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ISCR Case 07-18065.a1 — CASE

ISCR Case 07-18065.a1denied

Case Headnote

ISCR Case No. 07-18065.a1

Nov 18, 2008· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance under Guideline B (Foreign Influence) and Guideline E (Personal Conduct). The denial stemmed from the applicant's deliberate falsification of information regarding his contact with siblings residing in Iraq. This misrepresentation significantly undermined his credibility during the adjudication process.

The judge's decision to deny the clearance was based on substantial evidence, including inconsistencies in the applicant's statements concerning his foreign contacts. These findings directly supported the application of Disqualifying Conditions AG B1 (Foreign Influence) and AG E2 (Personal Conduct).

Upon appeal, the denial was affirmed. The appeal board concluded that the judge's findings were well-supported by the evidence and that the applicant failed to demonstrate any error in the judge's conclusions or any violation of his due process rights.

Conditions Referenced

Disqualifying

AG B1raisedForeign Influence
AG E2raisedDeliberate Falsification

Key Rule Quoted

“There is a rebuttable presumption that federal officials and employees carry out their duties in good faith.”
— ISCR Case No. 00-0030 at 5 (App. Bd. Sep. 20, 2001)

Procedural Posture

SOR issuedMay 9, 2008
Answer filed—
Hearing heldSep 9, 2008
Decision dateNov 18, 2008

Cite For

Deliberate Falsification Under Guideline E
Substantial Evidence Standard in Security Clearance Cases
Rebuttable Presumption of Good Faith in Federal Duties

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 due to concerns under Guideline B (Foreign Influence) and Guideline E (Personal Conduct). The applicant raised several issues on appeal, including claims of due process violations and errors in the Judge's findings. The Board affirmed the Judge's decision, finding no harmful errors that would warrant a reversal.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowNoreen A. Lynch — denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline E

What the Board reviewed

Due-process / fairness — raised by the applicantRejected
Applicant contends that he was denied due process because Department Counsel acted improperly.
Erroneous finding of fact — raised by the applicantRejected
Applicant argues that the Judge’s findings are not based on substantial evidence.
Credibility determination — raised by the applicantRejected
Applicant contends that he did not deliberately provide false or misleading information to an investigator.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant argues that the Judge's adverse decision should be reversed based on his favorable character references and good job performance.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the applicant did not demonstrate any harmful error that would change the outcome of the case. The Judge's conclusion regarding the applicant's credibility and the adverse decision were sustainable based on the evidence presented.

Standard of review applied

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

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 B DIGEST: There is a rebuttable presumption that federal officials and employees carry their duties in good faith. A party seeking to rebut that presumption has a heavy duty on appeal. Given the record, the Judge’s finding of deliberate falsification is sustainable. Adverse decision affirmed. CASENO: 07-18065.a1 DATE: 11/18/2008 DATE: November 18, 2008 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-18065

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 May 9, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the In support of his appeal, Applicant attaches new documentary evidence. The Board cannot consider this new evidence on appeal. See Directive ¶ E3.1.29. basis for that decision—security concerns raised under Guideline B (Foreign Influence) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 9, 2008, after the hearing, Administrative Judge Noreen A. Lynch denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether Applicant was denied due process because Department Counsel acted improperly; whether the Judge’s findings are based on substantial evidence; whether the Judge erred in concluding that Applicant had deliberately provided false or misleading information to an investigator; and whether the Judge’s adverse clearance decision under Guideline B is sustainable.1 (1) Applicant contends that he was denied due process because Department Counsel acted improperly. In support of that contention, he argues that the Department Counsel engaged in an aggressive cross-examination of his character witness, asking him questions which Applicant had not anticipated him asking. The Board does not find this argument persuasive. There is a rebuttable presumption that federal officials and employees carry out their duties in good faith. See, e.g., ISCR Case No. 00-0030 at 5 (App. Bd. Sep. 20, 2001). A party seeking to rebut that presumption has a heavy burden of persuasion on appeal. Applicant has not met that heavy burden in that he fails to identify anything in the record below that indicates or suggests a basis for a reasonable person to conclude that Department Counsel acted improperly, unfairly or unprofessionally. See, e.g, ISCR Case No. 06-26704 at 2 (App. Bd. Jun. 19, 2008)(no denial of due process where Department Counsel “subjected [Applicant] to an aggressive cross-examination which elicited adverse details about his alcohol use that went beyond the specific facts recited in the SOR and the documentary exhibits, and undermined his credibility with the Judge”); ISCR Case No. 03- 04927 at 3 (App. Bd. Mar. 4, 2005)(no denial of due process where pro se Applicant claimed “she was no match for the ‘very serious and prepared professionals’ who represented the government”); ISCR Case No. 03-21262 at 2-3 (Jul. 10, 2007)(no denial of due process where pro se Applicant claimed that “Department Counsel raised his voice . . . and attempted to sway the Judge with emotional arguments”). (2) Applicant argues that the Judge’s adverse clearance decision should be reversed because the Judge erred with respect to several of her findings. The Board does not find this argument persuasive. The Board’s review of a Judge’s findings is limited to determining if they are supported by substantial evidence—such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the record. Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two Decision at 8. inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620, (1966). After reviewing the record, the Board concludes that the Judge’s findings are based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from the record. Applicant has not identified any harmful error likely to change the outcome of the case. Considering the record evidence as a whole, the Judge’s material findings of security concern are sustainable. See, e.g., ISCR Case No. 06-21025 at 2 (App. Bd. Oct. 9, 2007). (3) Applicant contends that he did not deliberately provide false or misleading information to an investigator, when he stated he had not called or written his siblings in Iraq since he came to the United States in the 1990s. In support of this contention, he argues that allegation resulted from a misunderstanding. Applicant has not demonstrated that the Judge erred. A review of the Judge’s decision indicates that she considered the circumstances surrounding the allegation in light of Applicant’s explanation and the record evidence as a whole, and concluded there was a sufficient basis to find that Applicant had provided false or misleading information: Applicant listed in his security application that he maintained contact with his [siblings] who are residents and citizens of Iraq. He later changed that information in an interview with an investigator in 2007. He had an opportunity to clarify or correct this information in interrogatories in 2008. He made certain corrections but did not change the reference to contact with his [siblings]. At the hearing, he was inconsistent with his statements and answers to questions by counsel. I allow for the second language and possible misunderstandings, but I did not find Applicant credible, especially in light of his strong desire to maintain employment.2 Given the record that was before her, the Judge’s finding of deliberate falsification is sustainable. (4) Applicant argues that the Judge’s adverse decision should be reversed based on his favorable character references, his good job performance, and his strong ties to the United States. Applicant’s arguments in that regard do not demonstrate that the Judge erred. 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 Decision at 10. 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. 07-00434 at 3 (App. Bd. Jul. 18, 2008). A review of the record 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 conditions and factors. She reasonably explained why the evidence which the Applicant had presented in mitigation was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. The favorable record 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). 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)). Therefore, the Judge’s conclusion that “it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance”3 is sustainable. Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).

ORDER

The decision of the Judge denying Applicant a security clearance 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