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ISCR Case 15-06751.a1 — CASE

ISCR Case 15-06751.a1denied

Case Headnote

ISCR Case No. 15-06751.a1

May 14, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

The applicant was denied a security clearance under Guideline E (Personal Conduct) due to his involvement in illegal software activities and his failure to disclose this information during the clearance process. Specifically, Disqualifying Condition E2 was raised, indicating a deliberate misrepresentation or omission of material facts.

The judge determined that the applicant's omissions regarding his knowledge and use of pirated software were intended to mislead the government. This lack of candor undermined his credibility and raised significant security concerns.

Ultimately, the applicant did not meet his burden of persuasion to demonstrate sufficient mitigation of these security concerns, resulting in the denial of his security clearance.

Conditions Referenced

Disqualifying

E2raisedPersonal ConductThe applicant's failure to provide candid answers during the security clearance process.

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 issuedNov 17, 2016
Answer filed—
Hearing heldFeb 8, 2018
Decision dateMay 14, 2018

Cite For

Failure to Disclose Involvement in Illegal Activities Under Guideline E
Credibility Determinations in Security Clearance Cases
Rebuttable Presumption of Judicial Impartiality in Administrative Hearings

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 E regarding personal conduct. The applicant argued that the Judge was biased, erred in amending the SOR, and made erroneous credibility determinations. The Board affirmed the Judge's decision, finding no harmful errors and that the Judge's conclusions were supported by substantial evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowEdward W. Loughran — denied the clearance

Decided ona hearing

Guidelines belowGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's decision was arbitrary, capricious, or contrary to law.
Credibility determination — raised by the applicantRejected
Applicant argued that the Judge's credibility determination was erroneous.
No specific harmful error alleged — raised by the applicantRejected
Applicant alleged that the Judge lacked the requisite impartiality.
Legal error — raised by the applicantRejected
Applicant claimed the Judge erred in amending the SOR.

Why the Board ruled this way

The Board found that the Judge's questioning did not indicate bias and that the Judge's findings were supported by substantial evidence. The Judge's decision to deny the security clearance was affirmed based on the applicant's failure to provide complete and truthful information during the investigation.

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

Michael Ra’anan — Chair
James E. Moody
James F. Duffy

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: 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. We conclude that the Judge’s questioning of Applicant, though somewhat sharp at times, did not evidence an inflexible predisposition against him. Adverse decision affirmed. CASENO: 15-06751.a1 DATE: 05/14/2018 DATE: May 14, 2018 In Re: --------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-06751

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Troy L. Nussbaum, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On November 17, 2016, DoD 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). Applicant requested a hearing. On February 8, 2018, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Edward W. Loughran 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 lacked the requisite impartiality; whether the Judge erred in amending the SOR; whether the Judge’s credibility determination was erroneous; and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact From the late 1990suntil the early 2000s, Applicant worked for a previous employer. He told one of the company’s owners that, in the past, he had installed a program that permitted the downloading and sharing of illegal or pirated software. His employer told him not to do that at the company. Later, the company decided to make an online game available to its employees. The company sent a server to Applicant’s home to be used for the game. At some point, the illegal program referenced above was installed on the server. Applicant used the program to download educational material, music, games, pornographic videos, and movies. Applicant had several dozen CDs and DVDs of pirated software at his home. At the same time, the FBI was conducting an investigation into software piracy. Agents visited Applicant’s home. His wife notified him that agents were there, and he told her to hide the pirated software that he had downloaded. During an interview, he initially stated to the agents that the purpose of the server was to provide access to the online game. Applicant later admitted that the server also contained the illicit software program. Applicant turned over the pirated software that he had told his wife to hide and consented to a search of his home. The agents seized pirated software as well as legitimate CDs and DVDs, including Christmas presents. Applicant agreed to act as a confidential informant for the FBI, and he was not charged with any offense. During his background interview, Applicant discussed the FBI investigation. He did not disclose that he had known the illegal program had been installed on the server. In his answers to DOHA interrogatories, he again discussed the FBI investigation. He stated that the FBI returned all of his property that they had seized and he was never charged with any crime. Again, he did not disclose that he had known about the illegal program or that he had used it to download software. Applicant’s statements were correct, insofar as he advised that he did not know how the illegal program had been installed on the server. They were not correct in that they failed to mention his own involvement in downloading pirated software. Applicant admitted that he should have disclosed that he himself had downloaded pirated software. Applicant enjoys an excellent reputation for his job performance. He is considered trustworthy, reliable, mature, honest and responsible. His witnesses and character references recommend that he receive a clearance. The Judge’s Analysis The Judge found that Applicant’s interview and his interrogatory answers were untrue because they omitted material information about his own knowledge of the illegal program and his having used it to download pirated software. He found that Applicant’s omissions were for the purpose of misleading the Government about his involvement in the incident. The Judge resolved allegations about the presence of the illegal program on the company server and Applicant’s effort to hide the contraband in Applicant’s favor due to the passage of time without re-offense. However, he concluded that Applicant had not mitigated concerns arising from his omissions during his interview and in interrogatory answers. He stated that Applicant’s claim that the omissions were innocent was untrue and that, as a consequence, he could not find that Applicant had met his burden of persuasion as to mitigation.

DISCUSSION

Applicant contends that the Judge was biased against him. He cites to portions of the transcript in which the Judge questioned him concerning a possible false statement Applicant had made during his interrogatory answers and concerning his failure to admit his knowledge of the illegal technology. The Judge also questioned a witness to discover the extent to which he was aware of the facts underlying the SOR allegations. 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. 12-09421 at 2 (App. Bd. Nov. 15, 2017). We have considered this assignment of error in light of the Decision, the transcript, and the record as a whole. The Judge admitted all of Applicant’s evidence,1 permitted him to testify at length, and to call witnesses, who testified unimpeded, save for questions designed to explore a witnesses’s knowledge. We conclude that the Judge’s questioning of Applicant, though somewhat sharp at times, did not evidence an inflexible predisposition against him. In presenting his argument about bias, Applicant cites to the Judge’s having granted a Department Counsel motion to amend the SOR. The allegation in question originally stated, in pertinent part, that Applicant had failed to disclose that he had known that the computers were not actually being used to run the online game. As amended, the allegation stated that Applicant had failed to disclose that he had known that the computers were being used for software piracy as well as to run the online game. We review a Judge’s decision to amend an SOR for an abuse of discretion. See, e.g., ISCR Case No. 14-00019 at 4 (App. Bd. Sep. 18, 2014). In this case, the transcript shows that the Judge granted the proposed amendment in order to conform the SOR with the evidence, which is consistent with Directive ¶ E3.1.17. The Judge offered both parties additional time to present evidence in regard to the amended allegation. Applicant stated that he did not desire additional time. Tr. at 175. The Judge did not abuse his discretion in amending the SOR. In light of the above, we conclude that Applicant has not met his heavy burden of persuasion to rebut the presumption that the Judge was unbiased. The balance of Applicant’s appeal brief is a challenge to the Judge’s weighing of the evidence. In so doing, he argues that the Judge erred in finding Applicant’s presentation to be lacking credibility. We are required to give deference to a Judge’s credibility determinations. Directive ¶ E3.1.32.1. Applicant’s argument does not persuade us to withhold that deference. Moreover, an ability to argue for a different interpretation of the evidence is not enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No.15-07062 at 2 (App. Bd. Nov. 21, 2017). The concern under Guideline E addresses, among other things, an applicant’s failure to provide candid answers during national security investigative or adjudicative processes. The Directive provides that “refusal to provide full, frank, and truthful answers to lawful questions of investigators [or] security officials” will “normally result in an unfavorable . . . security clearance action[.]” Directive, Encl. 2, App. A, ¶ 15. Given evidence that Applicant deliberately failed to disclose his involvement in the illegal information technology, we find no reason to disturb the Judge’s overall adverse decision. The record supports a conclusion 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 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). See also Directive, Encl. 2, App. A ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”

ORDER

The Decision is AFFIRMED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board

FOOTNOTES

1 The Judge concluded that one of Applicant’s documents was a brief rather than an evidentiary exhibit. He made the brief part of the record, though he stated that he would consider it as argument rather than evidence. Tr. at 18- 19.