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ISCR 12-09421.a1: Guideline F security clearance appeal (2017) · CASE

ISCR Case 12-09421.a1unknown

Case headnote

ISCR Case No. 12-09421.a1

Nov 15, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves an applicant who, representing himself, was denied a security clearance under Guideline F (Financial Considerations) due to various financial issues. These issues included a history of failing to file state income tax returns and the presence of a federal tax lien.

The judge determined that the applicant did not adequately mitigate the security concerns, citing a long history of untimely tax filings and payments. While Disqualifying Condition F1 was raised, Mitigating Condition F3 was applied.

Ultimately, the appeal board remanded the case for further review. The board sought to determine if the applicant had received proper notice of new adjudicative guidelines before the hearing and if he had been provided with a copy of the hearing transcript. No final outcome on the clearance decision has been reached.

Conditions referenced

Disqualifying

F1raisedFinancial ConsiderationsThe applicant had multiple tax delinquencies and a federal tax lien.

Mitigating

F3notedFinancial ConsiderationsThe applicant was not provided adequate notice of new guidelines that could mitigate his financial issues.

Key rule quoted

“Bias involves partiality for or against a party, predisposition to decide a case or issue without regard to the merits, or other indicia of a lack of impartiality.”
ISCR Case No. 08-01306 at 4 (App. Bd. Oct. 28, 2009)

Procedural posture

SOR issuedSep 28, 2016
Answer filed—
Hearing heldAug 18, 2017
Decision dateNov 15, 2017Appeal remanded for further review.

Cite for

Remand for Determination of Notice Adequacy Under New Guidelines
Consideration of Bias Claims in Administrative Hearings
Impact of New Adjudicative Guidelines on Financial Considerations

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 a security clearance based on financial considerations under Guideline F. The Applicant claimed bias and that the Judge's decision was arbitrary and capricious. The Board remanded the case to determine if the Applicant was adequately notified of new guidelines prior to the hearing.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPaul J. Mason denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant claimed the Judge's adverse decision was arbitrary, capricious, or contrary to law.
Judge bias or partiality, raised by the applicantRejected
Applicant claimed the Judge was biased against him.
No specific harmful error alleged, raised by the applicantNot reached
Applicant alleged no specific harmful error regarding the notice of new guidelines.

Why the Board ruled this way

The Board remanded the case for the Judge to determine if the Applicant received adequate notice of the new adjudicative guidelines prior to the hearing, as the record did not clarify this issue. The Board also noted that the Applicant claimed he did not receive a copy of the hearing transcript, which is required by the Directive.

Other

On remand, the judge must

The Judge must determine whether Applicant was provided adequate notice of the new adjudicative guidelines prior to the hearing. If not, the Judge should reopen the record, provide the new guidelines to Applicant, and allow evidence to be presented under the new guidelines.

Standard of review applied

No de-novo re-decisionNo new evidence on appealProcedural compliance

Appeal Board panel

Michael Ra’anan (Chair)
William S. Fields
James F. Duffy

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: New national security adjudicative guidelines became effective on June 8, 2017, which was 21 days before Applicant’s hearing was held. Applicant claims that he first became aware of the new adjudicative guideline when he read the Judge’s decision. We conclude the best course of action is to remand the case to the Judge for him to determine whether Applicant was provided adequate notice of the new adjudicative guidelines prior to the hearing. Adverse decision remanded. CASENO: 12-09421.a1 DATE: 11/15/2017 DATE: November 15, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-09421

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 September 28, 2016, DoD 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 August 18, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Paul J. Mason 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 and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we remand the case to the Judge. The SOR alleged that Applicant failed to file his state income tax returns for 1998, 2000, 2002, 2003, and 2004; that he owed delinquent state taxes for 2001, 2002, 2004, 2005, and 2008; that he had a Federal tax lien entered against him in 2011; that he was indebted on a collection account and a charged-off account; and that he was charged with false info to increase benefits, pled guilty, and agreed to pay back the amount of unemployment benefits he was not entitled to receive. In his Answer to the SOR, Applicant denied that he owed delinquent state taxes for 2001 and 2005 and that he owed the Federal tax lien. He admitted the other SOR allegations with explanations. The Judge found in favor of Applicant on most of the SOR allegations and against him on four allegations. In determining that Applicant did not mitigate the security concerns, the Judge stated that he was unable to conclude that Applicant’s financial problems are unlikely to recur given his long history of not filing and paying his taxes in a timely manner. Applicant claims the Judge was biased against him. He argues the Judge’s behavior towards him was “accusatory” and was “meant to purposely intimidate and confuse him.” Appeal Brief at 1. There is a rebuttable presumption that an administrative judge is fair and impartial, and a party seeking to rebut that presumption has a heavy burden of persuasion on appeal. See, e.g., ISCR Case No. 08-01306 at 4 (App. Bd. Oct. 28, 2009). Bias involves partiality for or against a party, predisposition to decide a case or issue without regard to the merits, or other indicia of a lack of impartiality. Id. Bias is not demonstrated merely because a party can demonstrate a Judge committed a factual or legal error. The standard is not whether a party personally believes a Judge was biased or prejudiced against that party, but whether the record of the proceedings below contains any indication that the Judge acted in a manner that would lead a reasonable, disinterested person to question the fairness and impartiality of the Judge. Id. Applicant’s claim of bias is not persuasive. While the Judge stopped Applicant’s opening statement because he began presenting evidence, asked Applicant pointed questions, and made some abrupt comments during the hearing, our review of the transcript does not reveal that the Judge acted in a manner that would cause a reasonable person to question his impartiality. New national security adjudicative guidelines became effective on June 8, 2017, which was 21 days before Applicant’s hearing was held.1 Applicant claims that he first became aware of the new adjudicative guideline when he read the Judge’s decision. He contends that he was not informed of the new guidelines or given an opportunity to review them. The record reflects that he was provided a copy of the Directive when he received the SOR in September 2016, which was before the new guidelines were issued. The record does not reflect that Applicant was provided a copy of the new guidelines before the hearing. We note the new guidelines contain a new 1 Directive, Encl. 2. mitigating condition that specifically addresses tax delinquencies, and the Judge applied that new mitigating condition in rendering his decision.2 The Appeal Board does not have fact-finding powers. See, e.g., ISCR Case No. 14-02394 at 3 (App. Bd. Aug. 17, 2015). We are unable to determine whether Applicant was provided adequate notice of the new adjudicative guidelines so that he had an opportunity to present evidence under those guidelines. Consequently, we conclude the best course of action is to remand the case to the Judge for him to determine whether Applicant was provided adequate notice of the new adjudicative guidelines prior to the hearing. If Applicant did not receive such notice, the Judge should reopen the record, ensure Applicant is provided a copy of the new adjudicative guidelines, give the parties an opportunity to present evidence under the new guidelines, and issue a new decision in accordance with the Directive. We also note that Applicant claims he did not receive a copy of the transcript of the hearing. Directive ¶ E3.1.24 provides that Applicant shall receive a copy of the transcript, less the exhibits, without cost. The Hearing Office should ensure that Applicant was provided a copy of the transcript. Applicant raised other issues that are not ripe for consideration. 2 Directive, Encl. 2, App. A. ¶ 20(g).

ORDER

The Decision is REMANDED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board