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ISCR Case 14-03991.a1 — CASE

ISCR Case 14-03991.a1denied

Case Headnote

ISCR Case No. 14-03991.a1

Jul 17, 2015· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant representing himself was denied a security clearance under Guideline F (Financial Considerations) due to unresolved financial issues. The appeal board upheld this denial, finding that the applicant failed to demonstrate the Judge's initial decision was arbitrary or capricious.

The board emphasized that the presence of unmitigated, unresolved debts raised significant security concerns. The applicant's arguments regarding the statute of limitations on some debts or his attempts to settle others did not sufficiently mitigate these concerns.

Ultimately, the Judge's decision to deny the clearance was deemed consistent with national security interests, leading to the final denial of the applicant's security clearance.

Conditions Referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts

Key Rule Quoted

“A security clearance adjudication is not a proceeding aimed at collecting an applicant’s personal debts.”

Procedural Posture

SOR issuedOct 11, 2014
Answer filed—
Hearing heldApr 29, 2015
Decision dateJul 17, 2015

Cite For

Evaluation of Financial Considerations Under Guideline F
Impact of Unresolved Debts on Security Clearance Decisions
Limitations of the Statute of Limitations in Security Clearance Adjudications

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 Administrative Judge denied his request for a security clearance based on financial considerations. The applicant argued that the Judge's decision was arbitrary and that he was not questioned sufficiently about his debt settlement efforts. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMichael H. Leonard — 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 contends that the Judge’s adverse decision is arbitrary, capricious or contrary to law.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argues that the Judge did not question him extensively enough about his attempts to settle his debts.

Why the Board ruled this way

The Board found no error in the Judge's treatment of the statute of limitations and concluded that the Judge's decision was sustainable based on the evidence presented.

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
Jean E. Smallin
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: The hearing was the Applicant’s opportunity to produce evidence to rebutt, explain, or mitigate facts proven by Department Counsel. The Judge then had to consider all the evidence in the case. Any attempt on the part of the Judge to investigate allegations would conflict with the Judge’s role as an impartial fact finder. The Judge advised Applicant of the obligations and limitations of their respective roles. CASENO: 14-03991.a1 DATE: 07/17/2015 DATE: July 17, 2015 In Re: ---------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-03991

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 October 11, 2014, 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 April 29, 2015, after the hearing, Defense Office of Hearings and Appeals Administrative Judge Michael H. Leonard denied Applicant’s request for a security clearance. Applicant timely 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 contends that the Judge’s adverse decision should be reversed because: 1) the statue of limitations had expired on his debts and they were uncollectible, and 2) the Judge did not question him extensively enough about his attempts to settle his debts with the collection agencies. As part of his presentation, Applicant makes statements about his efforts to settle his debts. The Board cannot consider new evidence on appeal. See Directive ¶ E3.1.29. “[T]here is a strong presumption against granting a security clearance.” Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied 499 U.S. 905 (1991). 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 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. An applicant’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. 08-03771 at 2 (App. Bd. Feb. 18, 2009). Security clearance decisions are not controlled or limited by statutes of limitation. A security clearance adjudication is not a proceeding aimed at collecting an applicant’s personal debts. Rather, it is a proceeding aimed at evaluating an applicant’s judgment, reliability, and trustworthiness. Accordingly, even if a delinquent debt is legally unenforceable under state law, the federal government is entitled to consider the facts and circumstances surrounding an applicant’s conduct in incurring and failing to satisfy the debt in a timely manner. See, e.g., ISCR Case No. 07-09966 at 3 (App. Bd. Jun. 25, 2008). The Board finds no error with respect to the Judge’s treatment of the statute of limitations. The hearing was the Applicant’s opportunity to produce other evidence beyond that developed by his background investigation for the purpose of rebutting, explaining, extenuating, or mitigating facts to which he has admitted or which have been proven by Department Counsel. See, e.g., Directive ¶ E3.1.15. The Judge was then duty bound to consider all of the evidence developed on the record of the case before him. Any attempt on the part of the judge to investigate independently allegations or develop facts would, of course, conflict with the judge’s role as an impartial fact finder. See, e.g., ISCR Case No. 06-09462 at 2 (App. Bd. Jul. 19, 2007). In this case the Judge specifically advised Applicant of the obligations and limitations of their respective roles. Tr. at 17. Furthermore, Department Counsel asked Applicant “. . . if you knew that the statute of limitations is not a defense in these hearings, what would you do?” Applicant responded: “There’s not much I can do, you know.” Tr. at 47. Accordingly, the Board finds no error as to the Judge’s questioning of the Applicant. The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for his decision. “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 under is sustainable.

ORDER

The decision of the Judge is AFFIRMED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed; Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed; William S. Fields William S. Fields Administrative Judge Member, Appeal Board