A decided public DOHA case, shown for research, not advice or a prediction.

ISCR Case No. 00-0030

Appeal Board

Decided Sep 20, 2001 · Administrative Judge Michael Y. Ra'anan · Appeal

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The appeal involved a security clearance denial based on security violations and personal conduct. The applicant argued that the government's actions were an abuse of discretion and that the Judge's findings were erroneous. The Board affirmed the Judge's decision, finding no harmful errors in the proceedings.

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Appearances

ion made against an applicant. An allegation in the Statement of Reasons may be included under more than one Guideline. The Judge's analysis and conclusions about Applicant's security violations are reasonable and sustainable. Adverse decision affirmed.

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Procedural History

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DATE: September 20, 2001

<HR>

In Re:

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SSN: -----------

Applicant for Security Clearance

<HR>

ISCR Case No. 00-0030

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT

Erin C. Hogan, Esq., Department Counsel

FOR APPLICANT<

Appeal Issues

SPAN>

Alfred F. Arquilla, Esq,

Administrative Judge Elizabeth M. Matchinski issued a decision, dated May 7, 2001, in which she concluded it is not clearly consistent with the national interest to grant or

continue a security clearance for Applicant. Applicant appealed. For the reasons set forth below, the Board affirms the Administrative Judge's decision.

This Board has jurisdiction on appeal under Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, as amended.

Applicant's appeal presents the following issues: (1) whether the government abused its discretion by proceeding against him; (2) whether the Administrative Judge erred

by making a finding that classified U.S. information was presented by a foreign national at a January 1998 meeting; and (3) whether the Administrative Judge's adverse

security clearance decision is arbitrary, capricious, or contrary to law.

<CENTER>Procedural History</ CENTER>

The Defense Office of Hearings and Appeals issued to Applicant a Statement of Reasons (SOR) dated September 28, 2000. The SOR was based on Guideline K

(Security Violations), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct).

A hearing was held on March 23, 2001. The Administrative Judge issued a written decision, dated May 7, 2001, in which she concluded it is not clearly consistent with

the national interest to grant or continue a security clearance for Applicant.

The case is before the Board on Applicant's appeal from the Administrative Judge's adverse security clearance decision.

<CENTER>Appeal Issues</CENTER>

The Administrative Judge made the following salient findings concerning Applicant's actions and inactions in connection with a five-day meeting in January 1998 (which

involved classified information):

Applicant failed to ensure that all persons attending the meeting were appropriately cleared, and allowed some unexpected persons to attend without ensuring beforehand

that those persons had the requisite clearance and need-to-know;

Applicant failed to report the unauthorized introduction of unmarked, improperly packaged classified material into the facility by foreign country nationals;

Applicant allowed attendees of the meeting to have access to foreign Confidential and Restricted Data information over the first three days of the meeting without ensuring

that the foreign classified information was properly receipted for; and

Applicant's actions and inactions constituted violations of NISPOM Paragraphs 6-103, 6-105, 6-106, 6-201, 10-315, and 10-316.

With one exception,<A HREF="#N_1_"> (1)</A> Applicant has not challenged the Judge's findings about the security violations in January 1998. Applicant's appeal arguments must be considered

in light of the Judge's findings about Applicant's security violations.<A HREF="#N_2_"> (2)</ A>

1. Whether the government abused its discretion by proceeding against him. Applicant argues: (a) the Government's tardy prosecution of this case against him "represents

an abuse of prosecutorial discretion, and that the decision to revoke his security clearance at this late date, with all due respect to the judge in this case, represents a

travesty of justice"; (b) he was the wrong person to be given sole responsibility to host a January 1998 meeting, and he should not be held accountable for the security

violations that occurred in connection with that meeting; and (c) he is being targeted as the "fall guy" in this case, and the Administrative Judge's findings for Applicant with

respect to SOR paragraphs 2.b and 3.a show those allegations were pretexts. These arguments raise the issue of whether the government abused its discretion by

proceeding against Applicant.

(a) Tardy prosecution. Applicant argues it is unfair that the government is proposing to deny or revoke his access to classified information based on events which

occurred in January 1998. Applicant's argument lacks legal support.

First, it is well settled that, in the absence of an express statute to the contrary, the federal government is not bound by time limitations in carrying out its governmental

functions.<A HREF="#N_3_"> (3)</A> Security clearance adjudications involve the exercise of Executive Branch authority under the Constitution.<A HREF="#N_4_"> (4)</A>

Accordingly, security clearance adjudications are not bound by any time limitations unless such limitations are expressly imposed by act of Congress or Presidential

directive. Applicant does not cite, and the Board is not aware of, any act of Congress or Presidential directive (e.g., provision of Executive Order 10865 or any other

Executive Order) that expressly imposes any time limitations on security clearance adjudications.

Second, the federal government is not barred from acting based on the doctrine of laches.<A HREF="#N_5_"> (5)</A> The United States has a compelling interest in protecting classified

information.<A HREF="#N_6_"> (6)</A> That compelling national security interest cannot be deemed lost or forfeited by application of a legal doctrine aimed at encouraging private parties to act

diligently to protect their rights.<A HREF="#N_7_"> (7)</A> Accordingly, the Board has declined to recognize the defense of laches in security clearance cases.<A HREF="#N_8_"> (8)</A> Applicant's brief does not cite any

legal authority for his tardiness argument that would justify changing the Board's position on this point.

Third, absent a showing of prejudice to an applicant's rights, the mere passage of time in the handling of a case does not constitute error that warrants remand or

reversal.<A HREF="#N_9_"> (9)</A> Applicant fails to articulate any plausible argument about how his rights were prejudiced by the passage of time between his security violations in January 1998

and the issuance of the SOR in September 28, 2000. Absent any showing of prejudice, Applicant has no legal basis to seek relief from the adverse security clearance

decision in his case.

(b) Responsibility of others. Applicant also contends he was the wrong person to be given sole responsibility to host the January 1998 meeting, and he should not be held

accountable for the security violations that occurred in connection with that meeting. In support of this contention, Applicant's counsel invokes his personal experience as

a retired military officer and military lawyer to argue that persons senior or superior to Applicant should not escape responsibility for Applicant's security violations

because they failed to either provide proper supervision of Applicant or ensure proper security procedures were in place. This contention is not persuasive.

First, Applicant is not in the military and this case is not being adjudicated under the Uniform Code of Military Justice or any regulations, practices, or customs pertaining

to active duty military personnel. There is no legal basis for the Administrative Judge or this Board to evaluate Applicant's case under military law or regulations,

practices, or customs pertaining to active duty military personnel.

Second, even if the Board assumes solely for purposes of deciding this appeal that persons senior or superior to Applicant failed, through their actions or inactions, to fulfill

their security responsibilities, such a failure would not relieve Applicant of responsibility for his own actions and inactions with respect to his security duties.<A HREF="#N_10_"> (10)</A> Neither the

Judge below nor this Board is required to allow Applicant to escape responsibility for his own conduct even if other persons have not been called to account for their

actions or inactions with respect to their security responsibilities.<A HREF="#N_11_"> (11)</ A>

Applicant's contention fails to demonstrate the Administrative Judge's decision is arbitrary, capricious, or contrary to law.

(c) Applicant as "fall guy". Applicant contents he is being targeted as the "fall guy" in this case, and the Administrative Judge's findings for Applicant with respect to SOR

paragraphs 2.b and 3.a show those allegations were pretexts.

There is a rebuttable presumption that agency officials act in good faith, and a person seeking to rebut it has a heavy burden.<A HREF="#N_12_"> (12)</A> Applicant's belief that he is being

"targeted as the 'fall guy' in this case," however sincerely held, falls far short of rebutting that presumption. As discussed earlier in this decision, the actions and inactions

of other persons would not relieve Applicant of responsibility for his own actions and inactions with respect to his security duties. Furthermore, the Judge's unchallenged

findings about Applicant's security violations clearly show that Applicant is not an innocent person who has been "set up" to "take the fall" for security violations which he

did not commit.

The presumption also is not rebutted by the Administrative Judge's findings in favor of Applicant with respect to SOR paragraphs 2.b and 3.a. Merely because a Judge

finds in favor of a party, it does not follow that the other party is guilty of bad faith. The government may have a good faith basis to make allegations against an applicant,

yet fail to meet its burden of proof to the satisfaction of a Judge. Acceptance of Applicant's argument would lead to the untenable result that any party that fails to meet its

burden of proof would be deemed ipso facto guilty of bad faith. Furthermore, Applicant's pretext argument collapses in the face of the Judge's unchallenged findings

about Applicant's security violations.

2. Whether the Administrative Judge erred by making a finding that classified U.S. information was presented by a foreign national at a January 1998 meeting. On appeal,

Applicant indicates he "generally agrees with the findings of fact in the decision of the Judge, but posits the following additional evidence from the case record and the

transcript of hearing for consideration by the review board in support of Appellant's (sic) argument herein . . . ."

The Board does not review an applicant's case de novo. Rather, the Board is limited to reviewing a Judge's decision under the terms of Directive, Additional Procedural

Guidance, Item E3.1.32.<A HREF="#N_13_"> (13)</A> There is no presumption of error below and the appealing party has the burden of raising and demonstrating error.<A HREF="#N_14_"> (14)</A> Furthermore, the

appealing party must raise its claims of error with specificity.<A HREF="#N_15_"> (15)</A> Accordingly, absent a specific claim of error, the Board need not review an Administrative Judge's

findings of fact to decide whether they are supported by substantial record evidence. The only finding of fact that Applicant specifically challenges is the Judge's finding

that classified U.S. information was presented by a foreign national at a January 1998 meeting. Accordingly, the Board need not consider whether there is substantial

record evidence supporting the Judge's other findings of fact.

Applicant contends the Administrative Judge erred by finding classified U.S. information was presented by a foreign national at a January 1998 meeting because: (a) the

SOR did not allege or refer to any such disclosure of classified U.S. information; and (b) there is nothing in the record evidence that indicates the information disclosed by

the foreign national was officially determined to be classified U.S. information.

Applicant's first argument fails to demonstrate the Administrative Judge erred. It is untenable for Applicant to suggest that a Judge cannot make findings of fact that go

beyond the strict and literal language of the SOR allegations. An SOR is an administrative pleading that is aimed at placing an applicant of reasonable notice of the

allegations against him or her.<A HREF="#N_16_"> (16)</A> An SOR need not enumerate every single fact or piece of evidence that may be relevant to the allegations made against an applicant.<A HREF="#N_17_"> (17)</A>

It is not arbitrary or capricious for a Judge to consider record evidence to make findings of fact about the circumstances surrounding events that are the focus of SOR

allegations.<A HREF="#N_18_"> (18)</A> Here, the facts and circumstances surrounding the security violations that occurred during the five-day meeting in January 1998 were relevant to the SOR

allegations. Evidence about circumstances surrounding those security violations is proper for consideration by the Judge and may form the basis of factual findings.

Accordingly, evidence that classified U.S. information was involved (directly or indirectly) in any of the alleged security violations would be relevant and could be

considered by the Judge in deciding Applicant's case.

At the hearing, Applicant did not object to the admissibility of evidence referring to classified U.S. information being part of a presentation that a foreign national made at

the January 1998 meeting. Furthermore, during the proceedings below, Applicant did not challenge the classification status of that information. Under the circumstances,

Applicant waived any objection to the Administrative Judge considering evidence referring to classified U.S. information being part of a presentation made by a foreign

national at the January 1998 meeting, or making a finding based on that evidence.

3. Whether the Administrative Judge's adverse security clearance decision is arbitrary, capricious, or contrary to law. Applicant makes several arguments in support of

his contention that the Administrative Judge's decision is arbitrary, capricious, or contrary to law: (a) Applicant's security violations were extenuated or mitigated; (b) the

Administrative Judge's adverse findings against Applicant under Guideline E are unjustified; (c) the Administrative Judge erred by concluding Applicant's evidence of

reform is not sufficient to overcome doubts raised by January 1998 security violations; and (d) the Judge's decision pays only lip service to the "whole person" concept

and is not "an overall common sense determination" as described in the Directive. For the reasons that follow, the Board concludes Applicant's arguments are not

persuasive.

(a) Extenuation or mitigation. Applicant contends the Administrative Judge should have concluded his security violations were extenuated or mitigated because: (i) lack of

proper security training of Applicant by his employer, not Applicant's alleged poor judgment, was the real cause of the security violations; (ii) Applicant's security

violations were negligent and inadvertent, not deliberate; (iii) other personnel failed to take appropriate actions with respect to the security violations, and other people did

not give Applicant the assistance they should have in connection with the January 1998 meeting; (iv) the security violations were isolated and infrequent when viewed in

light of Applicant's entire record; and (v) the evidence presented at hearing shows that Applicant has handled classified information since January 1998 without any

problems, and that he is an honest, trustworthy and reliable employee.

The Administrative Judge considered Applicant's claims that his employer failed to provide him with proper security training, and that other persons failed to take

appropriate steps with respect to the security violations associated with the January 1998 meeting. The Judge did not find those claims to be persuasive. In the decision

below the Judge articulated her reasons for concluding Applicant was responsible for various security violations. Applicant's strong disagreement with the Judge's

analysis on this aspect of the case does not demonstrate the Judge's analysis is arbitrary, capricious, or contrary to law. The Judge's reasoning and conclusions about

Applicant's conduct reflect a rational analysis of the record evidence and a reasonable application of pertinent provisions of the Directive.

The Administrative Judge concluded that some of Applicant's security violations were deliberate in nature and others were the result of negligence. The Judge's

conclusions reflect a reasonable interpretation of the record evidence. Applicant's appeal arguments fail to persuade us that the Judge should have concluded all of

Applicant's security violations were the result of inadvertence or negligence on his part. To the extent the Judge concluded Applicant's security violations were due to

negligence, Applicant's argument about negligence fails to show the Judge should have concluded those violations were extenuated or mitigated. Security violations are a

serious matter, whether they are the result of deliberate or negligent conduct.<A HREF="#N_19_"> (19)</A> The United States has a compelling interest in protecting classified information from

disclosure to unauthorized persons, regardless of whether such disclosure is the result or deliberate or negligent conduct.

It is reasonable for Applicant to ask that his security violations in January 1998 be considered in light of his entire record, including his handling of classified information

since then. However, the Administrative Judge's analysis of the facts and circumstances of Applicant's case is consistent with the Directive's requirement that an

applicant's security eligibility be considered in light of all the facts and circumstances of the applicant's case. A review of the decision below shows the Judge specifically

considered the following: Applicant's lack of experience with classified information prior to 1997; Applicant's security training after he received a security clearance; the

facts and circumstances of Applicant's actions and inactions associated with the January 1998 security violations; Applicant's cooperation with personnel investigating the

January 1998 security violations; Applicant's lack of culpability with respect to a security violation that occurred in October 1998; Applicant's explanation about his

statements to an investigator during a February 1999 interview; Applicant's reputation as a reliable and trustworthy employee; Applicant's handling of classified

information since the January 1998 security violations; and Applicant's written and testimonial statements about how he perceives his security responsibilities. Although

Applicant clearly disagrees with the Judge's adverse conclusions, that disagreement fails to demonstrate the Judge did not evaluate Applicant's security eligibility in light of

his entire record.

(b) Guideline E. Applicant contends the Administrative Judge's under Guideline E are unjustified because: (i) they are based on Applicant's security violations (which fall

under Guideline K); and (ii) it does violence to English language to call isolated and unintentional security violations during a five-day meeting in January 1998 a "pattern of

rule violations." Applicant's contention lacks merit.

An SOR allegation may rationally be included under more than one Guideline.<A HREF="#N_20_"> (20)</A> If there is a rational basis for an SOR allegation to be included under more than one

Guideline, it is legally permissible for an Administrative Judge to consider an applicant's conduct under different Guidelines.<A HREF="#N_21_"> (21)</A> Indeed, a Judge may rationally conclude

that an applicant's security violations demonstrate poor judgment, unreliability or untrustworthiness. Applicant's brief does not articulate any argument as to how or why it

would be arbitrary, capricious, or contrary to law for the Judge to evaluate his security violations under both Guideline K and Guideline E. Under the particular facts and

circumstances of this case, it was not arbitrary or capricious for the Judge to evaluate Applicant's security violations under both Guideline K and Guideline E.

The Administrative Judge found Applicant committed several security violations in connection with the five-day meeting in January 1998. Given the Judge's findings, the

Judge had a rational basis for concluding Applicant's multiple security violations constituted a "pattern of rule violations," not merely an isolated incident.

(c) Reform. Applicant contends the Administrative Judge erred by concluding Applicant's evidence of reform is not sufficient to overcome doubts raised by January 1998

security violations because: (i) he has handled classified information without incident since the January 1998 security violations; (ii) all the witnesses (including the

government witnesses) depicted him as an honest, truthful person; and (iii) the Judge acted unreasonably and unfairly by "pick[ing] apart some of [his] responses during

the hearing and in his written statements to investigators."

An Administrative Judge has the primary responsibility for considering the evidence as a whole, both favorable and unfavorable, and deciding whether the favorable

evidence outweighs the unf

Conclusion

998), cert. denied, 525 U.S. 1140 (1999);

United States v. Menatos, 925 F.2d 333, 335 (9th Cir. 1991); United States v. Brown, 835 F.2d 17