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ISCR Case 12-09326 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date6/18/2013
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 12-09326.h1) →
Participants
Applicant Representation: Pro Se
Judge: Jeffrey D. Billett, Michael Y. Ra'anan, William S. Fields
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline BForeign Influence · Against Applicant
- Guideline EPersonal Conduct · Against Applicant
- Guideline FFinancial Considerations · Against Applicant

Similar decisions
Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
Finding similar decisions…

ISCR Case 12-09326denied

Case Headnote

ISCR Case No. 12-09326

Jun 18, 2013· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing herself, was denied a security clearance based on concerns under Guideline B (Foreign Influence), Guideline E (Personal Conduct), and Guideline F (Financial Considerations). The judge's decision to deny the clearance was upheld, as the applicant failed to demonstrate any specific harmful error in the initial ruling.

The applicant's claims of error were found to lack the necessary specificity to overturn the decision. While the applicant had a history of compliance with security procedures, this did not mitigate the disqualifying conduct identified under Guidelines F and E.

Ultimately, the judge's findings regarding foreign influence, personal conduct, and financial considerations were deemed sustainable, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG BraisedForeign Influence
AG EraisedPersonal Conduct
AG FraisedFinancial Considerations

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 28, 2012
Answer filed—
Hearing held—
Decision dateJun 18, 2013

Cite For

Insufficient Specificity in Claims of Error Under Appeal
Sustainable Adverse Findings Under Multiple Guidelines
Prior Compliance with Security Procedures Has Low Probative Value in Mitigating 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 after being denied by the Administrative Judge based on security concerns under Guidelines B, F, and E. The applicant argued that the Judge's decision was arbitrary and capricious. The Board found that the applicant did not raise specific harmful errors and that the Judge's decision was supported by substantial evidence, affirming the denial of the clearance.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMartine H. Mogul — denied the clearance

Decided onthe written record

Guidelines belowGuideline BGuideline FGuideline E

What the Board reviewed

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

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for the decision. The error identified regarding the Judge's failure to consider certain evidence was deemed harmless as it did not affect the overall outcome of the case.

Standard of review applied

Harmful-error gatekeeperNo de-novo re-decisionNo new evidence on appeal

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 B; Guideline F; Guideline E DIGEST: Claims of error must be raised with specificity. Applicant failed to do so. The Judge failed to consider evidence that Applicant had complied with security procedures in high-risk circumstances. However, this error did not affect the overall outcome of the case and, therefore, was harmless. Adverse decision affirmed. CASE NO: 12-09326 DATE: 06/18/2013 DATE: June 18, 2013 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-09326

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On September 28, 2012, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline B (Foreign Influence), Guideline F (Financial Considerations) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested that the case be decided on the written record. On April 4, 2013, after considering the record, Defense Office of Hearings and Appeals Administrative Judge Martine H. Mogul 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’s appeal brief contains new evidence, in the form of several documentary exhibits, and a detailed narrative statement elaborating upon the information which Applicant provided in response to the government’s File of Relevant Material (FORM). Applicant states that she is presenting her case again in order to explain herself better. Applicant’s Brief at 2. The Board cannot consider this new evidence on appeal. See Directive ¶ E3.1.29. The Appeal Board’s authority to review a case is limited to cases in which the appealing party has alleged the Judge committed harmful error. There is no presumption of error below, and the appealing party has the burden of raising and demonstrating factual and legal error by the Judge. Such claims of error must be made with specificity. See, e.g., ISCR Case No. 10-06437 at 3 (App. Bd. Mar. 11, 2013). In her brief, Applicant makes the general assertion that the Judge’s decision is unjust and a complete mis- characterization of her true character. Applicant’s Brief at 2. Applicant’s blanket assertion in this regard lacks the requisite specificity. Id. 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. 11-00982 at 2 (App. Bd. Jun. 12, 2012). The Board has previously noted that, as a general rule, an applicant’s prior history of complying with security procedures and regulations is considered to be of relatively low probative value for the purpose of refuting, mitigating, or extenuating the security concerns raised by that applicant’s more immediate disqualifying conduct. However, the Board has also recognized that history may be accorded greater weight in cases where the security concern is not a result of Applicant’s conduct, such as in Guideline B cases, and the applicant has established by credible, independent evidence that compliance with security procedures and regulations occurred in the context of dangerous, high-risk circumstances in which the applicant had made a significant contribution to the national security. See, e.g., ISCR Case No. 06-25928 at 4 (Apr. 9, 2008); ISCR Case No. 10-02803 at 6 (App. Bd. Mar. 19, 2012). That type of evidence was present in this case, and the Judge should have analyzed the Guideline B security concerns more fully in the context of that evidence. But remand of the case for such analysis would not change the ultimate outcome, given the Judge’s sustainable adverse findings under Guidelines F and 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 his decision. “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 is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, 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