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ISCR Case 09-04933.a1 — CASE

ISCR Case 09-04933.a1denied

Case Headnote

ISCR Case No. 09-04933.a1

May 24, 2011· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance due to concerns under Guideline B (Foreign Influence), Guideline C (Foreign Preference), and Guideline E (Personal Conduct). The government raised disqualifying conditions under all three guidelines.

The denial was primarily based on the applicant's failure to provide sufficient mitigating evidence to overcome security concerns related to foreign influence and foreign preference. The judge's decision was found to be a reasonable evaluation of the evidence, providing a satisfactory explanation for the denial.

Upon appeal, the denial was affirmed. The appeal board concluded that even if there was an error regarding Guideline E, it was harmless. The adverse decisions under Guidelines B and C were independently sufficient to uphold the denial of the security clearance.

Conditions Referenced

Disqualifying

AG BraisedForeign Influence
AG CraisedForeign Preference
AG EraisedPersonal Conduct

Key Rule Quoted

“A party’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 that the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law.”

Procedural Posture

SOR issuedAug 13, 2010
Answer filed—
Hearing heldMar 14, 2011
Decision dateMay 24, 2011

Cite For

Affirmation of Denial Based on Insufficient Mitigating Evidence Under Guidelines B and C
Harmless Error Doctrine Regarding Guideline E
Standards for Evaluating Evidence in Security Clearance Cases

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 a denial of a security clearance based on concerns under Guidelines B, C, and E. The applicant argued that the Judge's decision was arbitrary and that he had mitigated the concerns. The Board affirmed the Judge's decision, finding no harmful error and that the Judge's conclusions were supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowHenry Lazzaro — denied the clearance

Decided onthe written record

Guidelines belowGuideline CGuideline BGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse 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 that the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for the decision, including a rational connection between the facts found and the choice made. The Board also noted that any error regarding Guideline E was deemed harmless as the adverse decisions under Guidelines B and C were sustainable.

Standard of review applied

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

Appeal Board panel

Michael Y. Ra’anan — Chair
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 C; Guideline B; Guideline E DIGEST: A party’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 that the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. Applicant has submitted new evidence on appeal, which the Board cannot consider. Adverse decision affirmed. CASE NO: 09-04933.a1 DATE: 05/24/2011 DATE: May 24, 2011 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-04933

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 August 13, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline C (Foreign Preference), Guideline B (Foreign Influence) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested the case be decided on the written record. On March 14, 2011, after considering the record, Administrative Judge Henry Lazzaro denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse clearance decision is arbitrary, capricious or contrary to law. Applicant argues that the Judge’s adverse decision should be reversed because the evidence is sufficient to establish that he mitigated the security concerns under Guidelines B and C, and that he did not deliberately and intentionally provide false information during the security clearance process as alleged under Guideline E. Along with his brief, he submits new evidence, in the form of additional explanations and several documentary exhibits. The Board cannot consider this new evidence on appeal. See Directive ¶ E3.1.29.

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 security 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. A party’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. 07-13837 at 2 (App. Bd. Sep. 28, 2010). With respect to the Guidelines B and C allegations, the Judge weighed the available evidence, evaluated the seriousness of the disqualifying circumstances, and considered the possible application of relevant conditions and factors. He reasonably explained why there was insufficient mitigating evidence to overcome the government’s security concerns. Decision at 5-6. The Board does not review a case de novo. After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the 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). Therefore, the Judge’s unfavorable security clearance decision under Guidelines B and C is sustainable. With respect to the Guideline E allegations, Applicant’s argument has merit, given the representations by Department Counsel in the case. See FORM at 16-17. However, because the Judge’s adverse decision under Guidelines B and C is sustainable, error in this regard would not change the ultimate outcome of the case, and is deemed harmless. See, e.g., ISCR Case No. 04- 11181 at 2 (App. Bd. May 8, 2007).

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, 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