CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 07-15696.a1 — CASE

ISCR Case 07-15696.a1granted

Case Headnote

ISCR Case No. 07-15696.a1

Feb 20, 2009· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance was granted to an applicant, represented by counsel, after an Administrative Judge's decision was affirmed by the Appeal Board. The case primarily involved concerns under Guideline B, Foreign Influence.

The Administrative Judge's decision to grant the clearance was based on a satisfactory explanation of conclusions regarding foreign influence. Specifically, the Judge effectively applied Foreign Influence Mitigating Conditions 8(a) and 8(b).

The Appeal Board found no error in the Judge's application of these mitigating conditions or in the overall whole-person analysis, which ultimately supported the favorable decision to grant the security clearance.

Conditions Referenced

Mitigating

8(a)appliedThe Nature of the Applicant's Relationships with Foreign Persons Is Not Likely to Result in Coercion or Duress.
8(b)appliedThe Applicant Has Taken Positive Steps to Reduce or Eliminate Vulnerability to Foreign Influence.

Key Rule Quoted

“The Board need not agree with a Judge’s decision in order to find it sustainable.”
— ISCR Case No. 06-23881 at 2 (App. Bd. November 2, 2007)

Procedural Posture

SOR issuedMar 16, 2008
Answer filed—
Hearing heldNov 5, 2008
Decision dateFeb 20, 2009

Cite For

Affirmation of Favorable Decisions Under Guideline B
Application of Mitigating Conditions in Foreign Influence Cases
Whole-person Analysis in Security Clearance Determinations

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 Department Counsel challenge to an Administrative Judge's favorable decision granting a security clearance under Guideline B (Foreign Influence). The Board affirmed the Judge's decision, finding no harmful error in the arguments presented by Department Counsel.

Appealed bythe Government (Department Counsel)

Applicant representationAttorney

Judge belowPaul J. Mason — granted the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the Government (Department Counsel)Rejected
Department Counsel argued that the Judge's favorable decision under Guideline B was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's decision and concluded that the Judge's application of mitigating conditions and whole-person analysis were sustainable.

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 Y. Ra’anan — Chair
Jeffrey D. Billett
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 DIGEST: To the extent the Department Counsel’s arguments rely on case law interpreting language from adjudicative guidelines which are no longer in effect, those arguments are not persuasive. The Judge did not confine his consideration to coercive means of influence. Favorable decision affirmed. CASENO: 07-15696.a1 DATE: 02/20/2009 DATE: February 20, 2009 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-15696

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Richard A. Stevens, Esq., Department Counsel FOR APPLICANT Ronald C. Sykstus, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On March 16, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On November 5, 2008, after the hearing, Administrative Judge Paul J. Mason 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 favorable decision under Guideline B is arbitrary, capricious, or contrary to law. Finding no error, we affirm.

To the extent Department Counsel’s arguments on appeal rely on case law interpreting language from adjudicative guidelines which are no longer in effect, those arguments are not persuasive. (For additional discussion on this point see ISCR 06-17838 at p. 4 (App. Bd. Jan. 28, 2008). Department Counsel is correct that the Government’s security concerns are broader than the limited possibility of the use of coercive means of influence. However, a review of the Judge’s decision leads the Board to conclude that the Judge did not confine his consideration to coercive means of influence. The Judge’s decision contains a satisfactory explanation for [his] conclusions, including a rational connection between the facts found and his ultimate decision, both as to the application of the mitigating conditions and the whole-person analysis. See ISCR Case No. 03- 22861 at 2-3 (App. Bd. Jun. 2, 2006). Given the record that was before him, the Judge’s application of Foreign Influence Mitigating Conditions 8(a) and 8(b) and his whole person analysis of Applicant’s case are sustainable. “The Board need not agree with a Judge’s decision in order to find it sustainable.” ISCR Case No. 06-23881 at 2 (App. Bd. November 2, 2007).

ORDER

The Judge’s favorable security clearance decision 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; James E. Moody James E. Moody Administrative Judge Member, Appeal Board