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ISCR Case 08-10613.a1 — CASE

ISCR Case 08-10613.a1denied

Case Headnote

ISCR Case No. 08-10613.a1

May 20, 2010· Hon. Jeffrey D. Billett· appeal

Summary

The applicant, representing himself, was denied a security clearance under Guideline F, Financial Considerations, due to significant unresolved financial issues. The applicant faced disqualifying conditions as outlined in Adjudicative Guideline (AG) ¶ 20.

The applicant had approximately $72,642 in debts owed to thirteen creditors. While the applicant attributed these financial difficulties to unemployment, the judge found that this did not sufficiently mitigate the security concerns. The applicant also did little to address the debts, with the only action noted being an unclear loan modification process.

Ultimately, the judge determined there was insufficient evidence of mitigation under AG ¶ 21, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe applicant's financial difficulties were due to circumstances beyond his control, but he did not take sufficient action to resolve them.

Key Rule Quoted

“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.”
— ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007)

Procedural Posture

SOR issuedMay 20, 2009
Answer filed—Applicant represented himself.
Hearing heldMar 8, 2010
Decision dateMay 20, 2010

Cite For

Insufficient Evidence of Mitigation Under Guideline F
Failure to Take Proactive Measures to Address Financial Issues
Disagreement with the Judge's Weighing of Evidence Does Not Demonstrate Arbitrariness.

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 a security clearance based on financial considerations under Guideline F. The applicant argued that the decision was arbitrary and capricious, citing his long history of holding a clearance and the circumstances of his financial difficulties. The Board affirmed the Judge's decision, finding that the applicant had not sufficiently addressed his financial issues despite having considerable net worth.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRichard A. Cefola — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

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

Why the Board ruled this way

The Board concluded that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, including a rational connection between the facts found and the choice made. The Judge's unfavorable security clearance decision was sustainable based on the evidence presented.

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

Jeffrey D. Billett
William S. Fields
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: Although Applicant’s financial problems originated from circumstances outside his control, the Judge concluded that he had done little to address them. Adverse decision affirmed. CASENO: 08-10613.a1 DATE: 05/20/2010 DATE: May 20, 2010 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-10613

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 May 20, 2009, 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 a hearing. On March 8, 2010, after the hearing, Administrative Judge Richard A. Cefola denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse clearance decision is arbitrary, capricious or contrary to law. To the extent that Applicant’s assertions rely on evidence not presented to the Judge at the hearing, the Board cannot consider that new evidence on appeal. See Directive ¶ E3.1.29. Applicant argues that the Judge should have found in his favor because he has held a security clearance without incident since the 1960s, his financial problems were due to unemployment and subtle age discrimination, and he did not seek bankruptcy as a resolution for his unpaid debts.1 These arguments do not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. The Judge made the following relevant findings: Applicant was unemployed or underemployed from 2001 until 2006, a circumstance which caused his current financial difficulties. He has about $100,000 equity in his house, and has access to about $80,000 in cash and retirement accounts. Most recently, he and his spouse are engaged in a federally sponsored loan modification process and have retained professional services to expedite the process. Applicant admits to owing about $72,642 in past due debts to thirteen different creditors. “The Applicant is unsure of the origin of many of these debts, and has done nothing, apart from looking at a loan modification program, to address his debts.” Decision at 2. Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. 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). In this case, the Judge weighed the mitigating evidence against the seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. The Judge reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. In particular, the Judge noted that although Applicant’s financial problems had been due to circumstances beyond his control: “Applicant had done little to address the alleged past due debts. They are still outstanding despite his considerable net worth, and he has only started to address them th[r]ough a loan modification program, with unclear results, if any.” Decision at 4. The Board does not review a case de novo. After reviewing the record, the Board concludes that the Judge examined the relevant data and 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 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 unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board