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ISCR Case 20-02304 — CASE

ISCR Case 20-02304denied

Case Headnote

ISCR Case No. 20-02304

Dec 8, 2022· Hon. Moira D. Modzelewski· appeal

Summary

A security clearance applicant, representing herself, was denied under Guideline F (Financial Considerations) due to significant financial issues. The applicant had 27 delinquent debts and a dismissed bankruptcy, which raised disqualifying conditions under F.3.

While the applicant claimed progress in resolving some debts, the Administrative Judge found insufficient evidence to mitigate the security concerns. Although mitigating conditions F.2 and F.3 were considered, they were not applied due to the overall lack of resolution for the substantial number of outstanding financial obligations.

The appeal of the denial was unsuccessful. The applicant's allegations of bias and discrimination were unsubstantiated, and the decision to deny the security clearance was upheld.

Conditions Referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts

Mitigating

F.2rejectedThe Conditions That Resulted in the Financial Difficulties Were Largely Beyond the Person's ControlThe applicant did not provide sufficient evidence to demonstrate that her financial difficulties were largely beyond her control.
F.3rejectedThe Person Has Received or Is Receiving Counseling for the Financial ProblemThe applicant's claims of progress in debt resolution were not substantiated with adequate evidence.

Key Rule Quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with national security.’”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedApr 9, 2021
Answer filed—
Hearing heldSep 12, 2022
Decision dateDec 8, 2022

Cite For

Insufficient Evidence to Mitigate Financial Concerns Under Guideline F
Rebuttable Presumption of Impartiality in Administrative Hearings
Criteria for Establishing Bias and Discrimination Claims in Security Clearance Cases

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. The applicant claimed bias and that her debt resolution progress was not fairly considered. The Board found no harmful error and affirmed the denial of the clearance.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCarol G. Ricciardello — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge bias or partiality — raised by the applicantRejected
Applicant claimed bias against her based on the color of her skin.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge did not consider her debt resolution progress.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision, which was supported by substantial evidence and articulated a satisfactory explanation for the denial of the security clearance.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decision

Appeal Board panel

James F. Duffy — Chair
Jennifer I. Goldstein
Moira Modzelewski

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

APPEARANCES

_______________________________________________ ) In the matter of: )

)

----- )

ISCR Case No. 20-02304

)

) Applicant for Security Clearance ) _______________________________________) DEPARTMENT OF DEFENSE DEFENSE LEGAL SERVICES AGENCY DEFENSE OFFICE OF HEARINGS AND APPEALS APPEAL BOARD POST OFFICE BOX 3656 ARLINGTON, VIRGINIA 22203 (703) 696-4759 Date: December 8, 2022

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 9, 2021, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) of DoD Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 12, 2022, after the hearing, Administrative Judge Carol G. Ricciardello denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The SOR alleged that Applicant had 27 delinquent debts and that she had a Chapter 13 bankruptcy filing dismissed in 2018. In responding to the SOR, Applicant denied two of the alleged debts, claiming one was fraudulent and the other did not belong to her. In admitting the other alleged debts, Applicant claimed they were either paid, settled, or disputed. The Judge found favor of Applicant on six debt allegations and against her on the remaining allegations. The Judge concluded that Applicant presented insufficient evidence to mitigate the alleged security concerns.

Applicant’s appeal brief consists of the following assertion of error: I feel that my progress for my clearance was not fairly taken into consideration. I felt that I had a bias against me because of the color of my skin. I felt uneasy and unheard when given the opportunity to submit the progress of my debt[.] I truly felt that it was not taken into consideration and a decision was already made. [Appeal Brief at 1.] The Appeal Board is tasked to address material issues raised by the parties to determine whether the Judge committed factual or legal error. Directive ¶¶ E3.1.32 – E3.1.32.3. There is no presumption of error below, and the appealing party must raise claims of error with specificity and identify how the Administrative Judge committed factual or legal error. See, e.g., ISCR Case No. 02-12199 at 2 (App. Bd. Aug. 8, 2005). Bias and Unlawful Discrimination There is a rebuttable presumption that quasi-judicial officers are impartial and unbiased. See Schweiker v. McClure, 456 U.S. 188, 195 (1982). An appealing party has a heavy burden of demonstrating conduct by an Administrative Judge that deprived the hearing or decision of fairness and impartiality. See, e.g., DISCR Case No. 94-0282 at 4-5 (App. Bd. Feb. 21, 1995) (citing Federal cases). In this regard, an adverse decision or adverse rulings, standing alone, do not demonstrate judicial bias. See, e.g., ISCR Case No. 08-03233 at 3 (App. Bd. Aug. 7, 2009) and ISCR Case No. 18-02722 at 5 (App. Bd. Jan. 30, 2020); see also Bixler v. Foster, 596 F.3d 751 at 762 (10th Cir. 2010). Applicant’s brief does not direct our attention to anything in the record that would likely persuade a reasonable person that the Judge was lacking in the requisite impartiality. More specifically, her claim that she felt uneasy and unheard is not sufficient to establish judicial bias. Based on our review of the record, we find no reason to conclude that the Judge exhibited bias against her. We conclude that Applicant’s arguments fail to meet the heavy burden on her to rebut the presumption of impartiality. See, e.g., ISCR Case No. 18-02722 at 5. Additionally, Applicant’s bare allegation of discrimination is not sufficient to establish a prima facie case that she was treated unfairly or differently on the basis of her race or the color of her skin. We find adversely to Applicant on these assignments of error. Weighing Evidence In the decision, the Judge cites to the specific evidence, i.e., exhibits and pages of the transcript, supporting her findings of fact. In her brief, Applicant does not identify any specific evidence that the Judge did not consider. Applicant’s contention that the Judge did not consider her debt resolution progress amounts to a disagreement with the Judge’s weighing of the evidence. This contention is not enough to rebut the presumption that the Judge considered all of the evidence in the record or to demonstrate that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 19-01400 at 2 (App. Bd. Jun. 3, 2020).

CONCLUSION

Applicant failed to establish the Judge committed any harmful error. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on the record. “The general standard is that a clearance may be granted only when ‘clearly consistent with 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 national security.”

ORDER

The decision is AFFIRMED. Signed: James F. Duffy James F. Duffy Administrative Judge Chairperson, Appeal Board Signed: Jennifer I. Goldstein Jennifer I. Goldstein Administrative Judge Member, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board