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ISCR Case 07-06332.a1 — CASE

ISCR Case 07-06332.a1denied

Case Headnote

ISCR Case No. 07-06332.a1

May 9, 2008· Hon. Jeffrey D. Billett· appeal

Summary

A former information technology technician for a defense contractor was denied a security clearance under Guideline E (Personal Conduct) and Guideline M (Use of Information Technology). The denial stemmed from the applicant's unprofessional conduct during his employment.

Specifically, the applicant withheld critical passwords and codes from his employer and deleted necessary information. Although the applicant later reconstructed the deleted information, these actions were deemed to demonstrate a lack of responsibility and raised security concerns.

The judge found a rational connection between these facts and the adverse decision. The appeal was subsequently denied, affirming the initial findings that the applicant's conduct posed a security risk, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG E2raisedPersonal Conduct
AG M1raisedMisuse of Information Technology Systems

Key Rule Quoted

“. . . the decision was based off of submitted evidence that may or may not have pertained to my Federal Fraud cases and also all evidence submitted by the prosecution was not presented in its full process leading the administrative judge not to believe my testimony when given.”

Procedural Posture

SOR issuedJul 27, 2007
Answer filed—
Hearing heldFeb 6, 2008
Decision dateMay 9, 2008

Cite For

Denial of Security Clearance Based on Personal Conduct Under Guideline E
Denial of Security Clearance Based on Misuse of Information Technology Under Guideline M
Ineffective Assistance of Counsel Is Not a Basis for Appeal in DOHA Proceedings.

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 concerns under Guideline M and Guideline E. The applicant raised issues regarding ineffective assistance of counsel and the introduction of evidence by Department Counsel. The Board affirmed the Judge's decision, finding no harmful error that would change the outcome.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMatthew E. Malone — denied the clearance

Decided ona hearing

Guidelines belowGuideline MGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant alleged ineffective assistance of counsel and other errors in the Judge's findings and conclusions.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge ignored evidence related to his complaints against his employer.
Erroneous finding of fact — raised by the applicantError found, but harmless
Applicant identified a factual error regarding the agency to which he filed a complaint, which was deemed harmless.

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 that the alleged errors did not warrant a reversal or remand. The Judge's findings were rationally connected to the evidence presented.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Jeffrey D. Billett
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 m; Guideline e DIGEST: Ineffective assistance of counsel is not a basis for appeal. DOHA proceedings are civil not criminal. Adverse decision affirmed. CASENO: 07-06332.a1 DATE: 05/09/2008 DATE: May 9, 2008 In Re: ------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-06332

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Eric Borgstrom, Esq., Department Counsel FOR APPLICANT Pro Se

The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On July 27, 2007, DOHA issued a statement of reasons advising Applicant of the basis for that decision—security concerns raised under Guideline M (Misuse of Information Technology Systems) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992), as amended (Directive). Applicant requested a hearing. On February 6, 2008, after the hearing, Administrative Judge Matthew E. Malone 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 issues on appeal: whether Applicant’s allegation of ineffective assistance of counsel constitutes error; whether Department Counsel’s introduction of certain evidence was in bad faith and therefore a violation of due process; and whether the Judge committed error in his findings and conclusions. The Judge made the following factual findings: Between March 2005 and May 2006, Applicant was employed by a defense contractor as an information technology technician. In addition to his normal duties, Applicant offered to develop a computer program to help the contractor manage its projects. Applicant’s program contained passwords and codes, including source and expiration codes, which the company had not required and which Applicant did not initially share with his employer. At one point, an expiration code triggered automatically and caused a database to stop working. Applicant was subsequently told he would be fired if he did not supply the passwords and codes to his employer, which he had initially refused to do. At another point, Applicant deliberately deleted a folder containing some of the codes, although he was able to reconstruct the codes during the next ten days. Applicant eventually provided some of the information after he was reminded that he had signed a Patent and Trade Secret Agreement which required him to do so. Applicant was let go as part of a reduction in force. In March 2006, Applicant filed a complaint against his employer alleging discrimination, harassment, and other types of misconduct by his supervisors. After he was let go, Applicant filed a complaint alleging that he lost his job in retaliation for his earlier complaint. Applicant testified that his complaints were still being investigated, but in September 2006 an investigation by the Department of the Army concluded that there was no basis for Applicant’s allegations of wrongdoing by his supervisors. Decision at 3. In April 2007, the Army Inspector General concluded that Applicant lost his job due to reduced manpower needs and Applicant’s unprofessional conduct. Decision at 4. In his appeal brief, Applicant repeats the arguments he made at the hearing. His appeal also contains a series of e-mails, including an e-mail exchange in November 2007 between Applicant and the Government Accountability Office (GAO). To the extent the brief contains evidence not presented at the hearing, it proffers new evidence, which the Board may not consider on appeal. See Directive ¶ E3.1.29. Ineffective assistance of counsel is not a basis for appeal. DOHA proceedings are civil, not criminal, in nature, and the ineffective assistance of counsel doctrine does not apply to them. See, e.g., ISCR Case No. 98-0515 at 3 (App. Bd. Mar. 23, 1999); ISCR Case No. 96-0127 at 2 (App. Bd. Jul. 29, 1997). The actions or inactions of Applicant’s hearing lawyer do not provide a basis for the Board to conclude that the Judge’s decision should be reversed or remanded. See, e.g., ISCR Case No. 01-07629 at 2-3 (App. Bd. Apr. 5, 2002). “. . . the decision was based off of submitted evidence that may or may not have pertained to my Federal Fraud cases and also all evidence submitted by the prosecution was not presented in its full process leading the administrative judge not to believe my testimony when given.” The complaints were not part of the SOR allegations against Applicant. However, Applicant contends that the complaints at least indirectly caused the dispute with his employer which, in his view at least, led to the SOR allegations.

While the language in Applicant’s appeal brief is not clear, it appears that he is arguing that Department Counsel acted in bad faith in introducing certain evidence pertaining to Applicant’s two complaints against his employer and that Applicant was thereby denied due process. There is a rebuttable presumption that federal officials and employees carry out their duties in good faith. See, e.g., ISCR Case No. 03-21329 at 1 (App. Bd. Sep. 25, 2006). A party seeking to rebut that presumption has a heavy burden of persuasion on appeal. Applicant has not met that burden, because he has not identified anything in the record that suggests a basis for a reasonable person to conclude that Department Counsel acted improperly. Applicant’s two complaints, one to GAO in March 2006 and one to the DoD IG in April 2007, were a source of confusion. It appears that the GAO complaint was investigated at least in part by the Inspector General of the Army (Army IG). Among the government’s exhibits, Department Counsel submitted documents stating that the investigation of the first complaint by the Army IG was closed, at least as to the issues listed, and that the investigation by the DoD IG was closed. Department Counsel gave copies of those documents to Applicant before the hearing. Applicant had the opportunity to refute those documents. Applicant also had the opportunity to supplement the record if he felt that Department Counsel’s documentary submissions were incomplete or misleading. It appears that Applicant had written evidence from GAO before his hearing that the investigation of his first complaint was still ongoing, but he did not submit it. Furthermore, when Applicant testified that the GAO investigation was still open, he did not indicate that he had documentation for his assertion. Applicant also states that he was assured by two sources that the investigation of the second complaint was still open, but he did not document or submit that information for the hearing. Applicant has not demonstrated denial of due process. Applicant cites sections from the Judge’s decision which he asserts contain errors. Applicant does identify one factual error: the Judge stated that in 2007 Applicant filed a complaint with the Army IG, while Applicant actually filed that complaint with the DoD IG. That error is harmless, since that fact alone would not affect the Judge’s ultimate conclusions. Applicant states his disagreement with other portions of the Judge’s decision, but those portions involve the Judge’s characterization and weighing of the evidence. Applicant’s explanations of his actions were relevant and material evidence that the Judge had to consider. However, the Judge was not bound to accept Applicant’s explanations at face value. As the trier of fact, the Judge had to consider Applicant’s statements in light of the record evidence as a whole. See, e.g., ISCR Case No. 01-20579 at 5 (App. Bd. Apr. 14, 2004). The fact that Applicant does not agree with the Judge’s findings and conclusions, or can offer an alternative interpretation of the record evidence, does not establish error on the part of the Judge. The Board has examined the Judge’s decision in light of the record as a whole. The Judge has drawn “a rational connection between the facts found” and his adverse decision. 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 Judge’s finding that Applicant wrongfully denied his employer and the U.S. Army access to a necessary computer program and his ultimate conclusion that Applicant was ineligible for a security clearance are sustainable.

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett 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