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ISCR Case No. 01-07360

Appeal Board

Decided Apr 10, 2002 · Administrative Judge Michael Y. Ra'anan · Appeal

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The appeal involved a denial of a security clearance based on allegations of personal conduct, including falsification of material facts. The applicant argued that he was denied a prompt adjudication and that the Administrative Judge was biased. The Board affirmed the Administrative Judge's decision, finding no harmful errors in the proceedings.

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Appearances

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DATE: April 10, 2002

Procedural History

TYLE="text-align: CENTER">APPEARANCES

FOR GOVERNMENT

Peregrine D. Russell-Hunter, Esq., Chief Department Counsel

FOR APPLICANT

Pro Se

Administrativ

Discussion

Judge Elizabeth M. Matchinski issued a decision, dated December 10, 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 Applicant was denied a prompt adjudication of his case; (2) whether the

Administrative Judge was biased; and (3) whether the Administrative Judge made various factual or legal errors.

<CENTER>Procedural History</ CENTER>

The Defense Office of Hearings and Appeals issued to Applicant a Statement of Reasons (SOR) dated April 16, 2001. The SOR was based on

Guideline E (Personal Conduct). A hearing was held on September 28, 2001. The Administrative Judge issued a written decision, dated

December 10, 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 Judge's adverse decision.

<CENTER>Scope of Review</

Appeal Issues

TRONG></CENTER>

On appeal, the Board does not review a case de novo. Rather, the Board addresses the material issues raised by the parties to determine whether

there is factual or legal error. There is no presumption of error below, and the appealing party must raise claims of error with specificity and

identify how the Administrative Judge committed factual or legal error. See Directive, Additional Procedural Guidance, Item E3.1.32. See, e.g.,

ISCR Case No. 00-0050 (July 23, 2001) at pp. 2-3 (discussing reasons why party must raise claims of error with specificity).

When an Administrative Judge's factual findings are challenged, the Board must determine whether "[t]he Administrative Judge's findings of fact

are supported by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary

evidence. In making this review, the Appeal Board shall give deference to the credibility determinations of the Administrative Judge." Directive,

Additional Procedural Guidance, Item E3.1.32.1. The Board must consider not only whether there is record evidence supporting a Judge's

findings, but also whether there is evidence that fairly detracts from the weight of the evidence supporting those findings. See, e.g., ISCR Case

No. 99-0205 (October 19, 2000) at p. 2.

When a challenge to an Administrative Judge's rulings or conclusions raises a question of law, the Board's scope of review is plenary. See DISCR

Case No. 87-2107 (September 29, 1992) at pp. 4-5 (citing federal cases).

<CENTER>Appeal Issues</CENTER>

1. Whether Applicant was denied a prompt adjudication of his case. Applicant refers to the saying "Justice delayed is justice denied" and argues:

(a) the SOR was not issued until 14 months after he was interviewed by a Special Agent of the Defense Security Service (DSS); (b) Department

Counsel did not contact Applicant until 18 months after Applicant was interviewed by the DSS Special Agent; (c) it took Department Counsel 18

months after Applicant was interviewed by the DSS Special Agent to realize he was not in Florida; (d) because of the passage of time, Applicant

was unable to get a copy of the DSS Special Agent's notes of his interviews of Applicant; (e) because of the passage of time, the DSS Special

Agent's testimony at the hearing "was not very helpful to either party"; and (f) Applicant could not be expected be able to remember how many

drinks he had on the night of November 1, 1990 when asked about it by Department Counsel at the hearing. The Board construes Applicant's

arguments as raising the issue of whether he was denied a prompt adjudication of his case.

The expeditious adjudication of security clearance cases is desirable for both the government and applicants. However, neither Executive Order

10865 nor the Directive provides for statutes of limitation or analogous deadlines for how soon an SOR must be issued after an applicant has been

interviewed by an investigator. Absent such an express provision of law, the federal government is not precluded from adjudicating an applicant's

security clearance case.<A HREF="#N_1_"> (1)</A>

The Board does not have supervisory authority or jurisdiction over the actions of Department Counsel. And, in any event, Applicant fails to

articulate how he was prejudiced in any specific, identifiable manner by the passage of approximately four months from the issuance of the SOR to

the time Department Counsel contacted Applicant. Absent any such showing, Applicant's dissatisfaction with the performance of Department

Counsel provides no basis for the Board to conclude Applicant was harmed in any legally cognizable manner.

In any industrial security clearance case, there will be some amount of time that passes between the day an applicant is interviewed by a DSS

Special Agent, the day an SOR is issued, and the day when a hearing is conducted. Such a passage of time is inevitable and unavoidable. With

the passage of time, it is possible that memories may fade and the ability of witnesses to recall past events may be affected. Yet, such a possibility

is unavoidable in any practical system of adjudication. An Administrative Judge is presumed, based on his or her legal training and experience, to

be able to appreciate and evaluate the possible effect the passage of time might have on the ability of a witness to provide complete and accurate

testimony about past events.

None of Applicant's arguments about the time it took for his case to be adjudicated demonstrate error by the Administrative Judge or persuade the

Board that Applicant is entitled to remand or reversal of the decision below.

2. Whether the Administrative Judge was biased. Applicant asserts the Administrative Judge was biased. In support of that assertion, Applicant

argues: (a) the Judge found no mitigating factors on Applicant's behalf even though Applicant has not had any security violations in 30 years; (b) the

Judge failed to give due weight to evidence that Applicant received achievement awards in August 2000 and July 2001; (c) the Judge improperly

referred to conduct by Applicant that was not alleged in the SOR; and (d) the Judge improperly concluded that Applicant is at risk for having a

future incident of drunk driving.

There is a rebuttable presumption that an Administrative Judge is impartial and unbiased, and the appealing party has a heavy burden when seeking

to overcome or rebut that presumption.<A HREF="#N_2_"> (2)</A> The issue is not whether the appealing party personally believes that the Judge was biased. Rather, the

issue is whether the record of the proceedings below contains any indication that the Judge acted in a manner that would lead a reasonable person

to question the fairness or impartiality of the Judge.<A HREF="#N_3_"> (3)</A>

Bias is not demonstrated by either (a) the fact that the Administrative Judge ruled against an appealing party, or (b) legally erroneous rulings by the

Judge.<A HREF="#N_4_"> (4)</A> As will be discussed later in this decision, Applicant's specific arguments lack merit. However, even if Applicant's arguments had any

legal merit, none of them would support a finding of bias by the Judge.

3. Whether the Administrative Judge made various factual or legal errors. Applicant also argues: (a) the Judge made erroneous findings about the

circumstances under which Applicant was terminated from employment in 1998; (b) the Judge erred by finding Applicant falsified material facts

about his termination from employment in 1998 in a written statement he gave in January 2000; (c) the Judge erred by considering a matter that

was not alleged in the SOR; (d) the Judge made various errors in connection with considering Applicant's past alcohol abuse; (e) the Judge erred

by failing to take into account certain mitigating evidence.

(a) There is sufficient record evidence to sustain the Administrative Judge's findings about the circumstances under which Applicant was terminated

from employment in 1998. The Board is not persuaded by Applicant's argument that the Judge gave undue weight to Government Exhibit 7.

Furthermore, Applicant's ability to argue for an alternate interpretation of the record evidence is not sufficient to persuade the Board that the

Judge's findings about Applicant's termination from employment in 1998 are arbitrary, capricious, or otherwise unsustainable.

(b) The evidence cited by Applicant on appeal in support of this appeal argument is not sufficient to demonstrate the Administrative Judge's finding

of falsification is erroneous. When faced with conflicting record evidence, a Judge must weigh the evidence as a whole and make findings of fact

that reflect a reasonable interpretation of the record evidence. Applicant's denials of any intent to falsify are relevant evidence, but they are not

conclusive or binding on the Judge. Rather, the Judge had to consider and weigh Applicant's denials in light of the record evidence as a whole and

make a finding as to whether Applicant falsified material facts when he gave a written statement to a DSS Special Agent.<A HREF="#N_5_"> (5)</A> Considering the record

as a whole, there is sufficient evidence to sustain the Administrative Judge's finding that Applicant falsified material facts in a written statement he

gave in January 2000.

(c) In concluding that Applicant has not been frank and candid with the government about his past conduct and circumstances, the Administrative

Judge referred to a matter not alleged in the SOR (Decision at p. 9). Applicant cites the specific passage in the Judge's decision and argues the

Administrative Judge erred by referring to a matter not alleged in the SOR. Although an SOR must place an applicant on reasonable notice of the

reasons why the government proposed to deny or revoke access to classified information, an SOR need not allege every piece of evidence that is

relevant and material to evaluating an applicant's security eligibility.<A HREF="#N_6_"> (6)</A> Furthermore, conduct not alleged in an SOR may be considered: (i) to assess

an applicant's credibility; (ii) to evaluate an applicant's evidence of extenuation, mitigation, or changed circumstances; or (iii) to consider whether

an applicant has demonstrated successful rehabilitation.<A HREF="#N_7_"> (7)</A> In this case, SOR paragraph 1.a. alleged Applicant was terminated from employment in

1998 for mischarging time and attendance, and SOR paragraph 1.b alleged Applicant had falsified material facts in connection with a written

statement he gave to a DSS Special Agent in January 2000. The matter not alleged in the SOR that the Judge referred to (which Applicant

complains about) is relevant to an assessment of Applicant's

candor, honesty, and credibility. Accordingly, it was not arbitrary, capricious, or contrary to law for the Judge to consider that matter in

connection with her assessment of Applicant's candor and credibility, or in connection with her conclusion that the matter was evidence showing

Applicant has engaged in a pattern of dishonest conduct.

(d) In reference to the Administrative Judge's findings about Applicant's past alcohol abuse, Applicant argues: (i) the Judge improperly "relitigated"

two alcohol-related cases heard by state authorities in the 1991 and 1995; (ii) Applicant's past alcohol abuse should have been alleged under

Guideline G, not Guideline E; (iii) the Judge should have applied two Alcohol Consumption Mitigating Conditions to Applicant's past alcohol

abuse; and (iv) because Guideline G was not alleged in the SOR, the Judge erred by concluding that a future incident of drunk driving could not be

ruled out.

(d)(i) The Administrative Judge acted properly by making findings of fact about two incidents that were handled by state authorities in 1991 and

1995. Although neither incident resulted in a conviction for driving under the influence, there is sufficient record evidence to support the Judge's

finding that both incidents involved alcohol abuse.

(d)(ii) Although the SOR issued to Applicant contains two allegations of alcohol-related incidents, Guideline G (Alcohol Consumption) was not

alleged. There is no indication in the record evidence as to why those two incidents were not alleged under Guideline G. The Board will not

speculate as to the mental processes of the DOHA personnel involved in drafting the SOR issued to Applicant.

Was the SOR deficient or defective because it did not allege the two alcohol-related incidents under Guideline G? An SOR is a civil,

administrative pleading that does not have to satisfy the stringent requirements of a criminal indictment.<A HREF="#N_8_"> (8)</A> Furthermore, factual allegations may be

cited under more than one Guideline, as long as there is a rational basis for doing so.<A HREF="#N_9_"> (9)</A> An alcohol-related incident can

Conclusion

emonstrate poor judgment

or unreliability within the meaning of Guideline E. Furthermore, the Directive specifically notes that adverse information that might not be sufficient

to warrant an adverse decision under a particular Guideline may be sufficient to support an adverse security clearance decision if it "reflects a