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ISCR Case 06-07292.a1 — CASE

ISCR Case 06-07292.a1unknown

Case Headnote

ISCR Case No. 06-07292.a1

Apr 16, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

This case involved an applicant, represented by counsel, seeking a security clearance under Guideline B (Foreign Influence) and Guideline E (Personal Conduct). The Appeal Board remanded the case for a new decision, finding that the Judge's initial favorable ruling under Guideline B was arbitrary and capricious.

The primary reason for the remand was the Judge's failure to adequately address security concerns related to the applicant's husband, whose own security clearance had been denied. This oversight led to the determination that the decision under Guideline B was not sufficiently reasoned.

While Disqualifying Condition 7(d) was raised, Mitigating Conditions 1, 2, 3, and 4 were applied. However, due to the identified deficiencies in considering the husband's security status, no final clearance outcome was reached, and the case was sent back for further review.

Conditions Referenced

Disqualifying

DC 7(d)raisedDisqualifying Condition 7(d)The Judge did not discuss the application of DC 7(d), even though such a discussion was warranted by the record.

Mitigating

MC 1notedMitigating Condition 1
MC 2notedMitigating Condition 2
MC 3notedMitigating Condition 3
MC 4notedMitigating Condition 4

Key Rule Quoted

“A Judge is required to 'examine the relevant data and articulate a satisfactory explanation for' the decision, 'including a rational connection between the facts found and the choices made.'”
— Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)

Procedural Posture

SOR issuedApr 12, 2007
Answer filed—
Hearing heldNov 27, 2007
Decision dateApr 16, 2008Remanded for new decision.

Cite For

Arbitrary and Capricious Standard in Security Clearance Decisions
Inadequate Consideration of Relationships Impacting Security Clearance
Requirement for Comprehensive Analysis of Security Concerns Under Guideline B.

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 security clearance decision granted by the Administrative Judge, which was challenged by Department Counsel on the grounds that the Judge failed to apply Guideline B Disqualifying Condition 7(d) and did not adequately address security concerns regarding the Applicant's relationship with her husband. The Board found merit in the appeal and remanded the case for a new decision.

Appealed bythe Government (Department Counsel)

Applicant representationAttorney

Judge belowDarlene Lokey Anderson — granted the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the Government (Department Counsel)Error sustained
The Judge erred by not applying Guideline B Disqualifying Condition 7(d) and did not adequately address the security concerns related to the Applicant's relationship with her husband.

Why the Board ruled this way

The Board found that the Judge's decision was arbitrary and capricious due to the failure to apply relevant disqualifying conditions and adequately address security concerns related to the Applicant's relationship with her husband.

Ignored material evidence

On remand, the judge must

The Judge should issue a new decision that discusses the application of Guideline B Disqualifying Condition 7(d) in light of the findings regarding the Applicant's husband.

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 Y. Ra’anan
William S. Fields
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 B; Guideline E DIGEST: The Judge did not address the security concerns presented by Applicant’s husband. The Judge should issue a new decision. Favorable decision remanded. CASENO: 06-07292.a1 DATE: 04/16/2008 DATE: April 16, 2008 In Re: ---------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-07292

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Candace L. Le’i, Esq., Department Counsel FOR APPLICANT Sheldon I. Cohen, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On April 12, 2007, DOHA issued a statement of reasons advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence) and Guideline E The Judge’s favorable finding under Guideline E is not challenged on appeal. (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On November 27, 2007, after the hearing, Administrative Judge Darlene Lokey Anderson 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 raised the following issue on appeal: whether the Judge’s favorable security clearance decision under Guideline B is arbitrary, capricious, or contrary to law. Finding error, we remand the case to the Judge for the issuance of a new decision. Whether the Record Supports the Judge’s Factual Findings A. Facts The Judge made the following relevant findings of fact related to the Guideline B allegations: Applicant’s husband was a dual citizen of the United States and Israel, but has now surrendered his Israeli passport and renounced his Israeli citizenship. Applicant’s mother-in-law and sister-in-law are citizens and residents of Israel. They do not speak English and Applicant’s Hebrew is very limited. Therefore, although Applicant’s husband speaks with his mother and sister on a regular basis, Applicant, for the most part, is unable to communicate with them. 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 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 finding 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. To the extent that the Judge’s findings are relevant to the assigned error, they will be discussed below. Whether the Record Supports the Judge’s Ultimate Conclusions A Judge is required to “examine the relevant data and articulate a satisfactory explanation for” the decision, “including a ‘rational connection between the facts found and the choices made.’” “[S]haring living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure, or coercion.” See Decision at 6. In her reply brief, Applicant’s counsel points out that Department Counsel did not argue for the applicability of DC 7(d) at the time of the hearing in either her opening or closing statements. However, Applicant’s contention in that regard is of no moment. As in all cases, the Judge was obligated to consider the record evidence as a whole in conjunction with all pertinent conditions and factors. Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). “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). The Appeal Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary, capricious, or contrary to law. Directive ¶¶ E3.1.32.3 and E3.1.33.3. In deciding whether the Judge's rulings or conclusions are arbitrary or capricious, the Board will review the Judge's decision to determine whether: it does not examine relevant evidence; it fails to articulate a satisfactory explanation for its conclusions, including a rational connection between the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere difference of opinion. In deciding whether the Judge's rulings or conclusions are contrary to law, the Board will consider whether they are contrary to provisions of Executive Order 10865, the Directive, or other applicable federal law. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). Department Counsel argues that the Judge erred in not applying Guideline B Disqualifying Condition (DC) 7(d). Department Counsel also argues that the Judge erred in her analysis of the government’s security concerns by focusing only on Applicant’s relationship with her in-laws, instead of broadening that analysis to include the relationship between Applicant and her husband, whose clearance she denied. It is Department Counsel’s contention that this error is harmful because the security concerns presented by the independent, disqualifying relationship between Applicant and her husband could not be mitigated under the rationale given by the Judge in her decision.3 Department Counsel’s argument has merit. In her decision, the Judge only applied DC 7(a), and analyzed Applicant’s situation only in the limited context of the security concerns presented by her relationship with her in-laws. The Judge did not discuss the application of DC 7(d), even though such a discussion was warranted by the record, and did not reasonably address the security concerns presented by the relationship between Applicant and her husband, whose clearance the Judge denied. Accordingly, the Judge’s favorable clearance decision is not sustainable. The Judge should issue a new decision which discusses the application of DC 7(d) in light of the Judge’s ultimate findings and conclusions with regard to Applicant’s husband.

ORDER

The Judge’s favorable security clearance decision is REMANDED. Signed:Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board