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ISCR 09-03448.a1: Guideline B security clearance appeal, denied (2011) · CASE

ISCR Case 09-03448.a1denied

Case headnote

ISCR Case No. 09-03448.a1

May 19, 2011· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, represented by counsel, was denied a security clearance based on concerns under Guideline B (Foreign Influence) and Guideline E (Personal Conduct). The denial was ultimately affirmed by the appeal board.

The primary reason for the denial was the applicant's deliberate falsification of information during the security clearance process, falling under Disqualifying Condition E2. The judge found the applicant's explanations insufficient to mitigate the security concerns raised by this conduct.

While the appeal board found in favor of the applicant under Guideline B, applying Mitigating Condition B2, this was not enough to overcome the concerns related to personal conduct. The board concluded that the judge's decision to deny the clearance was not arbitrary or contrary to law, leading to the final outcome of denial.

Conditions referenced

Disqualifying

E2appliedPersonal ConductThe judge found that the applicant's omissions were deliberate and intentional.

Mitigating

B2appliedForeign InfluenceThe judge found in favor of the applicant under Guideline B.

Key rule quoted

“Each case must be judged on its own merits . . .”
Directive, Enclosure 2 ¶ 2 (b)

Procedural posture

SOR issuedAug 23, 2010
SOR amendedOct 13, 2010to add an allegation under Guideline B
Hearing heldFeb 25, 2011
Decision dateMay 19, 2011

Cite for

Deliberate Falsification of Information Under Guideline E
Weighing of Mitigating Evidence Against Disqualifying Circumstances
Whole-person Concept 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 an applicant seeking a security clearance who was denied due to findings of deliberate falsification during the clearance process. The applicant argued that the Judge's decision was arbitrary and that the evidence supported a favorable outcome. The Board affirmed the Judge's decision, finding it sustainable and properly reasoned.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJennifer I. Goldstein denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline B

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argued that the Judge's adverse decision was arbitrary, capricious, or contrary to law.
Erroneous finding of fact, raised by the applicantRejected
Applicant contended that the Judge erred in concluding that he deliberately provided false information.
Whole-person analysis, raised by the applicantRejected
Applicant claimed that the record evidence supported a favorable determination under the whole-person concept.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the decision was not arbitrary, capricious, or contrary to law. The Judge properly weighed the evidence and articulated a rational connection between the facts and the decision made.

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

Jeffrey D. Billett
Jean E. Smallin
William S. Fields

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: Judge’s finding that Applicant deliberately provided false information during the security clearance process is sustainable. Hearing Office decisions are not binding on the Board or on other Hearing Office Judges. Adverse decision affirmed. CASE NO: 09-03448.a1 DATE: 05/19/2011 DATE: May 19, 2011 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-03448

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 August 23, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). The SOR was subsequently amended on October 13, 2010 to add an allegation under Guideline B (Foreign Influence). Applicants requested a hearing. On February 25, 2011, after the hearing, Administrative Judge Jennifer I. Goldstein denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse clearance decision is arbitrary, capricious or contrary to law. Applicant argues that the Judge’s adverse decision should be reversed because: 1) the Judge erred in concluding that Applicant deliberately and intentionally provided false information on multiple occasions during the security clearance process, and 2) the record evidence is sufficient to support a favorable determination under the whole-person concept. Applicant’s arguments do not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. In his brief, Applicant cites to other Hearing Office decisions in which applicants in ostensibly similar circumstances were granted clearances. Although such decisions may be cited as persuasive authority, they are not binding legal precedent in another situation. Applicant’s reliance on other Hearing Office decisions does not demonstrate that the Judge erred in this case. See, e.g., ISCR Case No. 07-15590 at 2 (App. Bd. Nov. 18, 2008). “The adjudicative process is the careful weighing of a number of variables known as the whole-person concept.” Directive, Enclosure 2 ¶ 2 (a). “Each case must be judged on its own merits . . .” Id at ¶ 2 (b). In reaching her decision as to Applicant’s falsifications, the Judge specifically considered Applicant’s explanations. Decision at 7-9. However, she was not bound, as a matter of law, to accept or reject those explanations. Rather, the Judge considered those explanations in light of the record evidence as a whole, and concluded there was a sufficient basis to find that Applicant’s omissions were deliberate and intentional. On this record, the Judge’s finding that Applicant’s falsifications were deliberate is sustainable. See Directive ¶ E3.1.32.1. Once the government presents evidence raising security concerns, the burden shifts to the applicant to mitigate those concerns. Directive ¶ E3.1.15. 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, or vice versa. 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. 10-00278 at 2 (App. Bd. Mar. 18, 2011). A review of the Judge’s decision indicates that she weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying circumstances and considered the possible application of relevant conditions and factors. Decision at 7-9 and 10-11. She found in favor of Applicant under Guideline B, but reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns under Guideline E. The Board does not review a case de novo. 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.’” 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, 158 (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). Accordingly, the Judge’s unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board