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ISCR Case 06-26489.a1 — CASE

ISCR Case 06-26489.a1denied

Case Headnote

ISCR Case No. 06-26489.a1

Jul 16, 2009· Hon. Jean E. Smallin· appeal

Summary

The applicant, a researcher and program manager for a government contractor, was denied a security clearance due to concerns under Guideline B (Foreign Influence), Guideline E (Personal Conduct), and Guideline K (Handling Protected Information). The denial stemmed primarily from the applicant's knowing and willful failure to report a romantic relationship with a Russian national.

This failure to report raised specific disqualifying conditions under AG ¶ 14, AG ¶ 15, and AG ¶ 16. The judge determined that the applicant did not mitigate the security risks associated with foreign influence, a finding supported by substantial evidence, including testimony from a security officer.

The appeal affirmed the initial denial, concluding there were no errors in the judge's analysis or evidentiary rulings. Consequently, the applicant's security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 14raisedForeign Influence
AG ¶ 15raisedPersonal Conduct
AG ¶ 16raisedHandling Protected Information

Key Rule Quoted

“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)

Procedural Posture

SOR issuedMay 22, 2008
Answer filed—
Hearing heldMar 31, 2009
Decision dateJul 16, 2009

Cite For

Knowing and Willful Failure to Report Foreign Contacts Under Guideline K
Insufficient Mitigation of Foreign Influence Concerns Under Guideline B
Affirmation of Evidentiary Rulings and Whole-person Analysis 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

Affirmed

The appeal involved a denial of a security clearance based on the Applicant's failure to report a foreign relationship. The Applicant argued that the Judge erred in her findings and application of mitigating conditions. The Board affirmed the decision, finding no harmful error in the Judge's conclusions.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJoan Caton Anthony — denied the clearance

Decided ona hearing

Guidelines belowGuideline KGuideline EGuideline B

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
The Judge erred in concluding that he had intentionally failed to report his contacts with Z.
Mitigation wrongly applied / not applied — raised by the applicantRejected
The Judge failed to properly apply the mitigating conditions.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge’s whole-person analysis was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Judge's findings and conclusions, affirming that the Applicant's failure to report his relationship was knowing and willful, and that the Judge's analysis was consistent with national security interests.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decision

Appeal Board panel

Jean E. Smallin
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 K; Guideline E; Guideline B DIGEST: Totality of record evidence demonstrates that Applicant’s failure to list his Russian associate was knowing and willful. Furthermore, Applicant failed to mitigate the Guideline B security concerns in his name. Adverse decision affirmed. CASENO: 06-26489.a1 DATE: 07/16/2009 DATE: July 16, 2009 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-26489

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Francisco Mendez, Esq., Department Counsel FOR APPLICANT Diana J. Veilleux, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On May 22, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline K (Handling Protected Information), Guideline E (Personal Conduct), and Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On March 31, 2009, after the hearing, Administrative Judge Joan Caton Anthony 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’s findings of fact are The Judge’s favorable finding under subparagraph 2(b), Guideline E, is not at issue in this appeal. supported by substantial record evidence; whether the Judge erred in her evidentiary rulings; whether the Judge failed to properly apply the mitigating conditions; and whether the Judge’s whole-person analysis was arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is a researcher, investigator, and program manager for a government contractor. He holds a Ph.D. in engineering. In the mid-1990s, Applicant met a woman, whom the Judge identified as “Z,” a citizen of Russia, who resided in a third country and was employed as a member of a university faculty. In early 2005, Applicant and Z began a romantic relationship. He made three personal trips to the third country to visit Z. In April 2005, Applicant’s employer briefed him on his duty to report foreign contacts, due to Applicant’s eligibility for special access. This briefing informed Applicant that he “must report all close and continuing relationships with foreign nationals.” Decision at 3. Although advised of this requirement, Applicant did not report his relationship with Z until November 2005. During their relationship, Applicant informed Z that he had access to classified information. In 2006 Applicant and Z married. Z is a dual citizen of Russia and the third country, as are her two daughters. She received her education in Russia. Her father and mother are residents and citizens of Russia. Both receive government pensions. Z also has a half-sister who is a citizen and resident of Russia. Z speaks with her parents weekly and with her sister approximately once every six months. She sends money to her parents on a monthly basis. At least since 1997, Russia has targeted U.S. technologies and has sought to obtain protected information through industrial espionage. The Russian Federal Security Service operates outside Russia by targeting national security and environmental researchers. The Russian government conducts electronics surveillance, including the monitoring of internet and e-mail traffic. After reviewing the record, the Board concludes that the Judge’s material findings are based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from the record. See Directive ¶ E3.1.32.1. (Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.”) Applicant states that the Judge erred in concluding that he had intentionally failed to report his contacts with Z. The Board notes the testimony of the security officer for Applicant’s employer. This person stated that she had briefed Applicant of his reporting requirements in April 2005, several months before he complied. Tr. at 38-41. This witness’s testimony, along with other record evidence, e.g., Applicant’s prior compliance with foreign contact reporting requirements (Tr. at 138), support a conclusion that his failure to report his relationship with Z was knowing and willful. The Judge’s conclusion, therefore, is sustainable. In support of his appeal, Applicant points to decisions by the Hearing Office, which he argues support his request for a favorable determination. The Board gives due consideration to these cases. However, each case “must be decided upon its own merits.” Directive ¶ E2.2.3. Moreover, Hearing Office decisions are binding neither on other Hearing Office Judges nor on the Board. See ISCR Case No. 06-24121 at 2 (App. Bd. Feb. 5, 2008). The Board finds no basis to disturb the Judge’s evidentiary rulings. See ISCR Case No. 03-08813 at 5 (App. Bd. Nov. 15, 2005) (The Board will examine a Judge’s evidentiary rulings to determine if they are consistent with Executive Order 10865 and with the Directive and to determine if they are arbitrary, capricious, or contrary to law.). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made,’” both as to the mitigating conditions and the whole-person 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 Judge’s decision that “it is not clearly consistent with national security to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 12. See also Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin 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