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ISCR Case 08-09337.a1 — CASE

ISCR Case 08-09337.a1denied

Case Headnote

ISCR Case No. 08-09337.a1

Oct 16, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance primarily under Guideline J (Criminal Conduct), with Guideline F (Financial Considerations) also noted. The denial stemmed from the applicant's involvement in conduct that violated federal conflict of interest rules, which raised disqualifying conditions under Adjudicative Guideline (AG) ¶ 30.

Despite being acquitted of related criminal charges, the DOHA Administrative Judge determined that the applicant failed to demonstrate sufficient mitigation of the disqualifying conduct. The judge found that the nature and gravity of the applicant's actions outweighed the mitigating evidence presented, which included conditions under AG ¶ 17.

The applicant's reliance on her criminal acquittal was deemed misplaced, as DOHA security clearance hearings do not adhere to the same legal standards as criminal prosecutions. Consequently, the Board affirmed the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 30raisedCriminal Conduct

Mitigating

AG ¶ 17rejectedMitigating ConditionsThe judge concluded that the mitigating evidence did not outweigh the seriousness of the disqualifying conduct.

Key Rule Quoted

“Although Applicant was acquitted at trial, a DOHA administrative hearing is not bound by the same presumptions and burden of proof applicable to criminal prosecutions.”
— ISCR Case No.08-02404 at 3-4 (App. Bd. Jun. 5, 2009)

Procedural Posture

SOR issuedJan 22, 2008
Answer filed—
Hearing heldJul 23, 2009
Decision dateOct 16, 2009

Cite For

Insufficient Mitigation Under Guideline J Despite Acquittal of Criminal Charges
The Weight of Mitigating Evidence Versus Disqualifying Conduct
The Standards of Proof in DOHA Hearings Compared to Criminal Trials

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 F and Guideline J. The Applicant argued that the Judge misapplied mitigation, expanded the scope of the allegations, and made unsupported factual findings. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationAttorney

Judge belowThomas M. Crean — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline J

What the Board reviewed

Mitigation wrongly applied / not applied — raised by the applicantRejected
The Judge failed to consider properly various matters in mitigation under Guideline J.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge expanded the scope of the sole allegation under Guideline J.
Erroneous finding of fact — raised by the applicantRejected
Certain of the Judge’s factual findings are not supported by substantial record evidence.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the Judge properly weighed the evidence in accordance with the applicable standards. The Board concluded that the Applicant's claims did not demonstrate harmful error in the Judge's decision.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decision

Appeal Board panel

Michael Y. Ra’anan — Chair
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 F; Guideline J DIGEST: Although Applicant was acquitted at trial, a DOHA administrative Judge is not bound by the same presumptions and burden of proof applicable to criminal prosecutions. Adverse decision affirmed. CASENO: 08-09337.a1 DATE: 10/16/2009 DATE: October 16, 2009 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-09337

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Richard A. Stevens, Esq., Department Counsel FOR APPLICANT Eric F. Adams, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On January 22, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On July 23, 2009, after the hearing, Administrative Judge Thomas M. Crean denied Applicant’s request for a security clearance. Applicant 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 properly various matters in mitigation under Guideline J; (b) whether the Judge expanded the scope of the sole allegation under Guideline J; and (c) whether certain of the Judge’s factual findings are supported by substantial record evidence. For the following reasons, the Board affirms the Judge’s adverse security clearance decision. The Judge found that, in 2001, Applicant was indicted, tried, and acquitted for participating personally and substantially as a government employee in a contract in which she had a financial interest (18 U.S.C. 208 (a) and 2). The Judge made extensive findings regarding the underlying conduct in 2000 and 2001 that led the to the charge. Specifically, he found she violated federal “conflict of interest rules” by informing a government contractor that, through her private side- business, she could write documents for proper performance of the contract. She had, in her government capacity, informed the contractor of the deficiencies she proposed to correct. The Judge also made findings and conclusions regarding Applicant’s actions in seeking permission to engage in an outside activity. He found that Applicant gave limited information in response to repeated requests for more information. The ethics counselor told her that she did not have sufficient information to advise the supervisor. Applicant went ahead and entered into the business arrangement and accepted funds for activities. “Applicant clearly violated the ethical rules concerning outside employment.” (Decision at p. 12.) The Judge found for Applicant under Guideline F which is not at issue on appeal. The Judge’s findings are supported by substantial evidence and are sustainable. The Judge concluded that Applicant failed to demonstrate mitigation. Although the Judge considered the passage of time, the favorable testimony of her witnesses, and the acquittal, he concluded that the nature and gravity of the conduct was not outweighed by the evidence in mitigation. To the extent that Applicant relies on the fact that she was acquitted of criminal charges, such reliance is misplaced. “Although Applicant was acquitted at trial, a DOHA administrative hearing is not bound by the same presumptions and burden of proof applicable to criminal prosecutions [citations omitted]” See ISCR Case No.08-02404 at 3-4 (App. Bd. Jun. 5, 2009). Applicant asserts that the Judge did not consider important matters in mitigation under Guideline J. There is a rebuttable presumption that the Judge considered all the record evidence. Applicant has not overcome this presumption. 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). A party’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 under Guideline J and considered the possible application of relevant conditions and factors. However, the Judge concluded that there was insufficient evidence to mitigate the Guideline J allegation. This conclusion is reasonably supported by the record. Regarding Applicant’s claim that the Judge expanded the scope of the SOR without amending it, the Board is not persuaded. In the first place, the claim is vague and does specify what portion of the facts or issues were outside the scope of the allegation. Applicant was on fair notice that the 2001 issues were of security concern. Applicant was represented by counsel at the hearing. Applicant does not allege nor does the Board find evidence that her previous counsel ever challenged either the scope of the SOR or the scope of the hearing. Indeed, her counsel’s opening statement refers to various aspects of the 2000-2001 events. Applicant has failed to demonstrate error on this claim.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, 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