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ISCR Case 07-08526.a1 — CASE

ISCR Case 07-08526.a1denied

Case Headnote

ISCR Case No. 07-08526.a1

Feb 25, 2009· Hon. Jeffrey D. Billett· appeal

Summary

The applicant, a senior associate at a government contractor with a background in physics and international security, was denied a security clearance under Guideline B (Foreign Influence). This denial was affirmed by the appeal board, which found that the applicant had not adequately mitigated the security risks posed by his foreign connections.

Key concerns included the applicant's wife being a Russian citizen and his in-laws residing in Russia, with his father-in-law identified as a former government employee. The applicant also maintained regular contact with other Russian citizens, some of whom had military and government backgrounds.

Despite some errors in the judge's initial findings, these were deemed harmless, and the board concluded that the applicant's ties to Russian citizens, particularly those with government or military affiliations, presented unmitigated security risks. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 7raisedForeign Influence

Mitigating

AG ¶ 8rejectedMitigating ConditionsThe applicant did not provide sufficient evidence to mitigate the security concerns related to his foreign connections.

Key Rule Quoted

“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 issuedApr 25, 2008
Answer filed—
Hearing heldNov 28, 2008
Decision dateFeb 25, 2009

Cite For

Security Concerns Related to Foreign Influence Under Guideline B
Harmless Error Doctrine in Security Clearance Decisions
The Standard for Granting Security Clearances as Being Clearly Consistent with National Security

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 due to concerns related to foreign influence, specifically connections to Russia. The applicant argued that the Judge's findings were erroneous and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error and that the decision was supported by substantial evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJoan Caton Anthony — denied the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that certain of the Judge’s factual findings were based upon insufficient evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law.

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 no harmful error in the Judge's decision and concluded that the adverse security clearance decision was supported by substantial evidence. The Judge's findings were rationally connected to the ultimate decision regarding national security.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Jeffrey D. Billett
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 DIGEST: Applicant failed to mitigate security concerns arising from his connections in Russia. Any errors in the Judge’s decision are harmless. Adverse decision affirmed. CASENO: 07-08526.a1 DATE: 02/25/2009 DATE: February 25, 2009 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-08526

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Emilio Jaksetic, Esq., Department Counsel FOR APPLICANT Richard Murray, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On April 25, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On November 28, 2008, after the hearing, Administrative Judge Joan Caton Anthony denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether certain of the Judge’s factual findings were based upon substantial record evidence and whether the Judge’s adverse security The Judge’s favorable findings under SOR paragraphs 1(e) and (g - i) are not at issue in this appeal. clearance decision is arbitrary, capricious, or contrary to law. Finding no harmful error, we affirm. The Judge made the following pertinent findings of fact: Applicant is employed as a senior associate by a government contractor. He received a B.S. in physics from a U.S. university and pursued graduate studies in international security at another. He has held a security clearance since the early 1980s. Applicant’s wife is a Russian citizen residing with him in the U.S. His parents-in-law are citizens and residents of Russia. His father-in-law retired from the Russian government in the early 2000sand is currently employed as a security consultant. Applicant’s wife speaks to her mother on the phone weekly and travels to Russia twice a year on business. She also has an older half-sister, who is a citizen and resident of Russia. Applicant has professional dealings and personal friendships with two Russian citizens. One had previously served in the Russian military in an intelligence unit. The other had served in the Russian government and currently resides in the U.S., employed by an international organization. Applicant has regular contact with both. Russia has a poor human rights record, monitoring internet and e-mail traffic. It targets U.S. technologies, and its Federal Security Service, successor organization to the KGB, operates outside the U.S., targeting national security researchers. The Board concludes that the Judge’s material findings of security concern are supported by substantial record evidence. See Directive ¶ E3.1.32.1. (Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.”) Applicant asserts that certain of the Judge’s findings are erroneous, for example the extent to which Applicant may have failed to inform his employers of his foreign contacts. Department Counsel concedes that some of the findings challenged by Applicant are erroneous. However, viewed in light of the Judge’s sustainable findings concerning the nature and extent of Applicant’s foreign relatives and associates, and in light of the record as a whole, the Board concludes that any factual errors in the decision are harmless. See ISCR Case No. 06-23112 at 2 (App. Bd. Dec. 31, 2007); ISCR Case No. 00-0250 at 6 (App. Bd. Jul. 11, 2001). The Judge has drawn a rational connection between the facts found and her ultimate adverse security clearance decision, both as regards the mitigating conditions and the whole-person factors. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). See also 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 decision that “it is not clearly consistent with national security to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 13. See also Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security’”).

ORDER

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