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:
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Applicant for Security Clearance
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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.
1Department 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
2Department 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