Loading case…

ISCR 08-10204.a2: Guideline F security clearance appeal, denied (2010) · CASE

ISCR Case 08-10204.a2denied

Case headnote

ISCR Case No. 08-10204.a2

Jun 21, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, represented by counsel, was denied a security clearance under Guideline F (Financial Considerations) due to unresolved debts and a history of not meeting financial obligations. The judge found that the applicant failed to provide sufficient evidence of responsible action regarding these debts.

Specifically, the applicant had numerous debts that remained delinquent for several years, and did not provide adequate evidence of payment to creditors or efforts to contact them. While the applicant raised claims of identity theft and an inability to obtain employment, these were deemed insufficient to mitigate the security concerns.

The decision cited Disqualifying Conditions AG ¶ 19(a) and AG ¶ 19(c), while applying Mitigating Condition AG ¶ 20(b). Ultimately, the applicant's failure to demonstrate responsible financial management and proactive efforts to resolve outstanding obligations led to the denial of the security clearance.

Conditions referenced

Disqualifying

AG ¶ 19(a)raisedInability or Unwillingness to Satisfy Debts
AG ¶ 19(c)raisedA History of Not Meeting Financial Obligations

Mitigating

AG ¶ 20(b)appliedThe Conditions That Resulted in the Financial Problem Were Largely Beyond the Person’s ControlThe judge acknowledged the applicant's divorce but limited credit due to lack of evidence of responsible action.

Key rule quoted

“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)

Procedural posture

SOR issuedDec 30, 2008
Answer filed—
Hearing heldJul 23, 2009Applicant requested decision on written record.
Decision dateJun 21, 2010Appeal Board affirmed the judge's decision.

Cite for

Insufficient Evidence of Responsible Action Regarding Debts Under Guideline F
Impact of Unresolved Debts on Security Clearance Eligibility
Limitations of Mitigating Conditions in Financial Considerations 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 seeking a security clearance who was denied due to unresolved debts and financial issues. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it reasonable and supported by evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJuan J. Rivera denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argued that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the Judge properly weighed the evidence and applied the relevant legal standards.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan (Chair)
Michael D. Hipple
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: Applicant relies heavily on Exhibit H. The Judge cited Exhibit H by name twice. The Judge reasonably noted the deletion of debts from Applicant’s credit repot were without explanation. Adverse decision affirmed. CASENO: 08-10204.a2 DATE: 06/21/2010 DATE: June 21, 2010 In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-10204

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Samuel Bluck, Esq. The two disqualifying conditions are Directive, Enclosure 2 ¶ 19 (a): inability or unwillingness to satisfy debts and Directive, Enclosure 2 ¶ 19(c): a history of not meeting financial obligations. The conditions that resulted in the financial problem were largely beyond the person’s control (e.g. loss of employment, a business downturn, unexpected medical emergency, or a death , divorce or separation), and the individual acted responsibly under the circumstances. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On December 30, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested that the case be decided on the written record. On July 23, 2009, after the close of the record, Administrative Judge Juan J. Rivera denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. On October 6, 2009 the Appeal Board remanded the case back to the Judge for further processing. The Judge issued an Order, dated February 16, 2010, reopening the record. Applicant submitted several documentary Exhibits. Applicant’s submissions after remand were collated by the Judge into two collections: App. Ex. 2 (this included a brief by Applicant) and App. Ex. 3 (this also included the Department Counsel’s response to Applicant’s Exhibits). The Judge issued a remand decision dated March 29, 2010, which again denied Applicant’s request for clearance. Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable decision. The Judge found that all but two of the 19 delinquent debts or charged off accounts alleged in the SOR are Applicant’s unresolved debts and have been delinquent for a number of years. The Judge noted that some of the delinquent debts have been removed from Applicant’s most recent credit report. The Judge noted the absence of evidence of payment to creditors or efforts to contact them. He further noted the absence of any specific explanation by Applicant for each debt. The Judge did cite Applicant’s general claims that his debts arose: (1) when he was awaiting prosecution on felony charges and thus unable to obtain a job; and (2) from identity theft and fraud committed by Applicant’s ex-wife. The Judge concluded that the Applicant’s conduct and circumstances are covered by two disqualifying conditions. In that context he noted that Applicant’s most recent credit report had deleted some debts without any explanation. The Judge discussed three mitigating conditions but only gave Applicant credit under one of them, Directive, Enclosure 2 ¶ 20(b), and that credit was only partial. The Judge explained that Applicant was entitled to some consideration because of his divorce but that was limited by the lack of evidence of responsible action under the circumstances. The Judge gave Applicant no credit for circumstances pertinent to his criminal conduct. Applicant relies heavily on Applicant’s Exhibit H, a credit report dated February 25, 2010, which reflects only four debts for a total of under $1,000. The Judge cited Exhibit H by name twice in his findings of fact. The Judge’s Analysis section reasonably notes the deletion of debts from Applicant’s credit report without any explanation. The Judge clearly considered Exhibit H. Given the Judge’s reasonable explanation for his analysis of the Exhibit, what remains, at most, is a disagreement about weight. 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. See, e.g., ISCR Case No. 06-10320 at 2 (App. Bd. Nov. 7, 2007). A party’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 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). Applicant argues that he has satisfied the requirements for mitigation and relies on the decision in ISCR Case No. 08-06567 (App. Bd. Oct. 29, 2009) for the proposition that applicants are not required to be debt-free, nor are they required to have a plan for immediate or simultaneous repayment of debts. Applicant states that all that is required is that an applicant act responsibly given his circumstances and develop a reasonable plan for repayment of debts, accompanied by concomitant conduct that evidences a serious intent to effectuate the plan. The Judge here explained why he could not conclude that Applicant had met his burden of persuasion that he had acted responsibly. The Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. He also discussed the applicability of the mitigating conditions from Directive, Enclosure 2 ¶ 20 at some length, but indicated with sufficient detail why all but one of the Guideline F mitigating conditions were not pertinent to Applicant’s conduct and circumstances in this case and, thus, could not be brought to bear to alleviate the government’s security concerns. Given the record before the Judge, his analysis is sustainable. Finally, Applicant cites to two hearing office cases to support his arguments for reversing the Judge’s decision. We give due consideration to these cases. However, each case must be judged upon its own merits. Directive, Enclosure 2 ¶ 2(b). The cases cited by Applicant are factually distinct from his in significant ways. In any event, Hearing Office decisions are binding neither on other Hearing Office Judges nor on the Board. See ISCR Case No. 06-24121 at 2 (App. Bd. Feb. 5, 2008). The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007). After reviewing the record, the Board concludes that the Judge examined the relevant data and reached reasonable conclusions. “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). Therefore, the Judge’s ultimate unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board