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ISCR Case 07-05809.a1 — CASE

ISCR Case 07-05809.a1denied

Case Headnote

ISCR Case No. 07-05809.a1

May 27, 2008· Hon. Jean E. Smallin· appeal

Summary

An applicant, representing himself, was denied a security clearance primarily due to concerns under Guideline B (Foreign Influence). The denial stemmed from the applicant's close family ties in Ukraine, which raised significant security risks.

While the applicant had favorable findings under Guideline C (Foreign Preference), these were insufficient to overcome the government's concerns regarding potential foreign influence. The Appeal Board affirmed the denial, emphasizing the potential for coercion given the applicant's family connections and the paramount need for national security considerations.

Ultimately, the applicant failed to demonstrate that any mitigating evidence outweighed the government's concerns under Guideline B, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG B1raisedForeign Influence

Mitigating

AG C1appliedForeign Preference

Key Rule Quoted

“Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation.”

Procedural Posture

SOR issuedAug 28, 2007
Answer filed—
Hearing heldFeb 21, 2008
Decision dateMay 27, 2008

Cite For

Security Concerns Under Guideline B Due to Foreign Influence
Burden of Proof Shifts to Applicant to Establish Mitigation
Consideration of Family Ties in Foreign Countries as a Disqualifying Factor

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 an applicant seeking a security clearance who was denied based on security concerns under Guideline B and C. The applicant argued that he was denied due process and that the Judge's decision was arbitrary and capricious. The Board affirmed the denial, finding no error in the Judge's decision-making process and reasoning.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPaul J. Mason — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline BGuideline C

What the Board reviewed

Due-process / fairness — raised by the applicantRejected
Applicant argued that he was denied due process due to an incomplete investigation.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse decision under Guideline B was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision, affirming the denial of the security clearance based on the evidence presented and the Judge's reasoning regarding the applicant's ties to family members in Ukraine.

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 calls

Appeal Board panel

Michael D. Hipple
Jean E. Smallin
William S. Fields

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: The method and scope of background investigations are outside the scope of review of the Appeal Board. There is a rebuttable presumption that a Judge is unbiased and impartial. Adverse decision affirmed. CASENO: 07-05809.a1 DATE: 05/27/2008 DATE: May 27, 2008 In Re: ---------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-05809

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 28, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of The Judge’s favorable findings under Guideline C and SOR paragraph 1(b) are not at issue on appeal. the basis 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 February 21, 2008, after the hearing, Administrative Judge Paul J. Mason denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.1 Applicant raised the following issues on appeal: whether Applicant was denied due process; and whether the Judge’s adverse security clearance decision under Guideline B is arbitrary, capricious, or contrary to law. Finding no error, we affirm. (1) Applicant argues that he was denied due process because he did not receive a full investigation of the case, and a fair and impartial common sense determination based upon a totality of the evidence. The Board does not find this argument persuasive. The method and scope of background investigations are outside the scope of review of the Appeal Board. See, e.g., ISCR Case No. 99-0293 at 4 (App. Bd. May 5, 2000). The hearing is the Applicant’s opportunity to produce other evidence beyond that developed by his background investigation for the purpose of rebutting, explaining, extenuating, or mitigating facts to which he has admitted or which have been proven by Department Counsel. See, e.g., Directive ¶ E3.1.15. The Judge is then duty bound to consider all of the evidence developed on the record of the case before him. Any attempt on the part of the Judge to independently investigate allegations or develop facts would, of course, conflict with the Judge’s role as an impartial fact finder. See, e.g., ISCR Case No. 02-32606 at 3 (App. Bd. Jan. 21, 2004). There is a rebuttable presumption that a Judge is impartial and unbiased, and a party seeking to rebut that presumption has a heavy burden of persuasion. See, e.g., ISCR Case No. 02-08032 at 4 (App. Bd. May 14, 2004). The issue is not whether Applicant personally believes the Judge was biased or unfair. Rather, the issue is whether the record contains any indication the Judge acted in a manner that would lead a reasonable person to question the fairness and impartiality of the Judge. See, e.g., ISCR Case No. 01-04713 at 3 (App. Bd. Mar. 27, 2003). Lack of partiality is not demonstrated merely because the Judge made adverse findings or reached unfavorable conclusions. See, e.g., ISCR Case No. 94-0954 at 4 (App. Bd. Oct. 16, 1995). Applicant has not met the heavy burden of persuasion noted above, in that he fails to identify anything in the record below that indicates or suggests a basis for a reasonable person to question the fairness, impartiality, or professionalism of the Judge. See, e.g., ISCR Case No. 03-00740 at 2 (App. Bd. Jun. 6, 2006). (2) Applicant also argues that the favorable evidence in the record was sufficient, as a matter of law, to overcome any security concerns presented by his close ties to family members in Ukraine. The Board does not find this argument persuasive. Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The presence of some mitigating evidence does not alone compel the Judge to make a favorable clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. An applicant’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-24013 at 2-3 (App. Bd. Mar. 4, 2008). A review of the Judge’s decision indicates that the Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying circumstances, and considered the possible application of relevant mitigating conditions and factors. The Judge found in favor of Applicant under Guideline C and SOR paragraph 1(b). However, he reasonably explained why the evidence which Applicant had presented in mitigation was insufficient to overcome all of the government’s security concerns under Guideline B. The Judge’s decision exhibits a discerning weighing of a number of variables to reach a commonsense determination. Directive ¶ E2.2. In some instances, as noted earlier, this process led to favorable findings for Applicant. But, the Judge also articulated a reasonable concern that Applicant's circumstances created a conflict of interest that could potentially make him vulnerable to coercion, exploitation or pressure. That concern is based on close family ties in Ukraine, considered in the context of the overall political/security profile of that country vis-a-vis the United States. Applicant offers an alternative interpretation of the record evidence. However, that alternative interpretation of the record evidence is insufficient to render the Judge’s interpretation arbitrary, capricious or contrary to law. See, e.g., ISCR Case No. 03-19101 at 2 (App. Bd. Oct. 13, 2006). The Judge has articulated a rational explanation for his unfavorable determination under the disqualifying and mitigating factors and the whole-person concept, and there is sufficient record evidence to support that determination—given the standard that required the Judge to err on the side of national security. See, e.g, ISCR Case No. 06-04371 at 3 (App. Bd. Oct. 18, 2007).

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board