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ISCR Case 12-09886.a1 — CASE

ISCR Case 12-09886.a1denied

Case Headnote

ISCR Case No. 12-09886.a1

May 8, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance was denied to a female applicant under Guideline E (Personal Conduct) due to a history of questionable judgment and multiple job terminations. The applicant claimed workplace harassment was the cause of her employment issues; however, the judge determined her problems were self-inflicted.

The judge found no evidence to support the applicant's claims that her terminations were unjust. The denial was based on the applicant's pattern of misconduct, which raised concerns about her reliability and trustworthiness.

The appeal board affirmed the denial, underscoring that national security considerations are paramount in security clearance determinations. The decision highlighted the applicant's failure to mitigate the disqualifying conditions related to personal conduct.

Conditions Referenced

Disqualifying

AG E2raisedPersonal Conduct

Key Rule Quoted

“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)

Procedural Posture

SOR issuedMay 12, 2016
Answer filed—
Hearing heldFeb 22, 2017
Decision dateMay 8, 2017

Cite For

Affirmation of Adverse Decisions Based on Questionable Judgment Under Guideline E
Importance of National Security in Clearance Decisions
Insufficient Rebuttal of Evidence Considered by the Judge

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 her request for a security clearance based on concerns under Guideline E. The applicant argued that the Judge did not consider all evidence, but the Board affirmed the decision, finding no harmful error in the Judge's analysis.

Appealed bythe applicant

Applicant representationAttorney

Judge belowDarlene D. Lokey Anderson — denied the clearance

Decided ona hearing

Guidelines belowGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argues that the Judge did not consider all of the evidence.

Why the Board ruled this way

The Board found that the Judge considered all evidence and did not weigh it in an arbitrary or capricious manner. The decision was sustainable based on the record and aligned with national security interests.

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 Ra’anan — Chair
James E. Moody
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 E DIGEST: Applicant argues that the Judge did not consider all of the evidence. Applicant’s arguments are not enough to rebut the presumption that the Judge considered all of the evidence in the record. Neither are they enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Adverse decision affirmed. CASENO: 12-09886.a1 DATE: 05/08/2017 DATE: May 8, 2017 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-09886

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Ryan C. Nerney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On May 12, 2016, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On February 22, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Darlene D. Lokey Anderson denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant has a history of using questionable judgment on the job, although Applicant attributes that history to the stress of working in a male-dominated field. She contended that she was harassed and bullied while at work. The SOR alleges several instances of misconduct or job termination. In 2009, Applicant received a written warning due to a confrontation with another worker. The next year her employer fired her for making slanderous remarks about a co-worker’s anatomy. Applicant attempted to complain to the EEOC, but it did not take the case. In early 2014, Applicant was terminated from another job for violating company regulations and, a couple of months later, was disciplined by a follow-on employer due to a confrontation at work. The following year Applicant was fired from a job with yet another employer, though she claimed she was never told why. Applicant’s character evidence states that she has excellent job skills and that she is honest, dependable, and a good leader. She is recommended for a clearance. The Judge’s Analysis The Judge noted Applicant’s evidence that she is often the only female in the workplace, which can present a difficult situation. However, the Judge concluded that Applicant’s problems were of her own making, given the number of warnings and terminations that she has experienced. Indeed, Applicant acknowledged during her clearance interview that she can become emotional while at work, though she denied that she let her emotions get out of hand. The Judge stated that Applicant provided no evidence to show that the job terminations and other adverse actions were unjust. She stated that it is highly unlikely that a person would be fired from three different jobs by three different employers without having done anything wrong. The Judge concluded that Applicant’s case impugned her judgment, trustworthiness, and reliability.

DISCUSSION

Applicant argues that the Judge did not consider all of the evidence, such as her character references, etc. She cites to the Judge’s acknowledgment that being the only female in a male- dominated workplace can cause difficulties. Applicant’s arguments are not enough to rebut the presumption that the Judge considered all of the evidence in the record. Neither are they enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 13-00502 at 3 (App. Bd. Mar. 7, 2017). Applicant cites to a Hearing Office case that she believes supports her effort to gain a clearance. We give this case due consideration as persuasive authority. However, each case must be decided on its own merits. Moreover, Hearing Office cases are binding neither on other Hearing Office Judges nor on the Appeal Board. See, e.g., ISCR Case No. 15-01416 at 3 (App. Bd. Nov. Feb. 15, 2017). The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on this record. “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). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”

ORDER

The Decision is AFFIRMED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board