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ISCR Case 07-06952.a1 — CASE

ISCR Case 07-06952.a1denied

Case Headnote

ISCR Case No. 07-06952.a1

Apr 24, 2008· Hon. Michael D. Hipple· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance primarily due to concerns under Guideline B (Foreign Influence). The denial stemmed from the applicant's close family ties in Iran, which were identified as significant disqualifying conditions.

While the judge found in favor of the applicant under Guideline C (Foreign Preference), the serious nature of the foreign influence concerns under Guideline B outweighed the mitigating evidence presented. The judge concluded that the applicant's evidence was insufficient to overcome the identified disqualifying circumstances.

The appeal board affirmed the denial, stating that the applicant's arguments did not demonstrate an error in the judge's decision. The board found that the applicant's alternative interpretations of the evidence did not prove the judge's conclusions were arbitrary or capricious, thus upholding the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 6raisedForeign Influence

Mitigating

AG ¶ 8rejectedMitigating ConditionsThe judge articulated that the mitigating evidence was insufficient to overcome the serious security concerns.

Key Rule Quoted

“The adjudicative process is the careful weighing of a number of variables known as the whole-person concept.”
— Directive at ¶ E2.2(a)

Procedural Posture

SOR issuedSep 25, 2007
Answer filed—
Hearing heldJan 18, 2008
Decision dateApr 24, 2008

Cite For

Weighing of Mitigating Evidence Against Disqualifying Circumstances Under Guideline B
Insufficient Mitigation Does Not Compel a Favorable Decision
The Whole-person Concept in Adjudicative Processes

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 filed by the applicant after the Administrative Judge denied his request for a security clearance based on security concerns under Guideline B. The applicant argued that the Judge's decision was arbitrary and capricious, but the Board affirmed the decision, finding no harmful error in the Judge's reasoning and weighing of evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowCarol G. Ricciardello — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline BGuideline C

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge’s adverse security clearance decision under Guideline B is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the applicant's arguments did not demonstrate harmful error. The Judge reasonably weighed the evidence and articulated a rational explanation for the unfavorable determination under the disqualifying and mitigating factors.

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 D. Hipple
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 B; Guideline C DIGEST: Hearing level decisions are not legally binding precedent. Applicant’s alternative interpretation of the record is not sufficient to demonstrate error. Adverse decision affirmed. CASENO: 07-06952.a1 DATE: 04/24/2008 DATE: April 24, 2008 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-06952

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT James J. McKee, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On September 25, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline B (Foreign Influence) and The Judge found in favor of Applicant under Guideline C and with respect to SOR paragraph 1(b). Those favorable findings are not at issue on appeal. Guideline C (Foreign Preference) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On January 18, 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’s adverse security clearance decision under Guideline B is arbitrary, capricious, or contrary to law. Applicant contends that the Judge erred in concluding that the security concerns raised under Guideline B had not been mitigated. In support of that contention, Applicant essentially restates the facts of his case and argues that the Judge did not give adequate weight to the favorable evidence. Based upon the record as a whole, Applicant asserts that the security concerns presented by his ties to Iran were outweighed by his ties to the United States and his favorable character references. Applicant also argues that the Judge’s overall unfavorable conclusion is inconsistent with another hearing-level decision in which an applicant in ostensibly similar circumstances had been granted a clearance. Applicant’s arguments do not demonstrate error on the part of the Judge. The Board gives due consideration to the case cited by Applicant. See, e.g., ISCR Case No. 06-05903 at 3 (App. Bd. Oct. 15, 2007). However, the Board has previously noted that decisions in other hearing-level cases are not legally binding precedent, even if an applicant can establish close factual similarities between those cases and his case. See, e.g., ISCR Case No. 04-04004 at 2 (App. Bd. Jul. 31, 2006). Accordingly, the Judge was not legally obligated to reconcile her decision in this case with her decision in another ostensibly similar case. See, e.g., ISCR Case No. 02-24752 at 3 (App. Bd. Jul. 31, 2006). “The adjudicative process is the careful weighing of a number of variables known as the whole-person concept.” Directive at ¶ E2.2(a). “Each case must be judged on its own merits . . .” Id at ¶ E2.2(b).

Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The presence of some mitigating evidence does not alone compel the Judge to make a favorable clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. See, e.g., ISCR Case No. 06-09542 at 2 (App. Bd. Sep. 4, 2007). An applicant’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 04-08116 at 2 (App. Bd. Jul. 2, 2007). A review of the Judge’s decision indicates that the Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying circumstances, and considered the possible application of relevant mitigating conditions and factors. The Judge found in favor of Applicant with respect to several of the factual allegations. However, she reasonably explained why the evidence which the Applicant had presented in mitigation was insufficient to overcome all the government’s security concerns. The Judge’s decision exhibits a discerning weighing of a number of variables to reach a commonsense determination. Directive ¶ E2.2(c). In some instances, this process led to favorable findings for Applicant. However, the Judge also articulated a reasonable concern that Applicant's circumstances could create a conflict of interest or be used to influence, manipulate, or pressure him. That concern is based on close family ties in Iran, considered in the context of the overall political/security profile of that country vis-a-vis the United States. Applicant offers an alternative interpretation of the record evidence. However, that alternative interpretation of the record evidence is insufficient to render the Judge’s interpretation arbitrary, capricious or contrary to law. See, e.g., ISCR Case No. 03-19101 at 2 (App. Bd. Oct. 13, 2006). The Judge has articulated a rational explanation for her unfavorable determination under the disqualifying and mitigating factors and the whole-person concept, and there is sufficient record evidence to support that determination—given the standard that required the Judge to err on the side of national security. Directive ¶ E2.2(b).

ORDER

The decision of the Judge denying Applicant a clearance is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, 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