CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 22-02182 — CASE

ISCR Case 22-02182denied

Case Headnote

ISCR Case No. 22-02182

Dec 19, 2023· Hon. Gregg A. Cervi· appeal

Summary

An applicant representing herself was denied a security clearance under Guideline F (Financial Considerations) due to 14 delinquent debts totaling approximately $8,910. The judge identified disqualifying condition F.3, noting the applicant's history of not meeting financial obligations.

While the applicant admitted to nine of the debts and claimed unawareness of the remaining five, she did not successfully mitigate the financial concerns. Although mitigating conditions F.2 and F.3 were considered, the judge determined that the applicant failed to demonstrate that granting her eligibility was consistent with the national interest.

The denial was upheld on appeal, as the applicant did not show any harmful error in the judge's initial decision.

Conditions Referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts

Mitigating

F.2rejectedThe Conditions That Resulted in the Financial Problem Were Largely Beyond the Person's ControlThe judge found that the applicant's financial issues were not mitigated.
F.3rejectedThe Person Has Received or Is Receiving Counseling for the ProblemThe applicant's efforts to resolve debts were not sufficient to mitigate the concerns.

Key Rule Quoted

“Once the Government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation.”

Procedural Posture

SOR issuedJan 18, 2023
Answer filed—Applicant requested a decision based on the administrative record without a hearing.
Hearing heldOct 5, 2023
Decision dateDec 19, 2023Appeal affirmed.

Cite For

Burden of Proof Shifts to Applicant After Government Raises Security Concerns
Rebuttable Presumption That the Judge Considered All Evidence
Applicant's Disagreement with Evidence Weighing Does Not Demonstrate Harmful Error

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 a denial of security clearance based on financial considerations. The Applicant argued that the Judge did not adequately consider her response to the FORM and her employment history. The Board affirmed the Judge's decision, finding no harmful error in the ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRichard A. Cefola — denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant argued that the Judge did not appropriately consider her response to the FORM and her employment history.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the Applicant did not demonstrate any harmful error in the Judge's findings or conclusions.

Standard of review applied

No de-novo re-decisionNo new evidence on appealBurden of persuasion

Appeal Board panel

Moira Modzelewski — Chair
Gregg A. Cervi
Allison Marie

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. 22-02182

)

) 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 19, 2023

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Julie R. Mendez, Esq., Deputy Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On January 18, 2023, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision―security concerns raised under Guideline F (Financial Considerations) of the National Security Adjudicative Guidelines (AG) in Appendix A of Security Executive Agent Directive 4 (effective Jun. 8, 2017) and DoD Directive 5220.6 (January 2, 1992, as amended) (Directive). Applicant requested a decision based on the administrative record without a hearing. On October 5, 2023, Defense Office of Hearings and Appeals Administrative Judge Richard A. Cefola denied Applicant’s security clearance eligibility. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The SOR alleged that Applicant has 14 delinquent debts. In responding to the SOR, Applicant admitted nine allegations and generally asserted that she was unaware of the remaining debts, while providing explanations for each. The Judge found against Applicant on nine of the debts while deciding in her favor on five allegations. In summarizing his decision, the Judge held

that nine debts totaling about $8,910 were not mitigated, that Applicant still has significant, admitted past-due debts, and that she has not carried her burden of showing that it is clearly consistent with the national interest to grant her eligibility for access to classified information. Decision at 5-6. Applicant’s appeal brief suggests that the Judge may not have seen her response to the Government’s file of relevant material (FORM), where she explained the current status of each debt, and that he did not appropriately consider the length of her employment as a Government contractor. Additionally, she provides new evidence to explain past assertions or to show subsequent resolution of debts. Finally, she argues that her actions to resolve her financial delinquencies support reconsideration of her clearance eligibility. Appeal Brief at 1-4. First, we note the decision acknowledges and admits Applicant’s May 12, 2023, response to the FORM, and the Judge’s findings of fact reflect items that are contained in the response. Next, the Judge noted that Applicant “has worked for a Federal Contractor since October of 2019.” Decision at 2. This reflects her current employment as listed in her security clearance application (SCA). Government Exhibit 2. There is no reason to believe that the Judge did not recognize or consider her past employment with Government contractors, as reflected in her SCA. There is a rebuttable presumption that the Administrative Judge considered all of the record evidence, and the appealing party has a heavy burden when trying to rebut that presumption. See, e.g., ISCR Case No. 18-00110 at 5 (App. Bd. Mar. 31, 2020). Finally, Applicant presented on appeal revised explanations and new evidence submitted to show her efforts to resolve debts. Much of this evidence was not presented in response to the SOR or the FORM and was unavailable to the Judge when he issued his decision. The Appeal Board is prohibited from considering new evidence on appeal. Directive ¶ E3.1.29. It should be understood that once the Government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The application of disqualifying and mitigating conditions does not turn simply on a finding that one or more of them apply to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole. Thus, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security 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 that 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. 06-17409 at 3 (App. Bd. Oct. 12, 2007). The Appeal Board does not review cases de novo. The Board’s authority to review a case is limited to cases in which the appealing party has alleged the Judge committed harmful error. Directive ¶ E3.1.32. Because Applicant has not alleged such a harmful error, the decision of the Judge denying Applicant security clearance eligibility is sustainable.

ORDER

The decision is AFFIRMED. Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Chair, Appeal Board Signed: Gregg A. Cervi Gregg A. Cervi Administrative Judge Member, Appeal Board Signed: Allison Marie Allison Marie Administrative Judge Member, Appeal Board