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ISCR Case 08-06058.a2 — CASE

Case record

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

Decision Date8/26/2010
Statusunknown
LevelHEARING
TypeSTANDARD ISCR
Related decisionsSee the hearing decision (Case 08-06058.h2) →See the appeal decision (Case 08-06058.a1) →See the hearing decision (Case 08-06058.h1) →
Participants
Applicant Representation: Pro Se
Judge: Jeffrey D. Billett, Michael Y. Ra'anan, James E. Moody
Government Counsel: Fahryn Hoffman
Guidelines Evaluated
- Guideline EPersonal Conduct · Against Applicant
- Guideline FFinancial Considerations · Against Applicant

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ISCR Case 08-06058.a2unknown

Case Headnote

ISCR Case No. 08-06058.a2

unknownAug 26, 2010· Hon. Jeffrey D. Billett· hearing

Summary

This security clearance case involved an applicant representing himself, facing concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations) due to a history of delinquent debts. The initial decision by the Judge was favorable to the applicant, but this was subsequently reversed by the Appeal Board.

The reversal stemmed from the Judge exceeding the scope of a remand order. Specifically, the Judge reopened the record and solicited new evidence, which was outside the parameters of the remand. Consequently, the Appeal Board found that the Judge's conclusion regarding the mitigation of the applicant's delinquent debts was not supported by the existing record.

Ultimately, the applicant's presented evidence was deemed insufficient to mitigate the security concerns arising from his financial problems. Therefore, no security clearance was granted.

Why the Applicant Was Denied

The Judge exceeded the scope of the remand order by reopening the record and soliciting new evidence.
The Judge's conclusion that the applicant met his burden of persuasion regarding mitigation of delinquent debts was not supported by the record.
The applicant's evidence was insufficient to mitigate the security concerns arising from his financial problems.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

Key Rule Quoted

“Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance.”
— Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991)

Procedural Posture

SOR issuedDec 5, 2008
Answer filed—
Hearing heldMay 29, 2009
Decision dateAug 26, 2010Decision reversed on appeal.

Cite For

Exceeding the Scope of Remand Orders in Security Clearance Cases
Insufficient Evidence for Mitigating Financial Concerns
Strong Presumption Against Granting Security Clearances When Concerns Arise

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

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

HEARING

SYNOPSIS

KEYWORD: Guideline F; Guideline E DIGEST: The Judge exceeded the scope of the remand order by reopening the record and taking in new evidence, although the order directed only a new decision. Judge erred in concluding that Applicant had met his burden of persuasion as to mitigation regarding his delinquent debts. Favorable decision reversed. CASENO: 08-06058.a2 DATE: 08/26/2010 DATE: August 26, 2010 In Re: --------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-06058 APPEAL BOARD REMAND DECISION

APPEARANCES

FOR GOVERNMENT Fahryn Hoffman, Esq., Department Counsel FOR APPLICANT Pro se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On December 5, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On May 29, 2009, after the hearing, Administrative Judge Mary E. Henry granted Applicant’s request for a security clearance. Department Counsel appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. On September 21, 2009, we remanded the case to the Judge. On May 13, 2010, the Judge issued a Decision on Remand, again granting Applicant’s request for a security clearance. Department Counsel appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raised the following issues on appeal: whether the Judge erred by exceeding the scope of the remand order and whether the Judge’s favorable decision is arbitrary, capricious, or contrary to law. The Judge found that Applicant has a history of delinquent debt, although he had paid off several of the debts and credibly denied owing others. She noted that Applicant had experienced family illnesses, loss of employment, and a separation from his wife. We summarized the Judge’s findings of fact thoroughly in our prior decision, ISCR Case No. 08-06058 (App. Bd. Sep. 21, 2009).

A. Whether the Judge Exceeded the Scope of the Remand Order In her original decision, the Judge concluded that the record was not sufficient to enable Applicant to identify two of the creditors alleged in the SOR. Having found evidence in the record sufficient to identify them, we remanded the case to the Judge for the purpose of obtaining from Applicant an admission or a denial regarding the debts alleged to be owed these two creditors. Department Counsel argues that the Judge did not comply with the requirements of the remand order, insofar as the Judge reopened the record and solicited new evidence. We find Department Counsel’s argument persuasive. The Appeal Board has authority to remand a case to a Judge for the correction of errors. “If the case is remanded, the Appeal Board shall specify the action to be taken on remand[.]” Directive ¶ E3.1.33.2. The case will then be assigned to a Judge “for correction of errors(s) in accordance with the Appeal Board’s clearance decision. The assigned Administrative Judge shall make a new clearance decision in the case after correcting the error(s) identified by the Appeal Board.” Id. at ¶ E3.1.35. In this case, the Judge exceeded the scope of the remand order by receiving new evidence. This new evidence concerned an additional debt other than the two which the Judge had found to be unidentifiable. It appears to have been generated after the close of the record. Furthermore, Applicant made no reply at all concerning one of the two debts at issue in our decision. The Judge’s admission of new evidence was error, as was her failure to secure an admission or denial concerning one of the two debts, as the remand order required. B. Whether the Judge’s Decision is Arbitrary, Capricious, or Contrary to Law Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents th evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. “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 Decision at Note 7: “Applicant believed this account had been paid in his payment plan developed in 1998, but the account number is different . . . The credit reports show conflicting information on the status of this debt . . . , including paid, a zero balance and transferred or sold.” In deciding whether the Judge's rulings or conclusions are erroneous, the Board will review the Judge's decision to determine whether: it does not examine relevant evidence; it fails to articulate a satisfactory explanation for its conclusions, including a rational connection between the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere difference of opinion. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). The record demonstrates that Applicant had paid off certain of his debts. However, the record also contains gaps and ambiguities that undercut Applicant’s case for mitigation and the Judge’s favorable decision. For example, the Judge gave Applicant credit for attempting to resolve a $4,810 judgement owed to a former landlord. She stated that “the judgment, is not resolved or being resolved because the creditor is uncooperative, not for lack of effort on Applicant’s part.” Decision at 12. The record demonstrates that Applicant had encountered financial problems and sought a reduction in the rent he owed the landlord. The landlord did not agree to accept a reduced rent and eventually had Applicant evicted. The landlord received a judgment against Applicant for unpaid rent. Applicant did not appear at the court hearing. Applicant stated that he had contacted the landlord’s attorney, who acted “kind of indignant” toward him. Tr. at 28. There is no evidence to corroborate any efforts Applicant has made to satisfy this judgment or otherwise attempt to address it in good faith. Neither is there anything in the record to support the Judge’s opinion that the landlord behaved unreasonably in seeking monies owed under the lease. The record does not support a conclusion that Applicant has demonstrated mitigation regarding this debt. The Judge found that another debt, in the amount of $4,660 for a credit card, had been paid. However, Applicant’s claim that he had satisfied this debt through a repayment plan is not supported by Applicant Exhibit (AE) A, which lists payments to various creditors pursuant to the plan. This debt does not appear in AE A, which is not consistent with Applicant’s contention that he had paid the debt off during the course of the repayment plan. Furthermore, the Judge herself acknowledged that the record evidence is inconsistent concerning this debt. The record is not sufficient to demonstrate that Applicant has met his burden of persuasion as to mitigation under the Egan standard regarding this debt. The SOR also alleged a debt of $5,699 owed to a jeweler. While the record contains a settlement offer to Applicant by the creditor, it does not demonstrate that Applicant actually paid the amount contained in the offer. Exhibit H. The Judge’s conclusion that Applicant had paid off this debt through settlement is not supported by the record evidence. Of particular note is the $1,377 debt which formed part of the basis for the remand order. In the original decision the Judge concluded that the evidence did not identify either this creditor, SOR ¶ 1(c), or another alleged in SOR ¶ 1(i) and that, as a consequence, the Government had failed to meet its burden of production. However, as we stated in our earlier decision, the record did indeed identify both creditors with sufficient specificity to enable Applicant to address the debts. Furthermore, AE L, provided by Applicant in response to the remand order, specifically identified AE E consists of two pay stubs from a previous employer, one showing a “Garnishment-Tax Levy” in the amount of $5,036.95 and the other showing $7,717.60. AE F is an employee earnings report from a different employer, covering the period of time between May 2003 and November 2004. This document shows a total of $44,008.46 paid by garnishment to an unspecified creditor. Government Exhibit 2, Response to Interrogatories, contains a credit report, dated August 12, 2008, which lists the federal tax lien. It does not report a “released date” for the lien. The record does not contain a document from the IRS to Applicant stating that the tax debt had been satisfied. the creditor alleged in 1(c) and provided some information concerning the debt. Nevertheless, in her Decision on Remand, the Judge continued to assert that the identities of both creditors were unknown, although she concluded that Applicant had demonstrated that 1(c) had been resolved. The Judge’s conclusion that these creditors could not be identified is error, as is her conclusion that the evidence is sufficient to mitigate the security concerns arising from them, in light of the Egan standard. We also note the Judge’s finding that Applicant had three debts which he denied but which he subsequently paid after the hearing. “His change in position is not explained.” Decision at 6-7. This lack of explanation undercuts her subsequent analysis that Applicant had demonstrated a good- faith effort to resolve these debts. The Judge does not address why Applicant could not reasonably have ascertained the validity of the debts prior to the hearing or, indeed, prior to his receipt of the SOR. Moreover, the fact that Applicant’s largest debt, the $24,701 tax lien, was paid off through garnishment rather than a voluntary effort diminishes its mitigating force. All in all, considering the record as a whole, we conclude that Applicant’s evidence is not sufficient to mitigate the security concerns arising from his financial problems. We conclude that the Judge’s favorable decision is not sustainable.

ORDER

The Judge’s adverse security clearance decision is REVERSED. Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board DISSENTING OPINION OF ADMINISTRATIVE JUDGE MICHAEL Y. RA’ANAN ISCR Case No. 98-0066 (App. Bd. Feb. 9, 1999). Appeals after remand where harmful error is at issue can put the Board in a quandary. At some point the case needs to reach closure. On the other hand, sometimes preservation of the process and its integrity is paramount. The proper resolution of this case is remand to another Judge. In order to demonstrate why that is appropriate, it is necessary to discuss how the Judge implemented the Board’s instructions from the first Appeal Board case: In the case at issue now, the Judge received specific instructions from the Board. Indeed, there were, effectively, nine instructions. The Judge carried out four of them. The Judge re-opened the record. The Judge gave Department Counsel an opportunity to respond. The Judge issued a new decision. The Judge gave Applicant no credit under Directive Enclosure 2¶ 20(d) for the IRS garnishment nor any debt which he disputed, denied or had not paid. The Judge partly carried out two instructions. The Judge did have a discussion of the timing of certain payments but it was not sensible–the Judge concluded that payment of two debts after the hearing was indicative of good faith. The Judge did remove her expansive inappropriate discussion of the Appeal Board’s authority but she added in new, and factually incorrect, arguments with the Board regarding the two debts which were a substantial basis for the remand. The Judge failed entirely to implement three instructions. The record was only to be opened for the “limited purpose of obtaining from Applicant an admission or denial regarding the two creditors referred to in SOR allegation 1.cand 1.i . . .” The Judge directed Applicant to take various actions with multiple third parties and then to submit new evidence to her. Those directions exceeded the scope of the remand order. The Judge did not explain what authority she had for such directions. Next, the Judge was supposed to evaluate Applicant’s admissions or denials on two debts which she had mistakenly believed were not identified in the record. After remand, Applicant discussed the status of his relationship with the creditor in 1.c, a national retailer, through two accounts. The Judge failed to discuss or evaluate Applicant’s explicit acknowledgment of the identity of the creditor. The Judge also failed to note the Board’s identification of the pages in the record where the creditor’s name and contact information were identified. Instead of evaluating Applicant’s acknowledgment, the Judge wrote, “Applicant also disputed the debt in allegation 1.c after the hearing. He continually denied any knowledge of the creditor. The credit report failed to identify the original creditor, and did not list an address or telephone number for this creditor. Thus, Applicant had no way to contact the creditor or pay the debt if it was his. Given that the Appeal Board considered the debt proven, Applicant properly disputed after remand under these facts.” (Decision p. 10.) Finally, any discussion in the new decision of Directive, Enclosure 2 ¶ 20 (b) or 20 (e) was supposed to have a complete discussion as to how each prong of the guideline applies for each debt under discussion. The Judge failed to do that. In light of the Judge’s failures and her continued argumentation it is not plausible to believe she could render a fair and reasoned decision in this case. There is case law both within DOHA and See e.g., United States v. Robin 553 F.2d 8 (2 cir.), United States v. Torkington 874 F.2d 1441(11th Cir.), nd Chudasma v. Mazda 123 F.3rd 1353 (11 Cir.). th outside of DOHA for the proposition that when a Judge is unwilling to carry out the law in a given case that the proper resolution is to remand the case to another Judge even absent a showing of bias. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board