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ISCR 09-08295.a1: Guideline F security clearance appeal (2011) · CASE

ISCR Case 09-08295.a1unknown

Case headnote

ISCR Case No. 09-08295.a1

Sep 13, 2011· Hon. Jeffrey D. Billett· appeal

Summary

This case involves a configuration analyst with a Master's degree whose security clearance was initially denied under Guideline F, Financial Considerations, due to significant delinquent debts. The applicant had previously discharged approximately $238,000 in delinquent debt through bankruptcy. However, since then, she accumulated an additional $38,000 in delinquent debts, leading to the application of Disqualifying Condition F.3.

The judge's decision to deny the clearance was remanded because the applicant did not receive a request for additional evidence, which hindered her ability to present a complete case. Despite this, the judge noted that the applicant had not submitted evidence of debt repayment or credit counseling to mitigate the security concerns, specifically regarding the more recent $38,000 in delinquent debts.

Ultimately, no final outcome was reached on the security clearance itself, as the case was remanded for further proceedings. Mitigating Condition F.2 was considered, but the lack of submitted evidence regarding current debt resolution or financial counseling prevented its full application.

Conditions referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts

Mitigating

F.2rejectedThe Conditions That Resulted in the Financial Problems Were Largely Beyond the Person's ControlThe judge acknowledged the applicant's medical problems and family issues but found insufficient evidence to mitigate the concerns.

Key rule quoted

“Due process requires that an applicant be given a fair opportunity to present evidence in support of their case.”

Procedural posture

SOR issuedJul 8, 2010
Answer filed—
Hearing heldJun 22, 2011Decision on written record requested by applicant.
Decision dateSep 13, 2011Decision remanded.

Cite for

Due Process Violations in Security Clearance Cases
Impact of Not Receiving Evidence Requests on Case Outcomes
Remand for Further Processing Due to Procedural Issues

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

Remanded

The appeal involved a denial of security clearance based on financial considerations under Guideline F. The Applicant argued that she was denied due process due to not receiving a request for additional evidence from the Judge. The Board found that the Judge's failure to communicate this request constituted a harmful error and remanded the case for further processing.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowShari Dam denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Due-process / fairness, raised by the applicantError sustained
Applicant contended that she was denied due process because she did not receive a communication from the Judge seeking additional evidence.
Mitigation wrongly applied / not applied, raised by the applicantError sustained
Applicant argued that the Judge erred in her application of the mitigating conditions.
Decision arbitrary, capricious, or contrary to law, raised by the applicantError sustained
Applicant claimed that the Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's ex parte request for additional evidence was not communicated to the Applicant, which adversely affected her ability to respond and present her case. The Board concluded that remanding the case for further processing was the appropriate resolution.

Ignored material evidence

On remand, the judge must

The Judge must further process the case considering the evidence that Applicant would have provided had she received the request for additional information.

Standard of review applied

Harmful-error gatekeeperProcedural compliance

Appeal Board panel

Michael Y. Ra’anan (Chair)
Jeffrey D. Billett
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: Judge sent ex parte request to Department Counsel seeking additional information from Applicant. The request never reached Applicant. Adverse decision remanded. CASE NO: 09-08295.a1 DATE: 09/13/2011 DATE: September 13, 2011 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-08295

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Tovah Minster, Esq., Department Counsel FOR APPLICANT Pro se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On July 8, 2010, 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 decision on the written record. On June 22, 2011, after considering the record, Administrative Judge Shari Dam 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 Applicant was denied due process; whether the Judge erred in her application of the mitigating conditions; and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. Consistent with the following, we remand the Judge’s decision.

FOOTNOTES

1 Department Counsel refers in footnotes to four appendices. However, there are no appendices in the appeal file. The Judge made the following pertinent findings of fact: Applicant works as a configuration analyst for a Defense contractor. She has a Master’s degree in Management of Information Systems. She has three adult children from a previous marriage. In the Analysis portion of the Decision, the Judge summarized her essential finding concerning Applicant’s financial condition: In July 2003, Applicant had approximately $238,000 of delinquent debt discharged through bankruptcy. Since then, she has accumulated about $38,000 in delinquent debts, of which approximately $33,000 [remain] unresolved. Decision at 4. The Judge noted Applicant’s medical problems and family issues which affected her debt situation and which were circumstances outside her control. However, the Judge also concluded that Applicant did not submit evidence of debt repayment, credit counseling, or other circumstances sufficient to mitigate the security concerns raised by her financial problems. Accordingly, the Judge denied Applicant a security clearance. Applicant contends that she was denied due process. Specifically, she states that she never received a communication from the Judge that sought additional evidence to that contained in her reply to the SOR, her answers to DOHA interrogatories, and her response to the File of Relevant Material (FORM). We have considered the arguments contained in Applicant’s Appeal Brief and in Department Counsel’s Reply Brief.1 A letter from DOHA accompanying the SOR advised Applicant of her right to request either a hearing or a decision on the written record. Applicant chose the latter. DOHA subsequently provided Applicant a copy of the FORM and advised her of her right “submit any material” that she wished for the Judge to consider, “or to make any objections” she may have as to the contents of the FORM. DOHA Letter to Applicant, November 20, 2010. This letter also advised Applicant was her right to be represented by counsel. Applicant responded to the FORM within the required period of time. Her submission was made part of the record. On March 10, 2011, the Judge sent an ex parte e-mail to Department Counsel, directing Department Counsel to seek further information from Applicant. The information that the Judge desired was an exhibit documenting the status of each debt and receipts for debts that had been repaid, each exhibit referencing a debt alleged in the SOR. There is no copy of any correspondence to Applicant in the Hearing Office file. According to Department Counsel’s Reply Brief, Department Counsel mailed the Judge’s instruction to Applicant’s last known address. However, as Department Counsel averred in her Reply Brief, Applicant had since moved without providing a forwarding address, and the Judge’s request never reached her. In the Decision, the Judge commented on Applicant’s failure to provide the requested information. The Judge stated that, despite Applicant’s knowledge that her debts were of security significance, and despite her having been given another opportunity, on March 10, 2011, to submit additional mitigating evidence, “she did not provide documentary proof to corroborate the statements in her answer or interrogatories that many debts were paid.” Decision at 6. Accordingly, the Judge denied Applicant

2 Department Counsel did not object to the Judge’s ex parte request for evidence at that juncture. Nor did she file a cross-appeal. Therefore, the issue of the propriety of the Judge’s effort to supplement the record is not before us. a security clearance. Under the circumstances, it is reasonable for Applicant to believe that her failure to respond to the Judge’s instructions had an adverse impact on the final result in her case.2 She has attached to her appeal brief documents which she would have provided to the Judge had she received the March 10, 2011, request. Given the totality of unique circumstances, we conclude that the best resolution of this case is to remand it to the Judge for further processing. Order The Judge’s adverse security clearance decision is REMANDED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board