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ISCR Case 07-00062.a1 — CASE

Case record

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

Decision Date12/5/2008
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 07-00062) →
Participants
Applicant Representation: Pro Se
Judge: Jean E. Smallin, Michael D. Hipple, William S. Fields
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline EPersonal Conduct · Against Applicant
- Guideline HDrug Involvement & Substance Misuse · Against Applicant
- Guideline JCriminal Conduct · For Applicant

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Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
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ISCR Case 07-00062.a1denied

Case Headnote

ISCR Case No. 07-00062.a1

Dec 5, 2008· Hon. Jean E. Smallin· appeal

Summary

An applicant, representing himself, was denied a security clearance based on concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The judge, however, found in favor of the applicant under Guideline J (Criminal Conduct).

The denial was affirmed by the appeal board. The board concluded that the applicant failed to demonstrate bias on the part of the judge and did not meet the burden of persuasion regarding the judge's impartiality. The judge had reasonably explained why the mitigating evidence presented was insufficient to overcome the government's security concerns.

Specific disqualifying conditions raised included AG ¶ 15, AG ¶ 24, and AG ¶ 16, while mitigating conditions AG ¶ 20, AG ¶ 22, and AG ¶ 19 were applied but ultimately deemed insufficient.

Conditions Referenced

Disqualifying

AG ¶ 15raisedCriminal Conduct
AG ¶ 24raisedDrug Involvement
AG ¶ 16raisedPersonal Conduct

Mitigating

AG ¶ 20appliedCriminal Conduct
AG ¶ 22rejectedDrug Involvement
AG ¶ 19rejectedPersonal Conduct

Key Rule Quoted

“There is a rebuttable presumption that a Judge is impartial and unbiased.”
— ISCR Case No. 02-08032 at 4 (App. Bd. May 14, 2004)

Procedural Posture

SOR issuedJun 19, 2008
Answer filed—
Hearing heldSep 19, 2008
Decision dateDec 5, 2008

Cite For

Rebuttable Presumption of Judicial Impartiality
Insufficient Evidence to Demonstrate Bias
Consideration of Mitigating Evidence Against 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 who was denied a security clearance based on concerns under Guidelines J, H, and E. The applicant argued that the Administrative Judge was biased. The Board affirmed the Judge's decision, finding no evidence of bias and that the Judge's conclusions were reasonable and supported by the record.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCarol G. Ricciardello — denied the clearance

Decided ona hearing

Guidelines belowGuideline JGuideline HGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge was biased.

Why the Board ruled this way

The Board found no evidence of bias and determined that the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for her decision.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Michael D. Hipple
Jean E. Smallin
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 J; Guideline H; Guideline E DIGEST: There is a rebuttable presumption that a Judge is impartial and unbiased.. The issue is not whether a party personally believes the Judge was biased or unfair, but whether the record contains any indication that the Judge acted in a manner that would lead a reasonable person to question the Judge’s impartiality. Applicant has failed to meet his heavy burden of persuasion on this issue. Adverse decision affirmed. CASENO: 07-00062.a1 DATE: 12/05/2008 DATE: December 5, 2008 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-00062

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 June 19, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline J (Criminal Conduct), Guideline H (Drug Involvement) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 19, 2008, after the hearing, Administrative Judge Carol G. Ricciardello denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge was biased. Applicant argues that Judge was biased, essentially based upon the fact that the Judge did not find Applicant’s favorable evidence sufficient to mitigate the government’s security concerns. The Board does not find this argument persuasive. There is a rebuttable presumption that a Judge is impartial and unbiased, and a party seeking to rebut that presumption has a heavy burden of persuasion. See, e.g., ISCR Case No. 02-08032 at 4 (App. Bd. May 14, 2004). The issue is not whether Applicant personally believes the Judge was biased or unfair, but whether the record contains any indication the Judge acted in a manner that would lead a reasonable person to question the fairness and impartiality of the Judge. See, e.g., ISCR Case No. 06-09462 at 2 (App. Bd. Jul. 19, 2007). Lack of partiality is not demonstrated merely because the Judge made adverse findings or reached unfavorable conclusions. Id. Moreover, even if an appealing party demonstrates error by the Judge, proof of such error, standing alone, does not demonstrate the Judge was biased or prejudiced. See, e.g., ISCR Case No. 04-03834 at 2 (App. Bd. Jul. 2, 2007). Applicant has not met the heavy burden of persuasion noted above, in that he fails to identify anything in the record below that indicates or suggests a basis for a reasonable person to question the fairness, impartiality, or professionalism of the Judge. See, e.g., ISCR Case No. 03-00740 at 2 (App. Bd. Jun. 6, 2006). A review of the record indicates that the Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. She found in favor of Applicant under Guideline H and with respect to several of the factual allegations under Guidelines J and E. However, she reasonably explained why the evidence which Applicant had presented in mitigation was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. The favorable record evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007). The Judge examined the relevant data and articulated a satisfactory explanation for her 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). Accordingly, the Judge’s adverse decision is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board