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ISCR Case 19-01666.a1 — CASE

ISCR Case 19-01666.a1denied

Case Headnote

ISCR Case No. 19-01666.a1

Apr 22, 2020· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance primarily due to admitted marijuana use while holding access to classified information, falling under Guideline H (Drug Involvement). The judge determined that none of the mitigating conditions for drug involvement applied to the applicant's specific circumstances.

The applicant appealed the denial, also raising concerns under Guideline B (Foreign Influence). However, the appeal board upheld the initial denial. The board found no evidence of bias in the judge's decision and concluded that the applicant failed to meet the burden of persuasion to demonstrate the judge's partiality or that the decision was arbitrary or capricious.

Despite character references submitted on his behalf, the applicant's admission of marijuana use while cleared for classified information, coupled with the inapplicability of mitigating factors and the failure to prove judicial bias, resulted in the denial of his security clearance.

Conditions Referenced

Disqualifying

AG ¶ 25raisedDrug Involvement

Mitigating

AG ¶ 26rejectedMitigating ConditionsThe judge concluded that none of the Guideline H mitigating conditions fully applied.

Key Rule Quoted

“There is a rebuttable presumption that a Judge is impartial and unbiased, and a party seeking to overcome that presumption has a heavy burden of persuasion.”
— ISCR Case No. 18-02722 at 5 (App. Bd. Jan. 30, 2020)

Procedural Posture

SOR issuedJun 26, 2019
Answer filed—
Hearing heldJan 28, 2020
Decision dateApr 22, 2020

Cite For

Rebuttable Presumption of Judicial Impartiality in Security Clearance Cases
Criteria for Evaluating Drug Involvement Under Guideline H
Standards for Appealing a Security Clearance Denial Based on Alleged Bias or Improper Consideration of Evidence.

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 was filed by the applicant after the Administrative Judge denied his request for a security clearance based on concerns under Guideline B and Guideline H. The applicant argued that the Judge was biased and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no merit in the applicant's claims.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDarlene D. Lokey Anderson — denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline H

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse decision was arbitrary, capricious, or contrary to law.
Judge bias or partiality — raised by the applicantRejected
Applicant argued that the Judge was biased against him.

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 arbitrary decision-making. The Judge's findings were consistent with the national security interests.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael Ra’anan — Chair
James E. Moody
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 B; Guideline H DIGEST: There is a rebuttable presumption that a Judge is impartial and unbiased, and a party seeking to overcome that presumption has a heavy burden of persuasion. We have examined the Decision in light of the record as a whole and find nothing that would likely convince a reasonable person that the Judge lacked the requisite impartiality. Applicant has not met his heavy burden of persuasion on this issue. Adverse decision is affirmed. CASE NO: 19-01666.a1 DATE: 04/22/2020 DATE: April 22, 2020 ) In Re: ) ) ---------------------- ) ISCR Case No. 19-01666

) ) Applicant for Security Clearance ) )

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 26, 2019, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). On October 17, 2019, Department Counsel amended the SOR by adding an allegation under Guideline H (Drug Involvement and Substance Misuse). Applicant requested a hearing. On January 28, 2020, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Darlene D. Lokey Anderson 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 him and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guideline B were not raised as an issue on appeal. Consistent with the following, we affirm. The Judge found against Applicant on the Guideline H allegation that asserted he used marijuana with varying frequency from about February 2017 to February 2018 while being granted access to classified information. In his response to the SOR, he admitted that allegation. Although he was aware that marijuana use was prohibited under Federal law, he obtained a doctor’s prescription for its use after a knee injury. “He did not report his marijuana use on his [December 2017] security clearance application because he did not see it as an issue.” Decision at 3. He submitted a Statement of Intent to refrain from marijuana use in the future. His manager, coworkers, and friends attest to his good character and recommend him for a security clearance. The Judge concluded that none of the Guideline H mitigating conditions fully applied. In his appeal brief, Applicant essentially contends that the Judge was biased against him. He argues that, while the Judge was overall very professional and courteous, she “demonstrated anger in her retorts and on the record interrupted the Applicant while attempting to speak on 7 separate occasions.” Appeal Brief at 2-3. He also noted the Judge was ready to close the hearing before providing him an opportunity to make a closing statement. There is a rebuttable presumption that a Judge is impartial and unbiased, and a party seeking to overcome that presumption has a heavy burden of persuasion. See, e. g., ISCR Case No. 18-02722 at 5 (App. Bd. Jan. 30, 2020). We have examined the Decision in light of the record as a whole and find nothing that would likely convince a reasonable person that the Judge lacked the requisite impartiality. Applicant has not met his heavy burden of persuasion on this issue. Applicant also contends that the Judge did not consider or properly weigh all relevant evidence. For example, he argues that the Judge overlooked his character evidence, his special knowledge that is critical to the Government, and his Statement of Intent to refrain from using marijuana in the future. He also highlights evidence that supports favorable findings on whole- person factors. His arguments, however, are neither enough to rebut the presumption that the Judge considered all of the record evidence nor sufficient to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 17-02488 at 3 (App. Bd. Aug. 30, 2018). Furthermore, the value of an applicant's expertise to a defense contractor is not a relevant or material consideration in determining his or her suitability for a security clearance. See, e.g., ISCR Case No. 99-9020 at 7 (App. Bd. Jun. 4, 2001). Applicant has failed to establish that the Judge committed harmful error in her analysis of the evidence, including her whole-person assessment. The Judge examined the relevant evidence 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 Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board