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ISCR Case 21-01688 — CASE

Case record

ISCR Case 21-01688

A decided public DOHA case, shown for research — not advice or a prediction.

Case Profile
Decision Date1/30/2023
Statusunknown
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionsSee the hearing decision (Case 21-01688) →See the hearing decision (Case 21-01688) →
Participants
Applicant Representation: Pro Se
Judge: Moira D. Modzelewski, James E. Moody, James F. Duffy
Government Counsel: James B. Norman, Tara R. Karoian
Case Summary
The applicant, a man in his late forties, sought a security clearance from the Department of Defense (DoD) but faced allegations under Guideline F (Financial Considerations) due to delinquent student loan debt totaling approximately $101,200 from 14 loans incurred while attending ITT Technical Institute from 2008 to 2013. The Statement of Reasons (SOR) outlined these financial concerns, which the applicant admitted in his response.
The administrative judge, Robert Robinson Gales, found that the applicant was no longer legally responsible for the student loans due to a federal program that discharged loans for borrowers from ITT Tech. The judge referenced articles from the Washington Post detailing the loan forgiveness program and concluded that the applicant merely needed to submit an application for forgiveness. However, the judge's reliance on these articles, which were not formally entered into evidence, raised procedural concerns. The Department Counsel argued that the judge had erred by taking administrative notice of non-record evidence without providing the parties an opportunity to respond.
The Appeal Board ultimately remanded the case, citing the judge's failure to notify the parties of his intent to take administrative notice and to enter the articles into the record. The Board emphasized the need for a new decision based on a properly reopened record, allowing both parties to present additional evidence or arguments.
Guidelines Evaluated
- Guideline FFinancial Considerations · For Applicant
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Case Headnote

ISCR Case No. 21-01688

Jan 30, 2023· Hon. Moira D. Modzelewski· appeal

Summary

This case involved a man in his late forties who was initially denied a security clearance under Guideline F (Financial Considerations) due to approximately $101,200 in delinquent student loan debt. The specific disqualifying condition raised was F.3.

The judge initially granted the clearance, applying mitigating conditions F.2 and F.3. This decision was based on administrative notice of loan forgiveness related to the applicant's alma mater, ITT Technical Institute.

However, the case was subsequently remanded. This remand was due to procedural errors, specifically the judge's reliance on external articles without providing proper notice to the parties involved. The verified outcome of the case is "None."

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 judge's reliance on external articles was deemed improper without notice.
F.3rejectedThe Person Has Made Good Faith Efforts to Repay DebtsThe judge's findings were based on non-record evidence.

Key Rule Quoted

“A DOHA Judge may take administrative notice of a newspaper article when the reported facts are easily verifiable through a reliable source.”
— Kress v. United States, 382 F.Supp. 3d 820, 830 (E.D. Wis. 2019)

Procedural Posture

SOR issuedDec 3, 2021
Answer filed—Applicant requested a decision on the written record.
Hearing held—Applicant did not submit a response to the FORM.
Decision dateJan 30, 2023Case remanded for procedural errors.

Cite For

Remand for Improper Administrative Notice Under Guideline F
Importance of Providing Notice for Administrative Notice in Security Clearance Cases
Rebuttable Presumption of Judicial Impartiality in Administrative Proceedings

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 was brought by Department Counsel after an Administrative Judge granted the Applicant a security clearance despite concerns regarding delinquent student loans. The Board found that the Judge erred in taking administrative notice of non-record evidence and failing to provide notice to the parties. The case was remanded for further proceedings.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowRobert Robinson Gales — granted the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the Government (Department Counsel)Error sustained
The Judge erred by taking administrative notice of non-record evidence without providing notice to the parties.
Procedural error — raised by the Government (Department Counsel)Error sustained
The Judge failed to give the parties notice of his intent to take administrative notice and an opportunity to respond.
Erroneous finding of fact — raised by the Government (Department Counsel)Error sustained
The Judge's findings of fact regarding the Washington Post articles were not based on record evidence.

Why the Board ruled this way

The Judge erred in taking administrative notice of non-record evidence without providing notice to the parties and failed to enter the articles into the record, which affected the findings of fact.

Ignored material evidenceMissing findingsOther

On remand, the judge must

The Judge must reopen the record, provide the parties any documents on which he intends to rely for taking administrative notice, and give them an opportunity to submit additional evidence or argument.

Standard of review applied

Harmful-error gatekeeperProcedural compliance

Appeal Board panel

James F. Duffy — Chair
James E. Moody
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.