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ISCR Case 09-04601.a1 — CASE

ISCR Case 09-04601.a1denied

Case Headnote

ISCR Case No. 09-04601.a1

May 11, 2011· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance applicant, representing herself, was denied clearance under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial stemmed from the applicant's failure to adequately respond to the government's evidence, specifically the File of Relevant Material.

The appeal board affirmed the denial, concluding that the applicant did not provide sufficient mitigating evidence to address the security concerns. The board found the applicant's general claims of receiving poor advice lacked the specificity required for reconsideration.

Ultimately, the judge's decision to deny the clearance was upheld, as a rational connection was found between the presented facts and the conclusions reached regarding the applicant's personal conduct and financial considerations.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

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 issuedAug 3, 2010
Answer filed—Applicant requested a decision based on the written record.
Hearing heldFeb 28, 2011
Decision dateMay 11, 2011

Cite For

Insufficient Specificity in Claims of Poor Advice Under Guideline E
Failure to Provide Adequate Evidence for Mitigation Under Guideline F
The Burden of Proof Shifts to the Applicant Once Security Concerns Are Raised.

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 based on security concerns under Guideline F and Guideline E. The applicant argued that the Judge's decision was arbitrary and capricious, but the Board affirmed the denial, finding no harmful error in the Judge's decision-making process.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPhilip S. Howe — denied the clearance

Decided onthe written record

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was based on substantial evidence and articulated a satisfactory explanation for the decision, including a rational connection between the facts found and the choice made. The Board concluded that the Judge's unfavorable security clearance decision was sustainable.

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
Jeffrey D. Billett
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 F; Guideline E DIGEST: Applicant’s contention that her failure to respond to the File of Relevant Material was due to poor advice from Department Counsel and her employer failed through lack of specificity. Board cannot consider new evidence she submitted in support of her appeal. Adverse decision affirmed. CASE NO: 09-04601.a1 DATE: 05/11/2011 DATE: May 11, 2011 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-04601

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 August 3, 2010, 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 E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested the case be decided on the written record. On February 28, 2011, after considering the record, Administrative Judge Philip S. Howe 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. In this case, Applicant elected to have a decision based on the written record, and then did not respond to the government’s file of relevant material (FORM). On appeal, she seeks reversal of the Judge’s adverse decision arguing that the Judge’s findings were not based on substantial evidence, that he erred in the application of the mitigating conditions, and that his whole-person analysis was erroneous. In support of her argument, she submits an extensive amount of new evidence, including a detailed statement addressing the allegations in the SOR and multiple documentary exhibits. The Board cannot consider this new evidence on appeal. See Directive ¶ E3.1.29. At the beginning of her brief, Applicant makes the general assertion that she did not respond to the government’s FORM because she detrimentally relied on poor advice from Department Counsel and her employer, and thought she had provided all she could. She does not specify what advice she received, when it was provided, or who provided it. Moreover, Applicant does not advance that claim later in her brief as one of her “issues on appeal.” Appeal Brief at 1. Accordingly, Applicant’s claim in that regard fails for lack of specificity. See, e.g., ISCR Case No.03-11096 at 6 (App. Bd. Feb. 3, 2005)(Appealing party has the burden of raising claims of error with sufficient specificity). Although pro se applicants cannot be expected to act like a lawyer, they are expected to take timely, reasonable steps to protect their rights under the Directive. Failure to take those steps does not constitute a denial of their rights. See, e.g., ISCR Case No. 05-03307 at 2 (May 7, 2007).

Applicant’s presentation does not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. 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 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. 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. 07-13837 at 2 (App. Bd. Sep. 28, 2010). In his decision, the Judge weighed the available evidence, evaluated the length and seriousness of the disqualifying conduct, and considered the possible application of relevant conditions and factors. He reasonably explained why there was insufficient mitigating evidence to overcome the government’s security concerns. Decision at 4-10. 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, 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 unfavorable security clearance decision 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 Chairman, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board