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ISCR Case 12-07751.a1 — CASE

ISCR Case 12-07751.a1denied

Case Headnote

ISCR Case No. 12-07751.a1

Apr 7, 2015· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance applicant, representing himself, was denied under Guideline F (Financial Considerations) due to ongoing and unresolved financial issues. Despite a good reputation for honesty, the applicant's financial problems were deemed insufficiently addressed.

The denial was based on the applicant's failure to provide sufficient evidence of efforts to resolve his debts, which were characterized as ongoing. The judges found no bias or due process violations in the proceedings, dismissing the applicant's claims as unsubstantiated.

Ultimately, the applicant's inability to demonstrate adequate resolution of his financial obligations led to the denial of his security clearance.

Conditions Referenced

Disqualifying

F.1raisedInability to Satisfy Debts

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 issuedApr 25, 2014
Answer filed—
Hearing heldJan 15, 2015
Decision dateApr 7, 2015

Cite For

Ongoing Financial Issues Under Guideline F
Unsubstantiated Claims of Bias and Due Process Violations
Importance of National Security in Clearance Determinations

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 filed by the applicant after the denial of his security clearance based on financial considerations under Guideline F. The applicant raised issues of bias, due process violations, and arbitrary decision-making. The Board affirmed the Administrative Judge's decision, finding no merit in the applicant's claims.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJohn Grattan Metz, Jr. — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge bias or partiality — raised by the applicantRejected
Applicant contended that the Judge was biased against him.
Due-process / fairness — raised by the applicantRejected
Applicant argued that he was denied his due process rights.
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.

Why the Board ruled this way

The Board found no evidence of bias, due process violations, or arbitrary decision-making by the Judge. The Judge's findings were supported by substantial evidence and articulated a satisfactory explanation for the adverse decision.

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

Michael 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: A Judge is under no obligation to hold the record open after a hearing especially if neither party requests it. Adverse decision affirmed. CASENO: 12-07751.a1 DATE: 04/07/2015 DATE: April 7, 2015 In Re: --------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-07751

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 April 25, 2014, 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 hearing. On January 15, 2015, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge John Grattan Metz, Jr., 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 the Judge was biased against Applicant; whether Applicant was denied his due process rights; 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 Applicant has been employed by a Defense contractor since 2007. He was employed by a different contractor from 1999 to 2007. In 2008, Applicant was the subject of a DOHA security clearance hearing based upon Guideline F considerations. After that hearing, the Judge granted Applicant a clearance, having found that he had paid or otherwise resolved the SOR debts. At that hearing, Applicant attributed his financial problems to a divorce and to unforeseen medical expenses. “The record is unclear whether any of the debts alleged in the current SOR were adjudicated at the 2008 hearing.” Decision at 2. After receiving the SOR regarding his current application, Applicant sent ten letters to creditors. These letters admitted that Applicant owed the creditors money, though he disputed the amounts. They contained offers to settle the debts for less, unspecified amounts. Applicant did not corroborate statements in these letters that he had attempted previous communications with the creditors. The Judge noted that Applicant did not propose actual settlement amounts. This course of action produced little response. Applicant enjoys a good reputation for honesty and trustworthiness. He has received no financial or credit counseling. He has over $2,000 in positive monthly cash flow. He promises to pay his debts, but he acknowledges that he has made such a promise before. The Judge’s Analysis The Judge characterized Applicant’s financial problems as “recent, not infrequent, and ongoing.” Id. at 4. He stated that Applicant had provided no insight as to why his difficulties persisted long after his earlier adjudication. He noted that Applicant’s efforts at resolving his debts were undertaken after he received Government interrogatories. He stated that more than half the SOR debts have simply aged off the credit reports. The Judge took note of Applicant’s monthly income, which he concluded was enough to permit meaningful debt resolution, though Applicant’s financial statement reflects no payments to any of his creditors.

DISCUSSION

Applicant contends that the Judge was biased against him, citing to portions of the transcript which, he believes, show that the adverse result of his case was a foregone conclusion. A Judge is presumed to be impartial. A party who alleges that a Judge is biased has “a heavy burden of persuasion” on appeal. See, e.g., ISCR Case No. 11-01618 at 3 (App. Bd. Jan. 24, 2013). We have examined the entirety of the transcript, along with the other record evidence and the Decision. We find therein nothing that would persuade a reasonable person that the Judge lacked the requisite impartiality. Applicant argues that he was denied due process. He states that he found out after the hearing that Judges can leave the record open for the presentation of additional evidence. He notes that the Judge did not advise him of this possibility. He also implies that his presentation of his case would have been better if he had been represented by counsel. A Judge has the inherent discretion to hold the record open after a hearing for the submission of other evidence. However, a Judge is not under an obligation to do so, especially when neither party requests it. See, e.g., ISCR Case No. 08-09808 at 3 (App. Bd. Sep. 21, 2009). In this case, Applicant said nothing during the hearing that would have led the Judge to believe that he had additional evidence to present. Neither did his Appeal Brief identify any such evidence. Regarding Applicant’s self-representation, prior to the hearing, and again at the beginning, Applicant was advised of his right to employ counsel or a personal representative. The Judge questioned him about his ability to represent himself, and Applicant’s answers and subsequent conduct of his case show that he was qualified to act pro se. Applicant was not denied the due process afforded by the Directive. Applicant contends that it seems inconsistent to take his clearance but give him a chance at restoring it in a year’s time. In doing so, he cites to matters from outside the record, which we cannot consider. Directive ¶ E3.1.29. Applicant’s argument addresses policies set forth in Directive ¶ E3.1.37 et seq. concerning an unsuccessful applicant’s right to reapply after a year from the initial unfavorable decision. We have no authority to rule on the wisdom of the provisions of the Directive. See, e.g., ISCR Case No. 10-00925 at 3 (App. Bd. Jun. 26, 2012). In any event, the availability of a reapplication process does not call into question the Judge’s adverse findings and conclusions in Applicant’s case. 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. Signed: Michael Ra’anan Michael 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