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ISCR Case 07-13010.a1 — CASE

ISCR Case 07-13010.a1denied

Case Headnote

ISCR Case No. 07-13010.a1

Jan 27, 2009· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, represented by counsel, was denied a security clearance under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The denial stemmed primarily from concerns regarding past drug use, specifically marijuana.

While the applicant demonstrated abstinence from marijuana since October 2006, the judge determined this period was insufficient to mitigate the security risks associated with prior drug involvement. The judge applied Disqualifying Condition H1 and considered Mitigating Condition H2 but ultimately found the evidence did not overcome the government's security concerns.

The decision to deny the clearance was upheld on appeal, with the reviewing authority concluding that the judge reasonably explained why the mitigating evidence did not adequately address the potential for recurrence of drug use.

Conditions Referenced

Disqualifying

H1raisedDrug Involvement

Mitigating

H2rejectedAbstinence From Drug UseThe judge found that the applicant's abstinence did not sufficiently mitigate the concerns.

Key Rule Quoted

“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)

Procedural Posture

SOR issuedMay 30, 2008
Answer filed—
Hearing heldOct 29, 2008
Decision dateJan 27, 2009

Cite For

Insufficient Evidence to Mitigate Drug Involvement Under Guideline H
The Weight of Mitigating Evidence Is Assessed Against Disqualifying Conduct
The Presumption That Judges Consider All Record Evidence Unless Stated Otherwise

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 concerns under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The Applicant argued that the Judge failed to consider evidence and misapplied mitigating factors. The Board affirmed the Judge's decision, finding no harmful error in the Judge's conclusions.

Appealed bythe applicant

Applicant representationAttorney

Judge belowElizabeth M. Matchinski — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline HGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge failed to consider record evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's application of the Guideline H mitigating conditions was arbitrary, capricious, or contrary to law.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant claimed that the Judge's whole-person analysis was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's conclusion regarding the Applicant's marijuana use was supported by the record and that the Judge properly weighed the evidence presented.

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 — Chair
Jeffrey D. Billett
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 H; Guideline E DIGEST: The Judge’s conclusion that, given the record, Applicant’s abstinence from marijuana use since October 2006 was not sufficient to guarantee against recurrence is supported by the record. Adverse decision affirmed. CASENO: 07-13010.a1 DATE: 01/27/2009 DATE: January 27, 2009 In Re: ------------------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-13010

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Kathryn D. MacKinnon, Esq., Deputy Chief Department Counsel FOR APPLICANT Henry A. Sullivan, Esq. and Kelley L. Finnerty, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security The Judge found in favor of Applicant regarding Guideline E. That portion of the case is not at issue on appeal. clearance. On May 30, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline H (Drug Involvement) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On October 29, 2008, after the hearing, Administrative Judge Elizabeth M. Matchinski denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issues on appeal: (a) whether the Judge failed to consider record evidence; (b) whether the Judge’s application of the Guideline H mitigating conditions is arbitrary, capricious, or contrary to law; and (c) whether the Judge’s whole-person analysis is arbitrary, capricious or contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable decision. A recurring theme in Applicant’s brief is his assertion that the Judge either overlooked or ignored facts in the evidentiary record when reaching her conclusions in the case. Applicant proffers this argument in the context of the Judge’s application of the Guideline H mitigating factors and in the context of the Judge’s application of the whole-person analysis. Some of the specific facts that Applicant maintains the Judge did not consider include Applicant’s decision to stop attending yearly reunions of his college friends where marijuana was smoked, some arguably less aggrevating aspects of his marijuana use, such as the facts that he never became dependent upon it and his use never affected his work, his substantial security industry experience, his professional accomplishments, his community involvement, and the testimony of Applicant’s Facility Security Officer that Applicant is an extremely reliable individual who takes his security duties seriously. There is a rebuttable presumption that an administrative judge has considered all the record evidence unless he or she specifically states otherwise. See, e.g., ISCR Case No. 96-0608 at 3 (App. Bd. Aug. 28, 1997). Also, there is no requirement that a judge discuss or cite every piece of record evidence in a decision. See, e.g., ISCR Case No. 02-00305 at 3 (App. Bd. Feb. 12, 2003). After a review of the record and the Judge’s decision, the Board concludes that Applicant has failed to overcome the presumption that the Judge considered the entire record. The remainder of Applicant’s arguments go to the weight the Judge assigned various portions of the record evidence and to the manner in which the Judge interpreted specific pieces of evidence when evaluating both the applicability of mitigating factors and when conducting a whole-person analysis. Applicant discusses evidence such as Applicant’s actions during social gatherings with college friends and the pattern of Applicant’s recent efforts to abstain from involvement with marijuana. The gravamen of Applicant’s arguments is that the Judge’s decision not to apply the Guideline H mitigating factors in Applicant’s favor is arbitrary and capricious. Applicant has not demonstrated that the Judge has committed error. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security 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. See, e.g., ISCR Case No. 06-10320 at 2 (App. Bd. Nov. 7, 2007). 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. 06-17409 at 3 (App. Bd. Oct. 12, 2007). In this case, the Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. While citing specific Guideline H mitigating factors, the Judge reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. Specifically, the Judge’s concluded that, given all of the circumstances indicated by the record, Applicant’s abstinence from marijuana use since October 2006 was not sufficient to guarantee against recurrence. The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for her decision, “including a ‘rational connection between the facts found and the choice made.’” 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). Therefore, the Judge’s ultimate unfavorable security clearance decision under Guideline H is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board