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ISCR Case 15-06050.a1 — CASE

ISCR Case 15-06050.a1denied

Case Headnote

ISCR Case No. 15-06050.a1

Oct 30, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A defense contractor, employed since 2014, was denied a security clearance due to multiple security violations under Guideline K (Handling Protected Information). The applicant's infractions included failing to secure sensitive information and leaving classified labels unsecured. These actions raised significant concerns regarding her judgment and reliability.

The denial was based on Guideline E (Personal Conduct), Guideline K (Handling Protected Information), and Guideline M (Use of Information Technology). The judge determined that the applicant did not meet the burden of persuasion for mitigation, citing the serious nature of the violations.

Ultimately, the appeal board affirmed the denial, emphasizing the gravity of the security breaches and the applicant's inability to demonstrate sufficient mitigation.

Conditions Referenced

Disqualifying

AG KraisedHandling Protected Information

Key Rule Quoted

“Once it is established that an applicant has committed security violations, he or she has a “very heavy burden” of persuasion as to mitigation.”
— ISCR Case No. 15-04340 at 3 (App. Bd. Jan. 30, 2017)

Procedural Posture

SOR issuedJun 3, 2016
Answer filed—
Hearing heldAug 9, 2017
Decision dateOct 30, 2017

Cite For

Affirmation of Security Clearance Denial Based on Multiple Security Violations
Heavy Burden of Persuasion for Mitigation in Security Violation Cases
Serious Implications of Security Violations for 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 who was denied a security clearance due to multiple security violations. The applicant argued that the Judge's decision was arbitrary and that the Judge failed to adequately analyze her case for mitigation. The Board affirmed the Judge's decision, finding no harmful error in the analysis or conclusions reached.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRichard A. Cefola — denied the clearance

Decided ona hearing

Guidelines belowGuideline KGuideline MGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse decision was arbitrary, capricious, or contrary to law.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge did not adequately analyze her case for mitigation.

Why the Board ruled this way

The Board found that the Judge's conclusions regarding the applicant's security violations were supported by substantial evidence and that the Judge did not act arbitrarily or capriciously in denying the security clearance.

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
James F. Duffy

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 K; Guideline M; Guideline E DIGEST: Once it is established that an applicant has committed security violations, he or she has a “very heavy burden” of persuasion as to mitigation. Such violations “strike at the heart of the industrial security program.” Adverse decision affirmed. CASENO: 15-06050.a1 DATE: 10/30/2017 DATE: October 30, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-06050

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Skyler D. Samp, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On June 3, 2016, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline K (Handling Protected Information), Guideline M (Use of Information Technology), and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On August 9, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Richard A. Cefola denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge erred in concluding that Applicant’s circumstances raised security concerns and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guidelines M and E are not at issue in this appeal. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant has been employed by a Defense contractor since 2014 and has held a clearance since 1996. Her SOR alleges four security infractions. In 2011, she failed to secure a COMSEC safe, for which she was admonished. In 2012 she failed to secure a COMSEC vault door, though no action was taken. Later that same year she had two incidents in which encryptors were keyed to the wrong classification, resulting in her receiving a written reprimand. In 2013, Applicant left three unsecure SECRET/SAR labels in her unlocked overhead bin for about six weeks in a non- classified work area. Security officials could not rule out a compromise, and Applicant received a written disciplinary form and a ten-day suspension without pay. The Judge’s Analysis The Judge concluded that Applicant’s infractions raised security concerns. He further concluded that none of the Guideline K mitigating conditions were applicable, citing to evidence that the most recent incident occurred three years previous and that the classified labels may have been compromised. In the whole-person analysis, the Judge noted Applicant’s work history and the respect she enjoys from her colleagues. However, he stated that he was left with “questions and doubts” about Applicant’s eligibility for a clearance.

DISCUSSION

Applicant notes language in the Directive that the various disqualifying conditions listed under Guideline K “could” raise concerns and be disqualifying. Appeal Brief at 7; Directive, Encl. 2, App. A ¶ 34. She argues that the Judge provided no analysis on this matter, which suggests that he misinterpreted the Directive to mandate the denial of a clearance in her case. In fact, the analysis portion of the decision correctly states that the disqualifying conditions listed in the Directive could, rather than must, raise concerns. Although the Judge’s analysis is admittedly conclusory, we find no support for Applicant’s contention that the Judge found the disqualifying conditions to be applicable as a matter of law or that he otherwise believed that he had no discretion regarding their application. The Directive presumes a nexus between admitted or proved circumstances under any of the Guidelines and an applicant’s eligibility for a clearance. See, e.g., ISCR Case No. 15-02903 at 2 (App. Bd. Mar. 9, 2017). Given that Applicant admitted the Guideline K allegations with explanations and that the record contains substantial evidence of the allegations as well, we find no reason to disturb the Judge’s conclusion that Applicant’s numerous security infractions raise concerns about her judgment and reliability.1

FOOTNOTES

1 To the extent that Applicant’s argument implies a contention that the Judge entered the hearing with an inflexible predisposition to issue an adverse decision, we find no support for this in the record. Applicant has not rebutted the presumption that the Judge was impartial. See, e.g., ISCR Case No. 12-10122 at 3 (App. Bd. Apr. 22, 2016). Applicant contends that the Judge provided no analysis regarding her case for mitigation. She also contends that the Judge appears not to have performed a whole-person analysis. As with his treatment of the disqualifying conditions, the Judge’s mitigation analysis is concise. However, the Directive requires a Judge to set forth findings, policies, and conclusions as to the allegations in the SOR but does not prescribe a quantum of analysis. Directive ¶ E3.1.25. Each case must be decided on its own merits, and we conclude that in this case the Judge has satisfied the requirements of the Directive. Applicant cites to favorable evidence, such as her character references, performance reviews, professional accolades, etc. She argues that this evidence should have played a large part in the Judge’s analysis but that he does not mention it. A Judge is not expected to make findings about every piece of evidence in the record, which would be a practical impossibility. See, e.g., ISCR Case No. 14-05396 at 4 (App. Bd. Jan. 10, 2017). In this case, the Judge’s findings capture the essential facts underlying the SOR allegations, and he made reference to her good work record in the analysis. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. Neither has she shown that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 15-08711 at 3 (App. Bd. Aug. 24, 2017). The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision, both as to the mitigating conditions and the whole-person factors. The decision is sustainable on this record. Once it is established that an applicant has committed security violations, he or she has a “very heavy burden” of persuasion as to mitigation. Such violations “strike at the heart of the industrial security program.” ISCR Case No. 15-04340 at 3 (App. Bd. Jan. 30, 2017). “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, Encl. 2, App. A ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility 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: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board