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ISCR Case 17-02391.a1 — CASE

ISCR Case 17-02391.a1denied

Case Headnote

ISCR Case No. 17-02391.a1

Aug 7, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A defense contractor with prior military service was denied a security clearance due to concerns under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The applicant's past marijuana use and failure to disclose it on two security clearance applications were central to the decision.

Specifically, the applicant's omission of past marijuana use was deemed a deliberate falsification. The judge determined that the applicant's admissions regarding drug use came too late to mitigate the severity of these omissions. Furthermore, the applicant did not provide evidence of seeking counseling for his conduct, which weakened his case.

Despite some mitigating evidence being considered, the appeal board affirmed the denial. The board concluded that the applicant did not overcome the presumption of bias against him and failed to demonstrate that the judge's decision was arbitrary or capricious.

Conditions Referenced

Disqualifying

AG ¶ 16raisedCriminal Conduct
AG ¶ 15raisedPersonal Conduct

Mitigating

AG ¶ 20appliedMitigating CircumstancesThe judge found the drug involvement allegations mitigated.

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 21, 2017
Answer filed—
Hearing heldApr 20, 2018
Decision dateAug 7, 2018

Cite For

Denial Based on Failure to Disclose Drug Use Under Guideline E
Rebuttable Presumption of Bias Against the Judge
Mitigating Circumstances Under Guideline H Not Sufficient to Overcome 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 was brought by the applicant after the Administrative Judge denied his request for a security clearance based on concerns under Guideline H and Guideline E. The applicant argued that the Judge was biased and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no bias and that the decision was supported by substantial evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRobert E. Coacher — denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline E

What the Board reviewed

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

Why the Board ruled this way

The Board found no evidence of bias from the Judge and concluded that the Judge's decision was not arbitrary or capricious, affirming the denial of the security clearance.

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
James E. Moody
Charles C. Hale

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; Guideline H DIGEST: After considering the totality of the evidence and paying particular attention to the transcript of the hearing, we conclude that the Judge did not evidence bias. He permitted Applicant to raise objections, present evidence, and call and examine witnesses, as the Directive provides. The Judge sustained Applicant’s objections to two Government exhibits due to lack of authentication. In fact, the Judge’s admonition to counsel to sit down occurred during Department Counsel’s later efforts to lay a foundation for these documents, which were not successful. The Judge explicitly stated that he would not consider the contents of these two exhibits, and there is nothing in the Decision to suggest otherwise. Adverse decision affirmed. CASENO: 17-02391.a1 DATE: 08/07/2018 DATE: August 7, 2018 In Re: ------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 17-02391

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Ryan C. Nerney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On August 21, 2017, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline H (Drug Involvement and Substance Misuse) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On April 20, 2018, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Robert E. Coacher 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 him and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guideline H are not at issue in this appeal. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant has worked for a Defense contractor since mid-2016. He served in the military from 2009 until 2013, which included a deployment to the Middle East. Applicant has held a clearance since 2010. Applicant used marijuana in 2008, before he joined the military. After his discharge, he smoked marijuana offered to him by a friend. He presented evidence of drug tests in 2017 and 2018, which were negative. He signed a statement of intent not to use drugs in the future. In 2009, while still in the military, Applicant completed two security clearance applications (SCA). In neither of these did he disclose his marijuana use. He did disclose the use in his 2015 SCA. In his Answer to the SOR, Applicant admitted that he “consciously and willingly, attempt[ed] to hide the fact that I had consumed marijuana[.]” Decision at 3. This answer is consistent with his testimony at the hearing. Applicant realizes now that it was wrong to lie on his two SCAs. He states that he is now a different man, older and more mature. Co-workers, who were aware of Applicant’s security- significant conduct, testified that he should have a clearance. He also provided letters of support from colleagues and certifications that he has earned. The Judge’s Analysis Though finding the Drug Involvement allegations mitigated, the Judge concluded that Applicant had not mitigated his deliberate falsifications of his two SCAs. The Judge noted that, having lied on his SCAs, Applicant served an entire military enlistment without notifying anyone of his misconduct. Moreover, Applicant’s acknowledgment of his drug use occurred six years after his omissions, and there is no evidence that Applicant has sought counseling for his conduct. Though citing evidence of Applicant’s military service, work performance, and changed circumstances such as marriage, the Judge concluded that Applicant’s omissions were solely for personal gain–that is, qualifying for an enlistment. Applicant had numerous opportunities to correct his omissions but failed to do so.

DISCUSSION

Applicant contends that the Judge was biased against him. 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). “[E]xpressions of impatience, dissatisfaction, annoyance, even anger” do not establish bias. “A judge’s ordinary efforts at courtroom administration–even a stern and short-tempered judge’s ordinary efforts at courtroom administration–remain immune.” Liteky v. United States, 510 U.S. 540 at 555-556 (1994). During cross examination, Applicant’s counsel objected to questions posed by Department Counsel in an effort to authenticate an interview summary. [Department Counsel]: [W]ould you concur that those are places that you might have lived in the 2007 to 2009 time frame? [Applicant Counsel]: Objection, assumes facts not in evidence. [Judge]: Overruled. [Applicant Counsel]: Well, I just, your honor, I have to - [Judge]: This is cross-examination, counsel. Overruled. [Applicant Counsel]: May I address the court? [Judge]: Overruled. [Applicant Counsel]: May I address the - [Judge]: I’ve made, I’ve made a ruling. You can sit down. Go ahead, counsel. Tr. at 56-57. During closing argument, the following colloquy took place: [Applicant Counsel]: “[T]here was a demeaning and disparaging cross-examination, and pressuring my client. . . The court prevented me from making objections, I want to put that on the record and I think that’s contrary to the [D]irective. I am absolutely allowed to make objections. [Judge]: You made your objections, you want to explain after I made a ruling. [Applicant Counsel]: Right, and you said no more objections. So, you told me to sit down. A bit later during argument, Applicant’s counsel accused the Judge of bias. [Applicant Counsel]: I’ve never seen a judge come off and tell an attorney he’s quote unquote sit down. That’s demeaning and totally inappropriate and so I want to make- [Judge]: Do you have any evidence of bias, [counsel] you want to put on the record? [Applicant Counsel]: Yes, your -- I just did. [Judge]: That wasn’t evidence, you’re arguing now. You know the difference between argument and evidence? [Applicant Counsel]: You’re asking a lawyer with 40 years’ experience if I know the difference between evidence and argument, is that what you’re asking me? [Judge]: This is the argument phase of this case, that’s all I’m going to say. Tr. at 91-92. After considering the totality of the evidence and paying particular attention to the transcript of the hearing, we conclude that the Judge did not evidence bias. He permitted Applicant to raise objections, present evidence, and call and examine witnesses, as the Directive provides. The Judge sustained Applicant’s objections to two Government exhibits due to lack of authentication. Tr. at 15. In fact, the Judge’s admonition to counsel to sit down occurred during Department Counsel’s later efforts to lay a foundation for these documents, which were not successful. The Judge explicitly stated that he would not consider the contents of these two exhibits, and there is nothing in the Decision to suggest otherwise. Tr. at 83. Although the Judge may have responded testily to Applicant’s counsel, we find nothing in his comments or in the Decision to suggest that he had an inflexible predisposition to render a holding that was adverse to Applicant. To the contrary, the Judge’s comments appear to have been part of his effort to administer the hearing in an orderly and efficient manner. The Judge found for Applicant on the allegations under Guideline H. Applicant has not met his heavy burden of persuasion that the Judge was biased against him. We resolve this issue adversely to Applicant. The balance of Applicant’s brief is a contention that the Judge did not consider all of the evidence or that he mis-weighed the evidence. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record, nor has he shown that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 16-01077 at 3 (App. Bd. Apr. 25, 2018). We give due consideration to the Hearing Office case that Applicant has addressed in his brief. However, Hearing Office Decisions are not binding on other Hearing Office Judges or on the Appeal Board. Id. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The 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 Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board