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ISCR 11-14425: Guideline E security clearance appeal, denied (2013) · CASE

ISCR Case 11-14425denied

Case headnote

ISCR Case No. 11-14425

Sep 11, 2013· Hon. Jeffrey D. Billett· appeal

Summary

A 51-year-old former real estate investor was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The applicant's financial problems were a primary concern, raising questions about her judgment and responsibility.

Specifically, the applicant's financial issues were deemed disqualifying under AG ¶ 20(a), though mitigating conditions under AG ¶ 20(c) were considered. Additionally, the applicant provided false information on her security clearance application, which was a disqualifying condition under AG ¶ 15(a), with mitigating conditions under AG ¶ 15(b) also noted.

The judge determined that the applicant's financial difficulties, coupled with her lack of candor with the government, demonstrated poor judgment and inadequate responses to her financial situation. These factors collectively led to the denial of her security clearance.

Conditions referenced

Disqualifying

AG ¶ 20(a)raisedFinancial Considerations
AG ¶ 15(a)raisedPersonal Conduct

Mitigating

AG ¶ 20(c)rejectedFinancial ConsiderationsThe judge concluded that the mitigating conditions were not applicable due to the applicant's poor judgment.
AG ¶ 15(b)rejectedPersonal ConductThe judge found the applicant had not been forthright with the government.

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 issuedNov 13, 2012
Answer filed—
Hearing heldJun 26, 2013
Decision dateSep 11, 2013

Cite for

Security Concerns Raised Under Guideline F Due to Financial Issues
False Information Provided in Security Clearance Applications
Impact of Poor Judgment on Security Clearance Decisions

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 and personal conduct. The applicant argued that the decision was arbitrary and capricious. The Board affirmed the decision, finding no harmful error in the Judge's analysis and conclusions.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRita C. O’Brien denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argued that the adverse 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 that the Judge did not act arbitrarily or capriciously in denying the security clearance.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan (Chair)
Jean E. Smallin
Jeffrey D. Billett

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

1 The Judge made three favorable formal findings under Guideline F. Those findings are not at issue. KEYWORD: Guideline F; Guideline E DIGEST: An ability to argue for an alternative interpretation of the evidence is not sufficient to demonstrate error by the Judge. Other Hearing Office cases are not binding either on the Hearing Office or on the Appeal Board. Adverse decision affirmed. CASE NO: 11-14425 DATE: 09/11/2013 DATE: September 11, 2013 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-14425

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Corey R. Williams, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On November 13, 2012, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On June 26, 2013, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Rita C. O’Brien denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30.1 Applicant raised the following issue on appeal: whether the adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant is 51 years old. In 2007 Applicant decided to become a real estate investor. She purchased several properties and assumed more than $1,000,000 in mortgage loans. The real estate market suffered a sharp decline. Two properties were subject to foreclosure proceedings. Applicant no longer owns any real estate and is not presently working. Applicant has had serious medical problems since December 2009. The record does not contain information regarding the amount of her medical bills or how they affected her finances. In 2010 Applicant prepared a security clearance application which did not accurately reflect her financial situation. She has since given conflicting explanations for the false answers on the application. The Judge’s Analysis The Judge concluded that Applicant’s financial problems raised security concerns under Guideline F. The Judge concluded that two mitigating conditions were partly applicable to Applicant’s overall financial situation. The Judge’s application of the mitigating conditions was limited by Applicant’s initial poor judgment and her inadequate responses to the situation as it developed. The Judge also concluded that Applicant had not been forthright with the government. Although the Judge discussed two mitigating conditions, she ultimately concluded that they were not applicable.

DISCUSSION

Applicant asserts that the Judge should have ruled in Applicant’s favor through application of several Guideline F and Guideline E mitigating conditions and the whole person analysis. Applicant cites to favorable record evidence including: Applicant’s work history, the history of the real estate market since 2007, Applicant’s attempts at loan modifications and her work with attorneys. A Judge is presumed to have considered all of the evidence in the record. See, e.g., ISCR Case No. 10-11083 at 2 (App. Bd. Dec. 17, 2012). In the case currently under consideration, the Judge made detailed findings about Applicant’s circumstances, including many of the items raised in the appeal brief. Her adverse decision was based upon Applicant’s poor judgment both prior to and after the real estate market decline. Applicant has not rebutted the presumption that the Judge considered all of the evidence. Neither does her argument demonstrate that the Judge mis-weighed the evidence. Applicant’s arguments also constitute an alternative interpretation of the evidence. Such an interpretation is not sufficient to demonstrate error. See, e.g., ISCR Case No. 11-08507 at 4 (App. Bd. Jun. 7, 2013). Applicant also cites to Hearing Office cases as persuasive authority. The Board gives such cases due consideration. However they are not binding on other Hearing Office Judges or on the Appeal Board. See, e.g., ISCR Case No. 11-07810 at 2 (App. Bd. Aug 5, 2013). The record supports a conclusion 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 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). 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. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board