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ISCR Case 18-01601.a1 — CASE

ISCR Case 18-01601.a1unknown

Case Headnote

ISCR Case No. 18-01601.a1

Apr 25, 2019· Hon. Michael Y. Ra'anan· appeal

Summary

This case involved a 44-year-old applicant, a father of one, whose security clearance was challenged under Guideline F (Financial Considerations). The primary concerns stemmed from multiple tax liens and foreclosures.

The Administrative Judge's initial decision contained substantial errors regarding these financial issues. Specifically, the appeal board identified inaccuracies in the findings related to both the tax liens and the foreclosures.

Due to these significant errors, the appeal board remanded the case for further adjudication. The outcome of the security clearance decision was "None," as the case was sent back to correct the identified inaccuracies and ensure a fair process.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Key Rule Quoted

“Public confidence in the fairness and integrity of the industrial security program depends, to a large degree, on there being both the substance and the appearance of a fair and impartial adjudication after reasonable consideration of the record evidence as a whole.”
— ISCR Case No. 02-23979 at 4 (App. Bd. Aug. 25, 2004)

Procedural Posture

SOR issuedJun 3, 2018
Answer filed—
Hearing held—
Decision dateApr 25, 2019

Cite For

Remand Due to Substantial Errors in Findings of Fact Under Guideline F
Importance of Fair Adjudication in Security Clearance Cases
Inaccuracies in Financial Assessments Affecting Clearance Eligibility

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

Remanded

The appeal involved an applicant whose security clearance was denied based on financial considerations under Guideline F. The applicant argued that the Judge's decision was arbitrary and capricious due to several substantial errors. The Board agreed and remanded the case for correction of these errors.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRoger C. Wesley — denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantError sustained
The Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found substantial errors in the Judge's decision that raised concerns about the fairness and integrity of the adjudication process. The errors included incorrect findings regarding the amounts of foreclosures and misstatements about the applicant's military service.

Ignored material evidenceNo rational connection between facts and conclusion

On remand, the judge must

The Judge must correct the errors and issue another decision consistent with the Directive.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealReduced credibility deference (written record)

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: The Board has noted that: “Public confidence in the fairness and integrity of the industrial security program depends, to a large degree, on there being both the substance and the appearance of a fair and impartial adjudication after reasonable consideration of the record evidence as a whole. If an Administrative Judge makes statements or acts in a manner that could lead a reasonable person to question whether the Judge considered all the record evidence, then a party could understandably question whether he or she received fair consideration of the evidence it presented.” In this case, the number of errors, some of which are substantial, in the Judge’s decision raises this problem. Adverse decision remanded. CASENO: 18-01601.a1 DATE: 04/25/2019 DATE: April 25, 2019 In Re: --------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 18-01601

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 June 3, 2018, 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 February 27, 2019, after considering the record, Administrative Judge Roger C. Wesley denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we remand. The Judge’s Findings of Fact and Analysis Applicant, who is 44 years old, has a child from his first marriage and reported no military service. From 2002 to 2016, he worked for various employers with interspersed brief periods of unemployment and has since worked for his current employer. The SOR alleged that Applicant had a tax lien for about $2,600; a charged-off home equity loan for about $27,000, a mortgage account that was foreclosed in 2013; and a mortgage account that was foreclosed in 2016. Applicant admitted each SOR allegation with explanations. The state tax lien has been resolved. The home equity loan remains outstanding. It is unclear whether either of the foreclosures resulted in deficiency balances. The Judge found for Applicant on the tax lien and against him on the remaining three allegations. Applicant has not established that his finances are sufficiently stabilized to meet the eligibility requirements for holding a security clearance.

DISCUSSION

Applicant challenges some of the Judge’s findings of fact. In doing so, he argues his clearance was revoked based on “inaccurate and or inexact” information.1 Appeal Brief at 1. We examine disputed findings of fact to determine if they are supported by substantial evidence, i.e., “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” See, e.g., ISCR Case No. 16-04094 at 2 (App. Bd. Apr. 20, 2018)(quoting Directive ¶ E3.1.32.1). One significant error in the Judge’s findings of fact involves the amount of one of the foreclosed mortgages. In his background interview, Applicant stated that he cosigned a mortgage with his mother that was foreclosed.2 The two credit reports in the record reflect the high credit amount for that mortgage loan was about $86,300. File of Relevant Material (FORM) Items 5 and 6. The Judge, however, found that Applicant had cosigned a note for that mortgage in the amount 1 One of Applicant’s contentions is that he provided proof that he paid the tax lien. However, the Judge found in favor of him on that allegation. 2 This mortgage was alleged in SOR ¶ 1.c. of $206,450. The Judge may have mistakenly relied on the amount of a non-alleged mortgage listed in one credit report instead of the foreclosed mortgage alleged in the SOR.3 The Judge also found that it was unclear whether either of the foreclosed mortgages had deficiency balances. The two credit reports in the record, however, both reflect zero balances of each of the foreclosed mortgages. The Judge did not address in his decision the zero balances in the credit reports. Another error involves the Judge’s reference to Applicant’s “failure to timely file address his state tax obligations . . . .” Decision at 5. Tax filing deficiencies were not raised as an issue in this case. Applicant further notes that the Judge erred in finding that his daughter was from his first wife and that he had no military service. Applicant’s security clearance application reflects that he served four years in the military and was honorably discharged. FORM Item 3. The Board has noted that: “Public confidence in the fairness and integrity of the industrial security program depends, to a large degree, on there being both the substance and the appearance of a fair and impartial adjudication after reasonable consideration of the record evidence as a whole. If an Administrative Judge makes statements or acts in a manner that could lead a reasonable person to question whether the Judge considered all the record evidence, then a party could understandably question whether he or she received fair consideration of the evidence it presented.” ISCR Case No. 02-23979 at 4 (App. Bd. Aug. 25, 2004). In this case, the number of errors, some of which are substantial, in the Judge’s decision raises this problem. Given the errors identified above, we conclude the best resolution of this appeal is to remand the case to the Judge to correct the errors and to issue another decision consistent with the Directive. 3 The non-alleged mortgage was listed as past-due 90 days in one credit report. FORM Item 6. In his background interview, Applicant indicated that he was able to obtain a loan modification for that mortgage and resolve its delinquency. FORM Item 4.

ORDER

The Decision is REMANDED. 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