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ISCR Case 08-12061.a1 — CASE

ISCR Case 08-12061.a1denied

Case Headnote

ISCR Case No. 08-12061.a1

Dec 15, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline E (Personal Conduct). The denial was based on the applicant's failure to demonstrate that he had been denied due process or that the Judge's decision was arbitrary, capricious, or contrary to law.

The appeal board affirmed the denial, finding that the Judge's decision was supported by substantial evidence. The board concluded that the applicant's claims regarding due process violations and arbitrary decision-making were unpersuasive.

Specifically, the disqualifying condition E2.A5.1 was raised, while mitigating condition E2.A5.2 was applied. Ultimately, the security clearance was denied because the applicant did not successfully challenge the Judge's findings or demonstrate any procedural errors.

Conditions Referenced

Disqualifying

E2.A5.1raisedE2.A5.1: Personal Conduct

Mitigating

E2.A5.2rejectedE2.A5.2: Mitigating EvidenceThe presence of some mitigating evidence does not alone compel a favorable decision.

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 issuedMar 5, 2009
Answer filed—
Hearing heldOct 15, 2009
Decision dateDec 15, 2009

Cite For

Affirmation of Judge's Decision Under Guideline E
Standards for Due Process in Security Clearance Hearings
Evaluation of Mitigating Evidence Against Disqualifying Conduct

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 by an Administrative Judge. The applicant argued that he was denied due process and that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMichael H. Leonard — denied the clearance

Decided ona hearing

Guidelines belowGuideline E

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant claimed he was denied due process and that the Judge's decision 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 that the Judge's findings were supported by substantial evidence and that the decision was not arbitrary or capricious.

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
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 E DIGEST: Applicant failed to demonstrate that he had been denied due process. He also failed to demonstrate that the Judge weighed the evidence in a manner that is arbitrary, capricious, or contrary to law. Adverse decision affirmed. CASENO: 08-12061.a1 DATE: 12/15/2009 DATE: December 15, 2009 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-12061

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 March 5, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised, Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On October 15, 2009, after the hearing, Administrative Judge Michael H. Leonard 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: whether he was denied the due process accorded by the Directive and whether the Judge’s decision is arbitrary, capricious, or contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable decision. Applicant claims that he did not receive the investigative file in time to prepare for the hearing. At the beginning of the hearing the Judge asked Applicant if he was “ready to proceed with the hearing today.” Applicant replied “Yes, Your honor.” (Transcript, pp. 11-12). Applicant asserts that he was denied the due process accorded by the Directive. He cites record evidence against him prepared by a former employer and notes that he never had an opportunity to cross-examine the employer. The employer did not appear at the hearing, so testimony and subsequent cross-examination were never at issue. Government Exhibit 4 consists of material prepared by the employer. Applicant was twice asked if he objected to Government Exhibit 4. The first time he said, “No, Your Honor.” The second time he said, “I have no objections, Your Honor.” (Transcript, p. 42). Furthermore, the Board notes that the Judge asked Applicant several questions regarding his choice to represent himself, his age, and his education, before permitting him to represent himself. At that point the Judge also discussed the process of representing oneself, making objections and speaking up. (Transcript, pp. 11-15). The Judge took reasonable steps to ensure that Applicant would be able to represent himself adequately. Although pro se applicants cannot be expected to act like lawyers, they are expected to take timely, reasonable steps to protect their rights under the Directive. See, e.g., ISCR Case No. 00-0593 at 4 (App. Bd. May 14, 2001). If they fail to take timely, reasonable steps to protect their rights, their failure to act does not constitute a denial of their rights. See, e.g., ISCR Case No. 02-19896 at 6 (App. Bd. Dec. 29, 2003). Accordingly, Applicant’s argument in this regard does not persuade the Board that the case should be reversed or remanded. See, e.g., ISCR Case No. 05-03307 at 2 (App. Bd. May 7, 2007). Applicant alleges for the first time on appeal that the former employer may have been motivated by racism. There is no record evidence to support that allegation. Applicant points to some mitigating evidence. 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 and considered the possible application of relevant conditions and factors. He concluded that Applicant had engaged in two types of wrongful conduct that call into question his judgment, trustworthiness and reliability. These conclusions are reasonably supported by the record. To the extent that Applicant’s brief challenges some of the Judge’s findings, we conclude that Judge’s material findings of security concern are based on substantial record evidence and are therefore sustainable. See, e.g., ISCR Case No. 08-04624 at 2 (App. Bd. Oct. 28, 2009). 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 his 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 E 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 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