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ISCR 09-00963.a1: Guideline D security clearance appeal, denied (2010) · CASE

ISCR Case 09-00963.a1denied

Case headnote

ISCR Case No. 09-00963.a1

Apr 23, 2010· Hon. Jean E. Smallin· appeal

Summary

A field engineer with prior military service was denied a security clearance due to serious criminal conduct under Guideline D (Sexual Behavior) and Guideline J (Criminal Conduct). The applicant was found guilty of multiple counts of possession of child pornography, which raised significant security concerns.

The appeal board affirmed the denial, concluding that the applicant's criminal behavior posed a significant risk to national security. Disqualifying conditions J1 and D1 were specifically raised.

The board found no evidence of judicial bias or improper application of the law by the judge in the initial decision. Ultimately, the security clearance was denied.

Conditions referenced

Disqualifying

J1raisedCriminal Conduct
D1raisedSexual Behavior

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 issuedSep 9, 2009
Answer filed—
Hearing heldFeb 26, 2010
Decision dateApr 23, 2010

Cite for

Affirmation of Denial Based on Serious Criminal Conduct Under Guideline J
Judicial Bias Claims Require Substantial Evidence to Overcome the Presumption of Impartiality
Clear Connection Between Criminal Behavior and National Security Risks Under Guideline D

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 after being denied due to concerns under Guideline J (Criminal Conduct) and Guideline D (Sexual Behavior). The applicant argued bias and that the decision was arbitrary and capricious. The Board affirmed the decision, finding no harmful error in the Judge's ruling.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJoan Caton Anthony denied the clearance

Decided ona hearing

Guidelines belowGuideline JGuideline D

What the Board reviewed

Judge bias or partiality, raised by the applicantRejected
Applicant contended that the Judge was biased against him.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argued that the Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no basis to conclude that the Judge was biased and affirmed the adverse decision based on 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

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 J; Guideline D DIGEST: There is a rebuttable presumption that a judge is impartial and unbiased. A party seeking to overcome that presumption has a heavy burden on appeal. We find no basis to conclude that the Judge was biased. Adverse decision affirmed. CASENO: 09-00963.a1 DATE: 04/23/2010 DATE: April 23, 2010 In Re: --------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-00963

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Alan V. Edmunds, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On September 9, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline J (Criminal Conduct) and Government Exhibit 2 is a document submitted by law enforcement authorities to the state district court, seeking charges and an authorization for the arrest of Applicant. It describes the general nature of the pornographic material found on Applicant’s computer. These include numerous digital videos and photographs displaying prepubescent girls engaging in sexual acts. Guideline D (Sexual Behavior) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On February 26, 2010, after the hearing, Administrative Judge Joan Caton Anthony denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge was biased against Applicant; whether the Judge failed properly to apply the whole-person factors; and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge’s findings include the following: Applicant is a field engineer for a federal contractor. He has held a security clearance since 1994. He served in the U.S. military for 13 years and is currently in the reserves. Applicant divorced his wife in 2004. After the divorce, he bought a house, acquiring a housemate, whose rental payments would offset some of the cost of his mortgage payment. Applicant also permitted other persons to stay at his house. He had a personal computer, to which the other persons staying there had access. In October 2005, law enforcement agents searched Applicant’s house and seized his computer. The following July Applicant was arrested and charged with 20 counts of possession of child pornography and with possession both of marijuana and marijuana paraphernalia. The 20 counts of child pornography possession were subsequently merged into 11, and the marijuana charges were dropped. Applicant pled not guilty, and, “represented by an attorney with a national reputation for defending against child pornography charges,” he fully litigated the prosecution’s case against him. Decision at 4. He was found guilty on all 11 counts, sentenced to a year of prison for each count, all suspended; fined $100 for each count; placed on supervised probation for 3 years; and ordered to receive psychiatric treatment. Applicant contends that the Judge was biased against him. In his brief, he states that the Judge “allowed the prejudicial nature of the underlying crime to cloud her eyes regarding the considerable favorable evidence expressed. Thus, undue weight was given to the isolated incident of criminal/sexual misconduct.” Applicant’s Brief at 11. There is a rebuttable presumption that a Judge is impartial and unbiased, and a party seeking to overcome that presumption has a heavy burden of persuasion. See, e.g., ISCR Case No. 07- 02253 at 3 (App. Bd. Mar. 28, 2008); ISCR Case No. 02-08032 at 4 (App. Bd. May 14, 2004). The Board has examined Applicant’s contention in light of the record as a whole. Beyond the conclusory statement quoted above, Applicant points to nothing in the Judge’s handling of his case that would cause a reasonable person to question her impartiality. We find no basis to conclude that the Judge was predisposed against Applicant or that she exhibited other indicia of a lack of impartiality. ISCR Case No. 08-01306 at 4 (App. Bd. Oct. 28, 2009). We conclude that Applicant has failed to rebut the presumption that the Judge was impartial. Neither has Applicant demonstrated that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-21819 at 2 (App. Bd. Aug. 13, 2009). In support of his appeal, Applicant cites to cases decided by the DOHA Hearing Office which, he contends, support his argument for mitigation. We give due consideration to these cases. However, each case “must be decided upon its own merits.” Directive ¶ E2.2.3. The cases cited by Applicant are factually distinct from his in significant ways. Moreover, one of the cases he cites was actually reversed on appeal. In any event, Hearing Office decisions are binding neither on other Hearing Office Judges nor on the Board. See ISCR Case No. 06-24121 at 2 (App. Bd. Feb. 5, 2008). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made,’” both as to the mitigating conditions and the whole-person factors. See 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 Judge’s adverse decision is sustainable on this record. “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).

ORDER

The Judge’s adverse security clearance decision 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