harmful errors.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDavid M. White — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Due-process / fairness — raised by the applicantRejected
Applicant contended that he was denied due process.
Erroneous finding of fact — raised by the applicantRejected
Applicant argued that the Judge's findings of fact contained errors.
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.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Applicant was adequately advised of his right to submit evidence and that the Judge's findings were based on substantial evidence. The typographical error in the SOR was deemed harmless, and the Judge's decision was not arbitrary or capricious.

Standard of review applied

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

Appeal Board panel

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
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 adequately advised by DOHA regarding his right to submit evidence in his own behalf. The Judge’s order did not constitute an attempt improperly to limit what evidence Applicant could submit. A typographical error in citing to a SOR paragraph was harmless. Adverse decision affirmed. CASE NO: 11-11221.a1 DATE: 08/19/2013 DATE: August 19, 2013 In Re: ---------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-11221

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On December 14, 2012, DoD 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 decision on the written record. On June 6, 2013, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge David M. White 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 Applicant was denied due process; whether the Judge’s findings of fact contained errors; and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact The Judge found that Applicant has worked for a Defense contractor since 2003 and has held a top secret clearance since 2004. Applicant has significant delinquent debt, arising from a credit card, first and second mortgages on his home, medical expenses, and unpaid taxes due the IRS. The Judge noted that Applicant had not paid the credit card debt, which was beyond the statute of limitations at the close of the record. He found that Applicant had modified the first mortgage on his home but had provided no corroboration of his claim to be attempting to renegotiate the second mortgage. Applicant submitted a document purporting to show that he had settled the medical debt by paying 50% of its value, charging it to a credit card. The Judge found this evidence to be “unclear and contradictory.” Decision at 4. The Judge also found that Applicant’s claim to have paid the $7,000 tax debt down to $181 was not corroborated. The Judge noted evidence that Applicant owed tax to his state as well.1 Applicant’s financial problems “stemmed from his wife’s undefined period of unemployment, their growing family, and a lack of sufficient funds to pay their obligations.” Id. Applicant did not submit a personal financial statement or evidence of savings. Applicant did not provide evidence of financial counseling, except that he had hired a law firm that had begun settling over $74,000 in unsecured debt in 2011. Applicant provided no evidence about the quality of his professional performance, his track record with handling sensitive information, or his compliance with security procedures. The Judge’s Analysis The Judge concluded that Applicant’s circumstances raised security concerns under Guideline F. He also concluded that Applicant had failed to mitigate those concerns. He stated that the ongoing nature of Applicant’s debt problems preclude a finding that they are not likely to recur. He also stated that Applicant had failed to show that his reliability, trustworthiness, and judgment had improved. He also stated that the record was not clear as to the extent to which Applicant’s wife’s unemployment arose from circumstances beyond his control. Moreover, evidence that Applicant had hired the law firm was not sufficient to demonstrate responsible action in regard to his debts. The Judge cited to his finding that Applicant had not presented evidence of financial counseling or that his financial problems had stabilized. He also noted a lack of corroboration for Applicant’s claims to have paid off his tax debt and that the record evidenced no basis to dispute the legitimacy of any of the debts alleged in the SOR. In the whole-person analysis, the Judge concluded that Applicant’s financial circumstances entailed a potential for pressure, coercion, and duress.

DISCUSSION

Applicant contends that he was not aware of the extent of his right to submit evidence. He states that he did not know that he could submit character references and that he “was unaware of providing additional evidence to rebut, extenuate, or mitigate” the concerns raised by the SOR. Appeal Brief at 3. He states that he did not know that he was to submit evidence documenting his claims about debt repayment, his wife’s job loss, etc. Because Applicant requested a decision on the written record, Department Counsel prepared a File of Relevant Material (FORM), providing a copy to Applicant before submitting it to the Judge. Department Counsel advised Applicant that he had 30 days from receipt of the FORM to submit documents “setting forth objections, rebuttal, extenuation, mitigation, or explanation, as appropriate.” (emphasis added) Applicant’s copy of the FORM was accompanied by a letter from a DOHA paralegal. This letter also advised Applicant of his right to submit objections “or any additional information you wish to be considered.” DOHA Letter, dated February 19, 2013. The paralegal enclosed a copy of the Directive, which explains an applicant’s rights in detail, and she advised Applicant how he could access the Directive on line. Applicant did not respond to the FORM within the 30 days allotted. When the case was presented to him for a decision, the Judge noted that Applicant had not responded to the FORM. He also noted that, in his reply to the SOR, Applicant had referenced an “original submission of documentation at initial review.” Findings and Order, dated May 13, 2013. The Judge stated that it was not clear if Applicant understood that only the material attached to the FORM would be submitted to him and that Applicant was responsible for submitting any additional evidence that he wanted the Judge to consider. The Judge gave Applicant a week to submit the documentation that he had presented “at initial review.”2 Subsequently, Applicant submitted several documents, constituting 12 pages, which were incorporated into the record. Applicant Exhibit (AE) A (1-3). Under the circumstances, the record shows that Applicant was adequately advised of his right to submit evidence on his own behalf. While the various communications from DOHA personnel did not specifically mention character references, these communications were sufficient to have placed a reasonable person on notice as to the general extent of an applicant’s right to present evidence. See, e.g., ISCR Case No. 09-08083 at 3 (App. Bd. Jul. 15, 2011). Presenting evidence in mitigation is an applicant’s responsibility. In doing so, he or she has a right to be represented by counsel or by some other person, and Applicant was advised of this right as well. In ruling on evidence, a Judge is bound by the admissibility rules specified by the Directive. See, e.g., Directive ¶ E3.1.20. Otherwise, DOHA is not authorized to limit an applicant’s discretion as to what information, if any, he or she should in good faith submit, and none of the communications from DOHA to Applicant, including the Judge’s Order, could reasonably be interpreted as doing so. Applicant was not denied the due process afforded by the Directive. Applicant contends that he cannot be sure that all of the documentation that he e-mailed the Judge made it into the record. However, AE A, his e-mail submission of May 23, 2013, lists several documents, all of which appear in the record as attachments. The e-mail does not reference any document that is not attached. There is no reason to believe that Applicant submitted anything that was not included in the record. Applicant has challenged the sufficiency or completeness of Judge’s findings. One of the challenges is to the Judge’s reference to a SOR ¶ 1(f). Applicant notes that the SOR contains allegations (a) through (e) only. Reading the Decision as a whole, we conclude that the challenged reference is a typographical error by the Judge. Otherwise, the Judge’s material findings of security concern are based on substantial record evidence or constitute reasonable characterizations or inferences that could be drawn from the evidence. The Judge’s material findings of security concern are sustainable. See, e.g., ISCR Case No. 11-06659 at 5 (App. Bd. Oct. 22, 2012). In support of his appeal, Applicant has included a document not contained in the record. We cannot consider new evidence on appeal. Directive ¶ E3.1.29. See ISCR Case No. 12-01038 at 1 (App. Bd. Mar. 22, 2013). The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The 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). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”

ORDER

The Decision is AFFIRMED.

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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board

FOOTNOTES

1 The state tax debt was not alleged in the SOR.

2 In his Appeal Brief, Applicant states that he thought that he was only to “provide documentation requested in the SOR and Judge’s White’s Order[.]”