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ISCR Case 16-01977.a1 — CASE

ISCR Case 16-01977.a1denied

Case Headnote

ISCR Case No. 16-01977.a1

Sep 27, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A pro se applicant with a law degree was denied a security clearance under Guideline F (Financial Considerations) due to significant delinquent debts exceeding $129,800. These debts included student loans and credit card balances. The applicant admitted to most of the allegations regarding her financial issues.

However, the applicant failed to provide sufficient evidence of responsible action to address these financial problems. The judge determined that the applicant's financial difficulties were likely to recur, raising concerns about her reliability and trustworthiness.

Consequently, the applicant's appeal was denied, upholding the initial decision to deny the security clearance.

Conditions Referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts

Key Rule Quoted

“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 issuedJul 11, 2016
Answer filed—Applicant requested a decision on the written record.
Hearing held—Decision made based on written record.
Decision dateSep 27, 2018Appeal affirmed.

Cite For

Financial Considerations Under Guideline F
Requirements for Demonstrating Responsible Action Regarding Debts
Due Process Considerations in Security Clearance Hearings

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 who was denied a security clearance due to financial considerations under Guideline F. The applicant argued that she was denied due process and that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPamela C. Benson — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Due-process / fairness — raised by the applicantRejected
Applicant argued that she was denied due process.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge did not err in denying the security clearance, as the Applicant failed to demonstrate that her financial issues were resolved or unlikely to recur, and the Judge's decision was supported by substantial evidence.

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 Ra’anan — Chair
James E. Moody
James F. Duffy

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: If Applicant believed that there was nevertheless going to be some sort of hearing, it was not due to the nature or quality of the guidance that she received from DOHA. Adverse decision affirmed. CASENO: 16-01977.a1 DATE: 09/27/2018 DATE: September 27, 2018 In Re: ----------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-01977

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On July 11, 2016, 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 July 2, 2018, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Pamela C. Benson 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 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 earned a bachelor’s degree in 2000 and a law degree in 2003. She divorced in 2012 and has an adult offspring. Since early 2011, she has been laid off from employment, forced to resign, and voluntarily left a job. She has been working with a Federal contractor since 2017 and held a clearance from 2007 until 2013. Applicant has numerous delinquent debts, including student loans, medical accounts, utility bills, credit cards, a second mortgage, etc. The SOR also alleges a home foreclosure. They total over $129,800. She attributed her financial problems to her marital difficulties, her husband’s lack of work, her own unemployment, and relocation expenses. Applicant admitted all of the SOR allegations but one, and the Judge found that the record established the debts as well. She has not provided corroborating evidence that she had made payments pursuant to an agreement regarding her student loans. She disputed some of her debts, and she submitted payment receipts, all of which post-date Applicant’s receipt of the File of Relevant Material (FORM). Although the Judge found that some of Applicant’s debts have been resolved, she stated that the unresolved ones exceed $100,000. The Judge’s Analysis

The Judge stated that Applicant had not established that her financial problems are unlikely to recur or no longer cast doubt upon her current reliability. Although Applicant’s problems may have been affected by circumstances outside her control, the Judge concluded that Applicant had not demonstrated responsible action in regard to them. The Judge stated that Applicant did not provide documentation to show that the second mortgage had been resolved. Although Applicant claimed that several debts were removed from her credit report following disputes, she elsewhere admitted that many of her disputed accounts were her own.

DISCUSSION

Applicant states that in her Response to the FORM that she requested “to attend the adjudication[.]” Appeal Brief at 6. As a consequence, she argues that she was precluded from clearing up confusion regarding her student loan debts. We note that the Response contains the following language: “I am available to come in for testimony if needed, as I currently reside in the DC area.” It also states “I appreciate the opportunity to respond prior to the adjudicative hearing.” We conclude that this language does not establish a request to convert the case to a hearing but, at best, a willingness to testify if needed at a purported upcoming hearing of some kind. Department Counsel did not request a hearing, and Applicant herself elected a decision on the written record after having received DOHA guidance regarding her right to choice of forum. If Applicant believed that there was nevertheless going to be some sort of hearing, it was not due to the nature or quality of the guidance that she received from DOHA. Indeed, she completed an attachment to her SOR Answer, checking a block that requested a “decision based on the administrative (written) record, without a hearing before an Administrative Judge.” A forum request must be sufficiently clear so that DOHA personnel are on notice as to the party’s desires.1 See, e.g., ISCR Case No. 12-10335 at 4 (App. Bd. Dec. 29, 2017). In this case, Applicant clearly and unambiguously chose a decision on the written record and was not denied an opportunity to choose a hearing. She was not denied due process. Applicant argues that the Judge erred in concluding that her second mortgage had not been resolved. She argues that this debt was satisfied through the foreclosure process. Her argument is not clearly born out by the record. However, even if a debt has been paid or resolved through a legal process such as a foreclosure proceeding, a Judge may still consider the applicant’s underlying circumstances in evaluating his or her eligibility for access to classified information. See, e.g., ISCR Case No. 16-02246 at 2 (App. Bd. Dec. 8, 2017). Applicant’s arguments on appeal are, in effect, a disagreement with the Judge’s weighing of the evidence, which is not enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 17-01181 at 4 (App. Bd. Apr. 30, 2018). 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, Encl. 2, App. A ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board

FOOTNOTES

1 To be entitled to a hearing, a party must request one. See Directive ¶ E3.1.7 that states, in pertinent part, “If the applicant has not requested a hearing with his or her answer to the SOR and Department Counsel has not requested a hearing within 20 days of receipt of the applicant’s answer, the case shall be assigned to the Administrative Judge for a clearance decision based on the written record.”