Loading case…

ISCR 06-17001.a1: Guideline B security clearance appeal (2007) · CASE

ISCR Case 06-17001.a1unknown

Case headnote

ISCR Case No. 06-17001.a1

Jul 24, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves an applicant, representing himself, who sought a security clearance under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The appeal centered on the judge's failure to adequately consider the geopolitical situation in Nigeria, which was deemed crucial for assessing the credibility of the favorable decision made under Guideline C.

Specifically, the judge applied a mitigating condition under Guideline C, but the appeal argued this was flawed due to the lack of analysis regarding Nigeria's political conditions. A disqualifying condition under Guideline B was also raised.

Ultimately, no final outcome was reached on the security clearance. The case was remanded for a new opinion. This new opinion must include a detailed analysis of the political conditions in Nigeria and how they affect the applicant's eligibility for a security clearance, thereby addressing the initial oversight.

Conditions referenced

Disqualifying

AG B1raisedForeign InfluenceThe judge's findings did not adequately address security concerns related to the applicant's foreign connections.

Mitigating

AG C1appliedForeign PreferenceThe judge granted a favorable decision under Guideline C, which was not contested on appeal.

Key rule quoted

“Guideline B cases should be made to the greatest extent possible in the context of current political conditions in the country at issue.”
ISCR Case No. 05-11292 at 4 (App. Bd. Apr. 12, 2007)

Procedural posture

SOR issuedAug 3, 2006
Answer filed—Applicant represented himself.
Hearing heldDec 29, 2006
Decision dateJul 24, 2007Case remanded for further analysis.

Cite for

Impact of Geopolitical Conditions on Security Clearance Decisions
Credibility of Decisions Under Guideline C Affected by External Factors
Importance of Detailed Findings in Security Clearance Cases

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 granting the Applicant a security clearance, which was challenged by Department Counsel on the grounds of insufficient factual findings regarding the political situation in Nigeria. The Board found merit in the appeal and remanded the case for a new opinion that adequately addresses the geopolitical context and the whole person analysis.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowDarlene Lokey Anderson granted the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline C

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the Government (Department Counsel)Error sustained
The Judge's application of Foreign Influence Mitigating Condition 1 is not supported by record evidence.
Decision arbitrary, capricious, or contrary to law, raised by the Government (Department Counsel)Error sustained
The Judge's whole person analysis is not supported by record evidence.

Why the Board ruled this way

The Board found that the Judge's failure to make factual findings about the geopolitical situation in Nigeria undermined the credibility of her decision, necessitating a remand for further analysis.

Ignored material evidence

On remand, the judge must

The Judge should provide a more detailed analysis under both Guideline B and the 'whole person', explicitly considering the political situation in Nigeria and detailing Applicant's pertinent qualities and circumstances.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

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 C; Guideline B DIGEST: Guideline B cases should be resolved to the greatest extent possible in the context of the current political conditions in the country at issue. The Judge’s failure to make any factual findings about the situation in Nigeria vitiates the credibility of her decision. Favorable decision remanded. CASENO: 06-17001.a1 DATE: 07/24/2007 DATE: July 24, 2007 In Re: ------- SSN: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-17001

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Melvin A. Howry, Esq., Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 3, 2006, DOHA issued a statement of reasons advising Applicant of the basis The Judge’s favorable decision under Guideline C is not at issue in this appeal. Directive ¶ E2.A2.1.3.1: “A determination that the immediate family member(s) . . . in question are not agents of a foreign power or in a position to be exploited by the foreign power in a way that could force the individual to choose between loyalty to the person(s) involved and the United States ...” for that decision–security concerns raised under Guideline C (Foreign Preference) and Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On December 29, 2006, 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 issues on appeal: whether the Judge’s application of Foreign Influence Mitigating Condition (FIMC) 1 is not supported by record evidence and therefore arbitrary, capricious, and contrary to law; and whether the Judge’s whole person analysis is not supported by record evidence and therefore arbitrary, capricious, and contrary to law. Finding error, we remand the case to the Judge. Department Counsel implicitly challenges the sufficiency of the Judge’s findings in his argument that the Judge’s failure to make findings of fact concerning the geopolitical situation in Nigeria impairs her analysis of FIMC 1 as well as of the whole person. Department Counsel contends that such record evidence as “the deteriorating security situation in Nigeria,” human rights abuses, and government corruption raise security concerns which the Judge’s decision fails adequately to address. Department Counsel’s argument is persuasive. “Guideline B cases should be made to the greatest extent possible in the context of current political conditions in the country at issue.” ISCR Case No. 05-11292 at 4 (App. Bd. Apr. 12, 2007). The Judge’s failure to make any factual finding at all about the political situation in Nigeria vitiates the credibility of her favorable decision. Therefore, we remand the case to the Judge for a new opinion. The new opinion should include a more detailed analysis under both Guideline B and the “whole person,” which explicitly takes into account the situation existing in Nigeria insofar as it has a bearing on Applicant’s eligibility to hold a clearance. Further, it should, as appropriate, detail and explain Applicant’s pertinent qualities, characteristics, and circumstances which are the basis for the Judge’s ultimate decision. The other issues raised on appeal are not ripe for consideration.

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