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ISCR 04-12680.a1: Guideline E security clearance appeal (2007) · CASE

ISCR Case 04-12680.a1unknown

Case headnote

ISCR Case No. 04-12680.a1

May 21, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves an applicant, representing himself, who sought a security clearance under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The appeal board remanded the case for a new decision, finding that the judge's credibility determination was not supported by substantial evidence.

The board noted that the judge's assessment of the applicant's credibility was based solely on a written record, which precluded an evaluation of the applicant's demeanor. This lack of direct observation was a key factor in the board's decision.

Furthermore, the judge's findings did not adequately address contrary evidence, specifically concerning the applicant's understanding of application questions related to prior arrests. Due to these issues, the appeal board determined that the judge's findings were not sufficiently supported, leading to the remand and no final outcome at this stage.

Conditions referenced

Disqualifying

E2.A2.1raisedPersonal Conduct

Mitigating

E2.A2.2notedMitigating Conditions

Key rule quoted

“A credibility determination based solely on a written record is not entitled to the same deference on appeal as a credibility determination based on observation of a witness’s demeanor.”
ISCR Case 04-04302

Procedural posture

SOR issuedAug 3, 2005
Answer filed—
Hearing held—Written record case
Decision dateMay 21, 2007Remanded for new decision

Cite for

Credibility Determinations Based on Written Records
Substantial Evidence Standard in ISCR Cases
Importance of Demeanor in Credibility Assessments

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 favorable decision by an Administrative Judge granting the applicant a security clearance despite concerns under Guideline E and Guideline J. The Department Counsel appealed, arguing that the Judge's findings were not supported by substantial evidence and that the credibility determination was flawed. The Board found merit in these arguments and remanded the case for a new decision.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowShari Dam granted the clearance

Decided onthe written record

Guidelines belowGuideline EGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the Government (Department Counsel)Error sustained
The Judge's findings of fact were not supported by substantial evidence.
Credibility determination, raised by the Government (Department Counsel)Error sustained
The Judge improperly relied on a credibility determination without the opportunity to observe the applicant.
Mitigation wrongly applied / not applied, raised by the Government (Department Counsel)Error sustained
The Judge erred in her application of the Guideline E mitigating conditions.

Why the Board ruled this way

The Board found that the Judge's findings were not supported by substantial evidence and that the credibility determination was improperly made without observing the applicant. The Judge also misapplied the mitigating conditions under Guideline E.

Ignored material evidenceCredibility-deference error

On remand, the judge must

The Judge must issue a new decision that considers all record evidence regarding the applicant's knowledge and intent in response to Questions 24 and 26.

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 callsReduced credibility deference (written record)

Appeal Board panel

Michael Y. Ra’anan (Chair)
Jean E. Smallin
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 E; Guideline J DIGEST: A credibility determination based solely on a written record is not entitled to the same deference on appeal as a credibility determination based on observation of a witness’s demeanor. It is not clear from the decision or from the record why the Judge found Applicant’s explanation for his false statement credible. Favorable decision remanded. CASENO: 04-12680.a1 DATE: 05/21/2007 DATE: May 21, 2007 In Re: -------- SSN: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 04-12680

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Daniel F. Crowley, Esq., Department Counsel Kathryn D. MacKinnon, Esq., Deputy Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 3, 2005, DOHA issued a statement of reasons advising Applicant of the basis The Judge’s favorable decision under Guideline J is not at issue in this appeal. for that decision–security concerns raised under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On August 31, 2006, after considering the record, Administrative Judge Shari Dam granted Applicant’s request for a security clearance. Department Counsel filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raises the following issues on appeal: whether the Judge’s findings of fact are based upon substantial evidence; whether the Judge improperly relied upon a credibility determination rather than record evidence; and whether the Judge erred in her application of the Guideline E mitigating conditions. Finding error, we remand the case to the Judge. Whether the Record Supports the Judge’s Factual Findings A. Facts The Judge made the following findings of fact: In June 2001, Applicant was arrested and charged with DUI and with negligent operation of a vehicle. At trial he was acquitted of the DUI but convicted of negligent operation. He was fined. Additionally, his driver’s license was suspended for 90 days because he had refused to take a Breathalyzer. One month later, Applicant was arrested and charged with driving under a suspended license. Upon payment of court costs, the charge was dismissed. In May 2002, Applicant completed his security clearance application. Question 24 read: “Your Police Record - Alcohol/Drug Offenses: Have you ever been charged with or convicted of any offense(s) related to alcohol or drugs? For this item, report information regardless of whether the record in your case has been ‘sealed’ or otherwise stricken from the court record. The single exception to this requirement is for certain convictions under the Federal Controlled Substances Act for which the court issued and expungement order under the authority of 21 U.S.C 844 or 18 U.S.C 3607.” Applicant answered “no” to this question, despite his having been arrested and charged with DUI. Question 26 read “Your Police Record - Other Offenses: In the last 7 years have you been arrested for, charged with, or convicted of any offense(s) not listed [elsewhere on the application]? (Leave out traffic fines of less than $150 unless the violation was alcohol or drug related) For this item, report information regardless of whether the record in your case has been ‘sealed’ or otherwise stricken from the court record. The single exception to this requirement is for certain convictions under the Federal Controlled Substances Act for which the court issued an expungement order under the authority of 21 U.S.C. 844 or 18 U.S.C. 3607.” Applicant answered “no” to this question, despite having been arrested and charged with driving under a suspended license. The Judge went on to find, “Applicant did not disclose the two charges because he did not take enough time while completing the SCA to fully understand the scope of the questions, which included an inquiry into all matters, including arrests, regardless of the outcome. After re-reading both questions twice during his interview with the government’s investigator, he realized he should have disclosed the information.” Applicant holds a Bachelor of Science degree. Applicant Exhibit A at 1. B. Discussion The Appeal Board’s review of the Judge’s findings of facts is limited to determining if they are supported by substantial evidence–such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the record.” Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620-21 (1966). In evaluating the Judge’s findings, we are required to give deference to the Judge’s credibility determinations. Directive ¶ E3.1.32.1. Department Counsel challenges the findings placed in quotation marks above on the grounds that they are not supported by the record, viewed as a whole. Counsel observes that Questions 24 and 26 are clear in their meaning. Furthermore he cites Applicant’s age, his level of education, the complexity of his professional responsibilities, and his admission that he has held a clearance “for over 10 years” as reasons to believe Applicant was capable of understanding the questions. Department Counsel argues that the record demonstrates Applicant to be an individual “particularly capable” of understanding not only the SF86 but also his obligation to fill it out with due care, and to be forthcoming about even embarrassing events. Brief at 8. The Board finds Department Counsel argument persuasive. It is not clear from the decision or from the record why the Judge found Applicant’s explanation for his false statement to be credible. It is significant that, this case having been decided on the written record, the Judge did not have an opportunity to evaluate Applicant’s demeanor while testifying. See ISCR Case 04-04302 at (App. Bd. Jun. 30, 2005) (“[W]hen an applicant waives a hearing and chooses to have his or her case decided by a Judge based on a written record, the Judge has no ability to make a credibility determination based on observation of the applicant’s demeanor. Accordingly, a credibility determination based solely on a written record is not entitled to the same deference on appeal as a credibility determination based on observation of a witness’s demeanor.”) See also ISCR Case No. 97-0752 at 3 (App. Bd. Dec. 4, 1998); ISCR Case No. 97-0625 at 2-3 (App. Bd. Aug. 17, 1998). In addition to the contrary facts listed above, we also note that, in his response to the FORM, Applicant contends that the questions at issue are ambiguous, in that neither mention the terms “arrested” or “court appearances.” However, as the Judge’s own finding demonstrates, Question 26 does in fact explicitly use the term “arrested.” Her decision does not address this apparent inconsistency with Applicant’s response. Nor does it address another factor, raised implicitly in Applicant’s evidence attesting to his good job performance, that Applicant’s concern over his continued employment provides a possible motive for not answering the questions truthfully. All in all, the Judge’s decision does not reflect serious consideration of the contrary record evidence. Accordingly, we are unable to conclude that the challenged findings are supported by substantial Department Counsel challenges another statement by the Judge, found in her Conclusions section, in which she says, “Applicant’s explanation that he did not intentionally withhold information, but instead misunderstood the question, is reasonable, and not contradicted by any substantive evidence from the Government.” Decision at 5. The Judge has, through this sentence, effectively shifted the burden of persuasion to the Government. That is, the Judge’s decision seems to imply that Applicant’s denial of a knowing falsehood required the government to produce additional evidence on that point beyond that already contained in the record. The Government has no burden of persuasion in an ISCR case. See Directive ¶ E3.1.15. In any event, the Judge does not explain why those matters discussed in the text of this opinion do not, at least arguably, contradict Applicant’s denial. record evidence.4 We believe that the appropriate remedy in this case is to remand it to the Judge for a new decision, one in which her findings take into account all the record evidence on the question of Applicant’s knowledge and intent in his response to Questions 24 and 26. The decision should address those matters identified in this opinion as bearing on the issue, as well as any others fairly raised by the evidence. The remaining issues on appeal are not ripe for adjudication.

ORDER

The Judge’s decision granting Applicant a clearance is REMANDED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board