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ISCR 03-08257.a2: Guideline E security clearance appeal, denied (2008) · CASE

ISCR Case 03-08257.a2denied

Case headnote

ISCR Case No. 03-08257.a2

May 16, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

A former electrical engineer for a government contractor was denied a security clearance under Guideline K (Handling Protected Information) and Guideline E (Personal Conduct) due to multiple infractions involving the mishandling of classified information. The appeal board affirmed the judge's decision to deny the clearance.

The denial was based on several factors. The applicant failed to demonstrate that the judge was biased against him, and the judge's conclusions regarding both Guideline K (specifically, Disqualifying Condition K.1) and Guideline E (specifically, Disqualifying Condition E.2) were supported by substantial evidence.

Ultimately, the applicant did not meet the burden of persuasion to show that granting a security clearance would be consistent with the national interest. As a result, the security clearance was denied.

Conditions referenced

Disqualifying

K.1raisedSecurity Violations
E.2raisedPersonal Conduct

Key rule quoted

“An Applicant’s security related conduct can be alleged under more than one Guideline and, in an appropriate case, can be given independent weight by an administrative judge under different Guidelines.”
ISCR Case No. 04-09251 at 3 (App. Bd. Mar. 27, 2007)

Procedural posture

SOR issuedMar 23, 2005
Answer filed—
Hearing heldJun 12, 2006
Decision dateMay 16, 2008Appeal board affirmed the decision.

Cite for

Affirmation of Adverse Decisions Based on Security Violations Under Guideline K
Importance of Burden of Persuasion in Security Clearance Cases
Independent Weight of Conduct Under Multiple Guidelines

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 Guidelines K and E. The applicant argued that the Judge was biased and that the conclusions were inconsistent. The Board found no harmful error and affirmed the Judge's decision.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJoan Caton Anthony denied the clearance

Decided ona hearing

Guidelines belowGuideline KGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant alleged that the Judge's whole-person analysis is arbitrary and capricious.
Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant argued that the Judge erred in concluding that certain of the Guideline E allegations constitute security concerns.
Erroneous finding of fact, raised by the applicantRejected
Applicant contended that the Judge's conclusions under Guidelines K and E are inconsistent.
No specific harmful error alleged, raised by the applicantNot reached
Applicant alleged that the Judge was biased against him.

Why the Board ruled this way

The Board found no harmful error in the Judge's conclusions regarding the Applicant's security concerns under Guidelines K and E, affirming the adverse decision based on substantial evidence and rational connections between the findings and conclusions.

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 Y. Ra’anan (Chair)
William S. Fields
James E. Moody

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 K; Guideline E DIGEST: Applicant has not met his heavy burden of persuasion that the Judge was biased against him. The Judge did not err in holding against Applicant under Guideline E misconduct which was resolved in Applicant’s favor under Guideline K. Adverse decision affirmed. CASENO: 03-08257.a2 DATE: 05/16/2008 DATE: May 16, 2008 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 03-08257

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Emilio Jaksetic, Esq., Department Counsel FOR APPLICANT William F. Savarino, Esq. The Judge’s favorable decision as to SOR ¶¶ 1(a) through (e) and 2(b) is not at issue in this appeal. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On March 23, 2005, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline K (Security Violations) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992), as amended (Directive). Applicant requested a hearing. On June 12, 2006, after the hearing, Administrative Judge Joan Caton Anthony denied Applicant’s request for a security clearance. Applicant submitted a timely appeal pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. On February 8, 2007, the Board remanded the case to the Judge for a new hearing. On January 31, 2008, the Judge issued her remand decision, again denying Applicant a security clearance. Applicant submitted a timely appeal pursuant to the Directive. Applicant raises the following issues on appeal: whether the Judge’s conclusions under Guidelines K and E are inconsistent; whether the Judge erred in concluding that Applicant’s case raised Guideline K security concerns; whether the Judge erred in concluding that certain of the Guideline E allegations constitute security concerns; and whether the Judge’s whole-person analysis is arbitrary and capricious. We also construe Applicant’s appeal as alleging that the Judge was biased against him. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant worked for a government contractor from July 1986 to March 1987. He was counseled and/or issued “deficiency notices” for such infractions as poor work performance, failure to follow procedures, failure to meet production deadlines, and unprofessional demeanor. His employer fired him in March 1987 for having violated its business practices and ethics. Specifically, Applicant had signed the names of fellow employees to a volleyball roster without their knowledge or consent. Applicant then went to work for a second employer but left his job “under threat of termination.” Decision at 5. From 1996 until 2005 Applicant worked for a government contractor as an electrical engineer. He was responsible for protecting classified information, although he did not have classification authority. Therefore, he had to rely upon agency guidance in determining what was and was not classified. In 1999 Applicant received a spreadsheet. Pursuant to his official duties, he put information on it and then passed it to another individual, who put the spreadsheet on an unclassified website. Later that year, after Applicant had updated the spreadsheet, he sent it by e-mail to officials in another office. These officials stated that the spreadsheet contained classified information. Although Applicant’s supervisors did not agree, “they eventually acceded to the designation proposed by the other office.” Id. In 2000, Applicant, on three occasions, committed security See Government Exhibit 2-10, E-Mail Communication Concerning Security Issues, Nov. 7, 2000. “I have continuing concerns over the way [Applicant] handles classified information. Today, during the . . . meeting, he started to copy an unclassified file from a classified laptop to move it to the unclassified projection computer–without using secure copy. Had he continued, the projection computer would have become classified. Second, he had an unmarked disk he was using to store the files for the briefing.” Department Counsel also interprets Applicant’s appeal as alleging that certain of the Judge’s findings of fact are erroneous. The Board concludes that the Judge’s material findings of security concern are supported by substantial record evidence. See Directive ¶ E3.1.32.1. infractions by failing to initial a security checklist prior to closing the office and twice failing to secure combination locks and take other measures to secure his work facility. In May 2000 Applicant was observed at a meeting attempting to copy an unclassified file from a classified laptop without using appropriate security procedures. He also used unmarked disks to store briefing files and left the briefing room without securing the classified laptop. Finally, in July 2000 Applicant attended a briefing, some of which was classified. He prepared a summary of the matters discussed and sent it to two military officers who had conducted the meeting. Not hearing back from the officers except upon a collateral matter, Applicant sent the summary by e-mail on an unclassified network to several people in his office. It was later determined that the summary contained classified information. Applicant was reassigned to another office. We have examined Applicant’s allegations of error in light of the record as a whole. Applicant has not met his heavy burden of persuasion that the Judge was biased against him. The record would not lead a reasonable person to question the fairness or impartiality of the Judge. See ISCR Case No. 05-04923 at 2 (App. Bd. Apr. 24, 2007). We conclude that the Judge did not err in holding against Applicant under Guideline E for misconduct she has resolved in his favor under Guideline K. “An Applicant’s security related conduct can be alleged under more than one Guideline and, in an appropriate case, can be given independent weight by an administrative judge under different Guidelines.” ISCR Case No. 04-09251 at 3 (App. Bd. Mar. 27, 2007). In the case under consideration, the Judge has articulated a rational basis for her conclusions under Guideline E, and her adverse decision on those matters is sustainable.

The Judge properly concluded that Applicant’s case raised security concerns under Guidelines K and E. Furthermore, she has drawn a “rational connection between the facts found” and her conclusion that neither the various mitigating conditions nor the whole-person factors support a decision favorable to Applicant. See 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 presence of some mitigating evidence does not alone compel a favorable overall security clearance decision. See, e. g., ISCR Case No. 05-03452 at 3 (App. Bd. Jul. 3, 2007). The record supports the Judge’s conclusion that Applicant has failed to meet his burden of persuasion that it is “clearly consistent with the national interest” for him to have a clearance. See Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board