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ISCR Case 08-07264 — CASE

ISCR Case 08-07264denied

Case Headnote

ISCR Case No. 08-07264

Oct 15, 2009· Hon. Jeffrey D. Billett· appeal

Summary

A 59-year-old information technology employee was denied a security clearance under Guideline F (Financial Considerations) due to significant financial irresponsibility. The applicant had accumulated $109,000 in delinquent debts and failed to file federal income tax returns for both 2006 and 2007.

The denial was based on the applicant's inability to demonstrate efforts to resolve these debts or seek financial counseling. The judges concluded that this pattern of financial behavior, specifically the substantial delinquent debts and unfiled tax returns, presented a serious security concern.

The applicant did not provide evidence of good-faith efforts to address the financial issues, leading to the final determination that the disqualifying conditions under Guideline F were not mitigated. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 20(a)raisedFinancial Considerations

Key Rule Quoted

“There is a rebuttable presumption that a Judge is impartial and unbiased.”
— ISCR Case No. 07-02253 at 3 (App. Bd. Mar. 28, 2008)

Procedural Posture

SOR issuedOct 22, 2008
Answer filed—
Hearing heldMay 7, 2009
Decision dateOct 15, 2009

Cite For

Financial Irresponsibility as a Security Concern Under Guideline F
Failure to File Tax Returns as a Disqualifying Factor
Presumption of Judicial Impartiality in Security Clearance Decisions

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 concerned the denial of a security clearance based on financial considerations under Guideline F. The applicant argued that the Judge's findings were not supported by substantial evidence and claimed the decision was arbitrary and biased. The Board affirmed the Judge's decision, finding no harmful error and that the Judge's conclusions were sustainable based on the record.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCarol G. Ricciardello — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge's findings of fact were not based on substantial record evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant challenged the Judge's impartiality.

Why the Board ruled this way

The Board found no harmful error in the Judge's findings and concluded that the Judge's decision was sustainable based on substantial evidence. The Judge articulated a satisfactory explanation for the decision, maintaining a rational connection between the facts and the choice made.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Jeffrey D. Billett
Jean E. Smallin
James E. Moody

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 Judge’s material findings of security concern are sustainable Applicant’s appeal presentation does not rebut the presumption that a Judge is impartial and unbiased. Adverse decision affirmed. CASENO: 08-07264 DATE: 10/15/2009 DATE: October 15, 2009 In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-07264

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On October 22, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations) Applicant “sent letters to some of his creditors with $100 payments to totally resolve his debts. Applicant has not made any other payments, nor has he made any other effort to resolve these delinquent debts . . . He believes he is not responsible for all the debt he incurred . . . Applicant’s attitude towards following rules, acting responsibly, and exercising good judgment is troubling and a serious security concern.” Decision at 11. of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On May 7, 2009, 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. Applicant raised the following issues on appeal: whether certain of the Judge’s findings of fact were based upon substantial record evidence and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. The Board also construes Applicant’s brief as challenging the Judge’s impartiality. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is 59 years old and an employee of a federal contractor. The information technology (IT) industry in which Applicant worked experienced a severe downturn in the early 2000s, and Applicant subsequently endured periods of unemployment. When he did work Applicant earned less than he had when the industry was at its peak. When not working, Applicant would pay his living expenses with credit cards. Applicant had credit cards with four creditors, each listed in an allegation in the SOR. His credit card debts have become delinquent, the total amount of the delinquency being $109,000. Additionally, Applicant did not file federal income tax returns for 2006 and 2007. In the Analysis portion of the decision, the Judge noted that the crash in the IT industry was a circumstance beyond Applicant’s control which affected his financial condition. See Directive ¶ E2.20(b). However, she went on to state that Applicant had provided no evidence (1) that he had sought financial counseling; (2) that he had initiated a good-faith effort to resolve his debts; or (3) that his creditors considered the debts resolved. Applicant makes numerous assertions, based on what he contends are legal principles applicable to his case, in support of the proposition that he does not owe various debts. Applicant has failed to demonstrate that the Judge’s findings and conclusions regarding his debts are erroneous. After reviewing the record, the Board concludes that the Judge’s material findings are based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from the record. For example, Applicant challenges the Judge’s findings that his current salary is $138,000 a year and that he failed to file income tax returns. He also claims that his credit reports contain errors. Considering the record evidence as a whole, the Judge’s material findings of security concern are sustainable. Applicant has not identified any harmful error likely to change the outcome of the case. See, e.g., ISCR Case No. 06-21025 at 2 (App. Bd. Oct. 9, 2007). There is a rebuttable presumption that a Judge is impartial and unbiased. Applicant’s presentation on appeal is not sufficient to rebut that heavy presumption. See, e.g., ISCR Case No. 07-02253 at 3 (App. Bd. Mar. 28, 2008); ISCR Case No. 02-08032 at 4 (App. Bd. May 14, 2004). Furthermore, the Board concludes that the Judge has articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The Judge’s decision that “it is not clearly consistent with the interests of national security to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 11. See also Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board