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ISCR Case 15-00022.a1 — CASE

ISCR Case 15-00022.a1denied

Case Headnote

ISCR Case No. 15-00022.a1

Jul 11, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing herself, was denied access to national security information under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial stemmed from two primary issues: unresolved delinquent debts and contradictory statements made during financial disclosures.

Specifically, the applicant had numerous outstanding delinquent debts that remained unresolved. Furthermore, the judges found her explanations regarding her financial situation to be inconsistent, raising concerns about her candor and reliability. These issues invoked disqualifying conditions F.1 and E.2.

Ultimately, the applicant failed to demonstrate an established track record of fiscal responsibility, and her inconsistent statements led to doubts about her suitability for a security clearance. The judges concluded that these factors warranted a denial.

Conditions Referenced

Disqualifying

F.1raisedFinancial Considerations
E.2raisedPersonal Conduct

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 issuedJun 22, 2015
Answer filed—Applicant represented herself (pro se).
Hearing heldApr 25, 2016
Decision dateJul 11, 2016

Cite For

Contradictory Statements Regarding Financial Disclosures Under Guideline F
Importance of Fiscal Responsibility in Security Clearance Determinations
Burden of Proof Regarding Claims of Judicial Bias in Security Clearance Hearings

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 and personal conduct. The applicant argued bias and procedural errors by the Judge. The Board affirmed the decision, finding no harmful errors and that the Judge's conclusions were supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCarol G. Ricciardello — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge's decision was arbitrary, capricious, or contrary to law.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argues that the Judge denied her an opportunity to present evidence.
Judge bias or partiality — raised by the applicantRejected
Applicant contends that the Judge was biased against her.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the applicant did not meet the burden of proving bias or procedural errors. The Judge's findings regarding the applicant's financial delinquencies were upheld as reasonable and consistent with national security interests.

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
James E. Moody
Catherine M. Engstrom

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 contends that the Judge was biased against her. While the Judge questioned Applicant throughout the hearing, sometimes a bit sharply, it appears to have been for the purpose of clarifying the record and assisting Applicant in articulating which debts she had paid. We find nothing in the record that would likely persuade a reasonable person that the Judge lacked the requisite impartiality. Adverse decision affirmed. CASE NO: 15-00022.a1 DATE: 07/11/2016 DATE: July 12, 2016 In Re: ------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-00022

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On June 22, 2015, DoD 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 April 25, 2016, after the hearing, Defense Office of Hearings and Appeals (DOHA) 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 the Judge was biased against her; whether the Judge denied her an opportunity to present evidence; and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant was unemployed from mid 2009 to late 2010, and from late 2012 to late 2013. Applicant’s husband was unemployed due to a serious medical condition from 2009 to 2013. Applicant and her husband are both working now. In 2014 Applicant completed her security clearance application (SCA). Applicant answered “no” to Question 26 requiring her to disclose any financial delinquencies. When Applicant was interviewed by an Office of Personnel Management (OPM) investigator in 2014, she indicated that she had some previous financial difficulties but did not feel there were any accounts that needed to be reported on the SCA. At the DOHA hearing, Applicant said she did not know why she told the OPM investigator that she did not feel she needed to report any delinquent accounts. Applicant testified that she completed the SCA at a library and only had an hour to finish it. Applicant further testified that she answered “no” to all the questions concerning financial difficulties and delinquent debts and attempted to go back and change her answer on the SCA, but the program would not let her do so. She stated that she was concerned that the program would erase all her previous answers. Applicant testified that she regretted her mistake; and at the time she completed the SCA, she was aware that she had delinquent debts. Applicant stated that many of the debts were incurred when her husband became ill in 2009 and she had been attempting to resolve her financial situation since then. The Judge’s Analysis The Judge found Applicant has numerous delinquent debts that remain unresolved. Applicant did not provide sufficient evidence to show she has an established track record of being fiscally responsible. Applicant’s explanations as to why she did not disclose her numerous debts on her 2014 SCA were contradictory. Applicant’s omissions of her delinquent debts were deliberate. The Judge noted inconsistencies between Applicant’s explanation of her SCA answer during the security clearance interview, and her explanation of same during her hearing testimony. The Judge concluded that the record left her with doubts about Applicant’s fitness for access to national security information. Although the Judge found in Applicant’s favor on five of the debts alleged in the SOR, she found against her on the other seven debts, one of which totaled over $40,000.

DISCUSSION

Applicant contends that the Judge was biased against her. She states that the hearing was an interrogation and the Judge upset her by making “constant insinuations.” Applicant suggests that she felt precluded from offering mitigating evidence such as the reason for her financial difficulties, i.e., her husband’s illness, the fact that she has paid off the debts, and her high credit rating. A party who argues that a Judge is biased has a “heavy burden of persuasion” on appeal. See, e.g., ISCR Case No. 14-06440 at 3 (App. Bd. Jan. 8, 2016) (citing ISCR Case No. 14-03108 at 3 (App. Bd. May 20, 2015)). Applicant states that she has a spotless record but admits she made a mistake by answering “no” to her financial delinquencies on her SCA. While the Judge questioned Applicant throughout the hearing, sometimes a bit sharply, it appears to have been for the purpose of clarifying the record and assisting Applicant in articulating which debts she had paid. We find nothing in the record that would likely persuade a reasonable person that the Judge lacked the requisite impartiality. Therefore, we conclude that Applicant has not met her heavy burden of persuasion. In her appeal, Applicant includes assertions that are outside the record. We cannot consider new evidence on appeal. Directive ¶ E3.1.29. Our examination of the record does not support Applicant’s suggestion that the Judge prevented her from presenting evidence. In fact, Applicant offered numerous documents, all of which were admitted. Tr. at 22-30, 31. In addition, the Judge questioned her not only regarding the allegations in the SOR but also about her biographical information, family circumstances, her education, her husband’s illness, her periods of unemployment, etc., all of which were relevant to a whole-person analysis. Tr. at 24-28. At the close of the hearing, she gave Applicant an opportunity to provide any other information that she thought relevant. Tr. at 84. Applicant subsequently submitted further documentation and the Judge admitted the documents and considered them. We find no reason to conclude that Applicant was denied an opportunity to present evidence. The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The decision is sustainable on this record. “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 also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”

ORDER

The Decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: Catherine M. Engstrom Catherine M. Engstrom Administrative Judge Member, Appeal Board