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

ISCR Case No. 02-09220

Appeal Board

Decided Sep 28, 2004 · Administrative Judge Jean E. Smallin · Appeal

Reading

Workbench

Appeal at a glance

The appeal involved a review of an unfavorable security clearance decision based on claims of criminal conduct, personal conduct, and alcohol consumption. The applicant, representing himself, argued that he was denied a fair hearing and that the Administrative Judge's decision was arbitrary. The Board affirmed the decision, finding no harmful error in the Administrative Judge's conclusions.

Descriptive structured reading of this decided, public Appeal Board decision: what the case says, not a prediction or advice.

Full decision

Open original PDF

The complete official text, footnotes and signatures included, is in the original PDF.

Decision text, by section

Appearances

AN STYLE="text-decoration: underline">APPEARANCES

FOR GOVERNMENT

<SPAN STYLE

NG>APPEAL BOARD DECISION

<P STYLE="text-align: CENT

ngs and Appeals (DOHA) issued to Applicant a Statement of Reasons (SOR) dated September 29, 2003 which stated the reasons why

DOHA proposed to deny or revoke access to classified information for Applicant. The SOR was based on Guideline J (Criminal Conduct), Guideline E (Personal

Conduct), and Guideline G (Alcohol Consumption). Administrative Judge James A. Young issued an unfavorable security clearance decision dated May 27, 2004.

Applicant appealed the Administrative Judge's unfavorable decision. The Board has jurisdiction under Executive Order 10865 and Department of Defense Directive

5220.6 (Directive), dated January 2, 1992, as amended.

The following issues have been raised on appeal: (1) whether Applicant was denied a fair hearing because he had to represent himself; (2) whether Applicant was denied

a fair hearing because the Administrative Judge and Department Counsel arrived at the hearing location together and left that location together; (3) whether the

Administrative Judge erred by holding Applicant's past conduct against him instead of focusing on Applicant's present circumstances; and (4) whether the Administrative

Judge's overall security clearance decision was arbitrary, capricious or contrary to law. For the reasons that follow, the Board affirms the Administrative Judge's

decision.

<CENTER>Scope of Review</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. Directive, Additional Procedural Guidance, Item E3.1.32. See also ISCR Case No. 00-0050 (July 23, 2001) at pp. 2-3 (discussing reasons why

party must raise claims of error with specificity).

When the rulings or conclusions of an Administrative Judge are challenged, the Board must consider whether they are: (1) arbitrary or capricious; or (2) contrary to law.

Directive, Additional Procedural Guidance, Item E3.1.32.3. In deciding whether the Judge's rulings or conclusions are arbitrary or capricious, the Board will review the

Judge's decision to determine whether: it does not examine relevant evidence; it fails to articulate a satisfactory explanation for its conclusions, including a rational

connection between the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of judgment; it fails to consider an important aspect

of the case; it offers an explanation for the decision that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere difference of

opinion. See, e.g., ISCR Case No. 97-

Appeal Issues

at p. 3 (citing Supreme Court decision). In deciding whether the Judge's rulings or conclusions are contrary

to law, the Board will consider whether they are contrary to provisions of Executive Order 10865, the Directive, or other applicable federal law. Compliance with state

or local law is not required because security clearance adjudications are conducted by the Department of Defense pursuant to federal law. See U.S. Constitution, Article

VI, clause 2 (Supremacy Clause). See, e.g., ISCR Case No. 00-0423 (June 8, 2001) at p. 3 (citing Supreme Court decisions).

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 the same record. 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, and whether the Judge's findings reflect a reasonable interpretation of the record evidence as a whole. Although a Judge's credibility

determination is not immune from review, the party challenging a Judge's credibility determination has a heavy burden on appeal.

When an appeal issue 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).

If an appealing party demonstrates factual or legal error, then the Board must consider the following questions:

Is the error harmful or harmless? See, e.g., ISCR Case No. 00-0250 (July 11, 2001) at p. 6 (discussing harmless error doctrine);

Has the nonappealing party made a persuasive argument for how the Administrative Judge's decision can be affirmed on alternate grounds? See, e.g., ISCR Case No.

99-0454 (October 17, 2000) at p. 6 (citing federal cases); and

If the Administrative Judge's decision cannot be affirmed, should the case be reversed or remanded? (Directive, Additional Procedural Guidance, Items E3.1.33.2 and

E3.1.33.3).

<CENTER>Appeal Issues<A HREF="#N_1_"> (1)</A></CENTER>

Applicant's brief contains some factual assertions that go beyond the record evidence. Such assertions constitute new evidence which the Board cannot consider.

Directive, Additional Procedural Guidance, Item E3.1.29. The Board will address only those claims of error that do not rely on new evidence.

1. Whether Applicant was denied a fair hearing because he had to represent himself. Applicant argues that he did not prevail with respect to the Guideline E (Personal

Conduct), which involved the falsification of his January 2001 security clearance application, because he had no legal training, and he could not afford to retain an attorney

to represent him. He states that he did not understand most of the "legal jargon" during the hearing below and suggests that he was out-maneuvered by Department

Counsel who "brought up details that happened up to five years ago to confuse and infuse doubt." We construe Applicant's position to be that he was denied a fair

hearing because he had to represent himself.

A review of the record shows that Applicant was aware of his right to retain an attorney. Applicant appeared at the hearing below without an attorney and told the Judge

that he chose to represent himself (Hearing Transcript at p.6). At no time during the hearing did the Applicant indicate that he could not represent himself or needed a

continuance to retain counsel. There is no indication that Applicant was illiterate, mentally incompetent or mentally disabled, or otherwise unable to understand or

appreciate the SOR allegations against him, the documentary evidence presented by the Department Counsel or the hearing procedures. See, e.g., ISCR Case No. 00-0086 (December 13, 2000) at pp. 2-3. Moreover, the record shows that Applicant arranged for the appearance of four witnesses other than himself and obtained

testimony from each that was favorable to him. Applicant's pro se status did not relieve him of the obligation to take timely, reasonable steps to protect his rights under

Executive Order 10865 and the Directive. Having decided to represent himself during the proceedings below, Applicant cannot fairly complain about the quality of his

self-representation or seek to be relieved of the consequences of his decision to represent himself. See, e.g., ISCR Case No. 02-08032 (May 14, 2004) at p. 4. This

claim of error lacks merit.

2. Whether Applicant was denied a fair hearing because the Administrative Judge and Department Counsel arrived at the hearing location together and left that location

together. Applicant states that the Department Counsel and the Judge arrived and departed together. He states that he was under the impression that a "local judge"

would preside at his hearing. He questions "[h]ow can the appeal board and I be sure this case was not being discussed to and from Washington DC?" He further

suggests that there is a "possibility" that the Department Counsel and Judge could have discussed his case "[e]specially seating [sic] next to one another for three plus

hours in close quarters on a plan [sic]."

During the hearing, Applicant did not raise any concern about how the Judge and Department Counsel arrived. Nor does Applicant indicate on appeal what basis he had

for thinking he would have a "local judge" preside over his hearing. There is no record evidence about the facts and circumstances of how the Administrative Judge and

Department Counsel arrived at, and left, the hearing location. However, even if the Board accepts as true, solely for purposes of deciding the appeal, Applicant's appeal

statement that the Administrative Judge and Department Counsel arrived and departed at the same time, it is insufficient to raise a colorable claim of bias or improper

conduct. Even if the Judge and Department Counsel arrived and departed together, one cannot reasonably infer that they discussed Applicant's case.

There is a rebuttable presumption that an Administrative Judge is impartial and unbiased, and a party seeking to rebut that presumption has a heavy burden of persuasion

on appeal. See, e.g., ISCR Case No. 01-20445 (April 29, 2003) at p 3. Furthermore, there is a rebuttable presumption that agency officials carry out their duties in

good faith, and a person seeking to rebut or overcome that presumption has the burden of presenting clear evidence to the contrary. See ISCR Case No. 02-17609

(May 19, 2004) at p. 3 (citing National Archives and Records Administration v. Favish, 541 U.S. --, slip op. at 16 (March 30, 2004)). Applicant's speculation

about the Administrative Judge and the D

Conclusion

he consequences to an applicant's career and the financial well-being of himself or his family are not a relevant consideration in an adjudication of an applicant's

security eligibility. See, e.g., ISCR Case No. 98-0621 (Novembe