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(cert. denied)Tj
/TT0 1 Tf
27.332 0 Td
(, 397 U.S. 1039 \(1970\). )Tj
(All that is)Tj
-32.553 -1.125 Td
(necessary is proof of facts)Tj
/Span<>> BDC
( )Tj
EMC
(and circumstances that indicate an applicant is at risk for mishandling \
classified information,)Tj
T*
(or that an applicant does not)Tj
/Span<>> BDC
( )Tj
EMC
(demonstrate the high degree of judgment, reliability, or trustworthiness\
required of persons)Tj
T*
(handling classified)Tj
/Span<>> BDC
( )Tj
EMC
(information. )Tj
/TT1 1 Tf
12.997 0 Td
(See, e.g.)Tj
/TT0 1 Tf
(, ISCR Case No. 98-0392 \(February 4, 1999\) at p. 2. )Tj
(Accordingly, the absence)Tj
-12.997 -1.125 Td
(of security)Tj
/Span<>> BDC
( )Tj
EMC
(violations by Applicant did not preclude the Judge from making an advers\
e security clearance decision based)Tj
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(\(b\) The Board does not find persuasive Applicant's contention that the\
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(the favorable evidence concerning Applicant's rehabilitation efforts. )Tj
27.447 0 Td
(The Judge is responsible for weighing the record)Tj
-27.447 -1.125 Td
(evidence, subject to review on appeal. )Tj
15.494 0 Td
(Directive, Additional Procedural Guidance, Item 25 \(setting forth Judge\
's)Tj
-15.494 -1.125 Td
(responsibility to make findings of fact\) and Item 32.a. \(setting forth\
Board's authority to review Judge's factual)Tj
0 -1.125 TD
(findings\). )Tj
(Absent a showing that a Judge weighed the evidence in a manner that is a\
rbitrary, capricious, or contrary to)Tj
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(law, the)Tj
/Span<>> BDC
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(Board will not disturb a Judge's weighing of the record evidence. )Tj
/TT1 1 Tf
29.7 0 Td
(See, e.g.)Tj
/TT0 1 Tf
3.332 0 Td
(, ISCR Case No. 98-0123 \(October)Tj
-33.032 -1.125 Td
(28, 1998\) at)Tj
/Span<>> BDC
( )Tj
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(p. 3. )Tj
(The Judge must consider all the record evidence, not just the favorable \
evidence or the unfavorable)Tj
T*
(evidence. )Tj
/TT1 1 Tf
4.053 0 Td
(See)Tj
/TT0 1 Tf
/Span<>> BDC
( )Tj
EMC
(Directive, Section F.3. )Tj
10.914 0 Td
(In addition, the Judge must consider whether the favorable evidence outw\
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-14.967 -1.125 Td
(unfavorable)Tj
/Span<>> BDC
( )Tj
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(evidence or )Tj
/TT1 1 Tf
9.912 0 Td
(vice versa)Tj
/TT0 1 Tf
4.025 0 Td
(. )Tj
/TT1 1 Tf
(See, e.g.)Tj
/TT0 1 Tf
3.832 0 Td
(, ISCR Case No. 98-0392 \(February 4, 1999\) at p. 3. )Tj
(Accordingly,)Tj
-17.769 -1.125 Td
(Applicant's ability to)Tj
/Span<>> BDC
( )Tj
EMC
(canvass the record and cite evidence favorable to his claim of reform an\
d rehabilitation is not)Tj
0 -1.375 TD
(enough to demonstrate the)Tj
/Span<>> BDC
( )Tj
EMC
(Judge erred.)Tj
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(Applicant relies heavily on the testimony of two expert witnesses in sup\
port of his claim of rehabilitation. )Tj
42.546 0 Td
(In responding)Tj
-42.546 -1.125 Td
(to Applicant's appeal brief, Department Counsel points to record evidenc\
e that might provide a basis for the)Tj
0 -1.125 TD
(Administrative Judge to not give full weight to the testimony given by t\
wo expert witnesses on behalf of Applicant.)Tj
T*
(Indeed, the Judge gave some reasons why he gave reduced weight to the te\
stimony of the two expert witnesses. )Tj
44.793 0 Td
(The)Tj
-44.793 -1.125 Td
(Judge is not bound to give full or decisive weight to testimony merely b\
ecause it comes from expert witnesses. )Tj
44.546 0 Td
(The)Tj
-44.546 -1.125 Td
(Judge's responsibility to consider and weigh the record evidence as a wh\
ole is not diminished by the presence of expert)Tj
T*
(opinions. )Tj
/TT1 1 Tf
(See, e.g.)Tj
/TT0 1 Tf
(, )Tj
/TT1 1 Tf
(Rohm and Haas Co. v. Brotech Corp.)Tj
/TT0 1 Tf
(, 127 F.3d 1089, 1092 \(Fed. Cir. 1997\)\(trier of fact not required)Tj
T*
(to accept expert opinion\); )Tj
/TT1 1 Tf
10.496 0 Td
(Powers v. Bayliner Marine Corp.)Tj
/TT0 1 Tf
13.387 0 Td
(, 83 F.3d 789, 797 \(6th Cir. 1996\)\(jury free to weigh expert's)Tj
-23.883 -1.125 Td
(testimony and accept it or reject it\), )Tj
/TT1 1 Tf
14.439 0 Td
(cert. denied)Tj
/TT0 1 Tf
4.72 0 Td
(, 117 S.Ct. 481 \(1996\); )Tj
/TT1 1 Tf
(United States v. Jackson)Tj
/TT0 1 Tf
19.22 0 Td
(, 19 F.3d 1003, 1007)Tj
-38.379 -1.125 Td
(\(5th)Tj
/Span<>> BDC
( )Tj
EMC
(Cir. 1994\) \(trier of fact is responsible for considering credibility a\
nd weight of expert opinion testimony, and such)Tj
T*
(testimony is not conclusive because it is uncontradicted\), )Tj
/TT1 1 Tf
23.078 0 Td
(cert. denied)Tj
/TT0 1 Tf
4.72 0 Td
(, 513 U.S. 891 \(1994\). )Tj
(The Judge was not)Tj
-27.798 -1.125 Td
(compelled, as a matter of law, to give full or decisive weight to the ex\
pert testimony cited by Applicant.)Tj
0 -2.125 TD
(On appeal, Applicant presents arguments for a plausible, alternate inter\
pretation of the record evidence concerning his)Tj
0 -1.125 TD
(rehabilitation efforts. )Tj
8.691 0 Td
(However, the ability to interpret record evidence in more than one way i\
s not enough to)Tj
-8.691 -1.125 Td
(demonstrate the Administrative Judge's interpretation is arbitrary, capr\
icious, or contrary to law. )Tj
/TT1 1 Tf
38.752 0 Td
(See, e.g.)Tj
/TT0 1 Tf
(, ISCR Case)Tj
-38.752 -1.125 Td
(No.)Tj
/Span<>> BDC
( )Tj
EMC
(96-0376 \(March 6, 1997\) at p. 2 \(citing )Tj
/TT1 1 Tf
17.663 0 Td
(American Textile Mfrs Institute v. Donovan)Tj
/TT0 1 Tf
17.385 0 Td
(, 452 U.S. 490, 523 \(1981\)\).)Tj
-35.048 -1.125 Td
(Considering the record as a whole, Applicant has failed to demonstrate t\
he Administrative Judge acted in manner that is)Tj
T*
(arbitrary, capricious, or contrary to law when he weighed the record evi\
dence concerning Applicant's rehabilitation)Tj
T*
(efforts.)Tj
0 -2.125 TD
(\(c\) In addition to the arguments discussed above, Applicant argues: \(\
1\) the Administrative Judge erred by finding that)Tj
0 -1.125 TD
(the)Tj
/Span<>> BDC
( )Tj
EMC
(female former coworker whose photograph Applicant altered in a sexually \
explicit manner filed a lawsuit against)Tj
T*
(him; \(2\))Tj
/Span<>> BDC
( )Tj
EMC
(the Judge's finding that Applicant used the names of some former coworke\
rs in sexually explicit stories he)Tj
T*
(placed on the)Tj
/Span<>> BDC
( )Tj
EMC
(Internet ignored the evidence that he did not use the last names of thos\
e people and \(other than the one)Tj
T*
(woman former)Tj
/Span<>> BDC
( )Tj
EMC
(coworker\) he did not use photographic images to depict them; \(3\) the \
Judge's finding about Applicant's)Tj
T*
(sexual encounters)Tj
/Span<>> BDC
( )Tj
EMC
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on to render an adverse)Tj
T*
(security clearance)Tj
/Span<>> BDC
( )Tj
EMC
(decision; and \(4\) the record evidence as a whole does not support his \
adverse conclusions under)Tj
T*
(Criterion D.)Tj
0 -2.125 TD
(\(c1\) The Administrative Judge erred by finding that the female former \
coworker filed a lawsuit against Applicant based)Tj
0 -1.125 TD
(on his unauthorized alteration of her photograph in a sexually explicit \
manner and posting it on the Internet. )Tj
43.405 0 Td
(The record)Tj
-43.405 -1.125 Td
(evidence shows that the woman threatened legal action against Applicant \
and the matter was settled out of court without)Tj
T*
(a)Tj
/Span<>> BDC
( )Tj
EMC
(lawsuit being filed. )Tj
8.637 0 Td
(However, this error is harmless because there is not a significant chanc\
e that it affected the Judge's)Tj
-8.637 -1.125 Td
(ultimate security clearance decision. )Tj
/TT1 1 Tf
14.799 0 Td
(See, e.g.)Tj
/TT0 1 Tf
3.332 0 Td
(, ISCR Case No. 97-0765 \(December 1, 1998\) at p. 6 \(discussing harmle\
ss)Tj
-18.13 -1.125 Td
(error doctrine\).)Tj
0 -2.125 TD
(\(c2\) The record evidence shows that Applicant did not list the last na\
mes of the former coworkers he used in sexually)Tj
0 -1.125 TD
(explicit stories he authored and placed on the Internet. )Tj
21.937 0 Td
(Because of a stipulation by the parties, only two sexually explicit)Tj
-21.937 -1.375 Td
(stories written by Applicant and posted on the Internet were introduced \
into evidence.)Tj
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(There is insufficient record)Tj
-35.298 -1.125 Td
(evidence to determine whether Applicant's sexually explicit stories prov\
ided details about his former coworkers \()Tj
/TT1 1 Tf
45.277 0 Td
(e.g.)Tj
/TT0 1 Tf
(,)Tj
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0 -1.125 TD
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T*
(comply with rules and regulations apart from his "battle with sexual add\
iction." )Tj
32.059 0 Td
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-32.059 -1.125 Td
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T*
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/Span<>> BDC
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EMC
(or widespread than it was.)Tj
0 -2.125 TD
(\(c\) Applicant's employer may not have had a clear and precise policy o\
n whether employees could use the employer's)Tj
0 -1.125 TD
(computers to access the Internet for personal reasons. )Tj
21.631 0 Td
(However, there is record evidence that Applicant was aware that)Tj
-21.631 -1.125 Td
(his)Tj
/Span<>> BDC
( )Tj
EMC
(use of the employer's computer to satisfy his sexual desires was inappro\
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T*
(cautioned by)Tj
/Span<>> BDC
( )Tj
EMC
(his supervisor that he was spending too much time using the employer's c\
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T*
(Furthermore, as)Tj
/Span<>> BDC
( )Tj
EMC
(a matter of common sense, a reasonable employee knows or should know tha\
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T*
(paying)Tj
/Span<>> BDC
( )Tj
EMC
(employees to use company resources and work time to satisfy their sexual\
desires through pornography, whether)Tj
0 -1.375 TD
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EMC
(online or in some other format.)Tj
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( )Tj
(Applicant has failed to demonstrate the Judge's finding on this point is\
arbitrary,)Tj
-15.111 -1.125 Td
(capricious, or contrary to law.)Tj
0 -2.125 TD
(\(d\) At the hearing, Applicant objected to the admissibility of Governm\
ent Exhibit 2 on the grounds that it was hearsay)Tj
0 -1.125 TD
(under the Federal Rules of Evidence and Applicant did not have an opport\
unity to cross-examine its author. )Tj
43.322 0 Td
(The Judge)Tj
-43.322 -1.125 Td
(overruled Applicant's objection, noting that Government Exhibit 2 was an\
adverse information report and referring to)Tj
T*
(Board decisions that adverse information reports were admissible as an e\
xception to the hearsay rule. )Tj
40.709 0 Td
(On appeal,)Tj
-40.709 -1.125 Td
(Applicant asserts that Applicant was not afforded the opportunity to cro\
ss-examine the author of that document or)Tj
T*
(another)Tj
/Span<>> BDC
( )Tj
EMC
(person referred to in the document. )Tj
17.549 0 Td
(Applicant also argues that the Administrative Judge failed to mention in\
his)Tj
-17.549 -1.125 Td
(decision)Tj
/Span<>> BDC
( )Tj
EMC
(that Applicant did not have the opportunity to cross-examine any person \
who made statements adverse to him,)Tj
T*
(in violation)Tj
/Span<>> BDC
( )Tj
EMC
(of Section 4 of Executive Order 10865. )Tj
20.829 0 Td
(Applicant's cross-examination argument lacks merit.)Tj
-20.829 -2.125 Td
(The right to cross-examination in DOHA proceedings is no greater than a \
criminal defendant's right to confrontation)Tj
T*
(under the Sixth Amendment of the Constitution. )Tj
/TT1 1 Tf
19.554 0 Td
(See, e.g.)Tj
/TT0 1 Tf
3.332 0 Td
(, ISCR Case No. 97-0765 \(December 1, 1998\) at p. 3. )Tj
21.718 0 Td
(The right)Tj
-44.604 -1.125 Td
(to cross-examination is not violated by the admission of documents that \
fall within recognized exceptions to the hearsay)Tj
T*
(rule. )Tj
/TT1 1 Tf
(Id.)Tj
/TT0 1 Tf
( at pp. 2-3. )Tj
(Business records are a recognized exception to the hearsay rule, and an \
adverse information report is)Tj
T*
(admissible as a business record. )Tj
/TT1 1 Tf
12.997 0 Td
(See)Tj
/TT0 1 Tf
( ISCR Case No. 96-0277 \(July 11, 1997\) at p. 3 n.4. )Tj
(Accordingly, the Judge did not)Tj
-12.997 -1.125 Td
(err when he overruled Applicant's objection to Government Exhibit 2. )Tj
28.256 0 Td
(Furthermore, there is no general prohibition)Tj
-28.256 -1.125 Td
(against using hearsay evidence in making a security clearance decision. \
)Tj
/TT1 1 Tf
28.85 0 Td
(Hoska v. U.S. Department of Army)Tj
/TT0 1 Tf
(, 677 F.2d)Tj
-28.85 -1.125 Td
(131, 138-39 \(D.C. Cir. 1982\). )Tj
/TT1 1 Tf
(See Kewley v. Department of Health and Human Services)Tj
/TT0 1 Tf
35.243 0 Td
(, 153 F.3d 1357, 1364 \(Fed. Cir.)Tj
-35.243 -1.125 Td
(1998\)\(agency may rely on hearsay evidence to reach a decision\). )Tj
26.183 0 Td
(Furthermore, a Judge is not obligated to discuss every)Tj
-26.183 -1.125 Td
(piece of evidence or provide a commentary on how the Judge viewed or cha\
racterized each piece of evidence.)Tj
0 -2.125 TD
(3. )Tj
(Whether the Administrative Judge's adverse security clearance decision i\
s arbitrary, capricious, or contrary to law)Tj
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(.)Tj
-46.496 -1.125 Td
(Applicant contends the Judge's adverse decision is arbitrary, capricious\
, or contrary to law and should be reversed)Tj
0 -1.125 TD
(because: \(a\) the Judge's conclusions under Criteria D and E are arbitr\
ary, capricious, or contrary to law; \(b\) the Judge's)Tj
T*
(decision is not consistent with other decisions made by Hearing Office A\
dministrative Judges; and \(c\) the record)Tj
T*
(evidence)Tj
/Span<>> BDC
( )Tj
EMC
(does not support the Judge's adverse security clearance decision.)Tj
0 -2.125 TD
(\(a\) The Board will not repeat its discussion of Applicant's appeal arg\
uments concerning the Administrative Judge's)Tj
0 -1.125 TD
(conclusions under Criteria D and E.)Tj
0 -2.125 TD
(\(b\) Just a trial judge is not bound by the decisions of another trial \
judge, a DOHA Administrative Judge is not bound to)Tj
0 -1.125 TD
(follow the decisions of his or her colleagues in the Hearing Office. )Tj
26.908 0 Td
(Accordingly, )Tj
5.499 0 Td
(the Judge's decision in this case is not)Tj
-32.407 -1.125 Td
(made arbitrary, capricious, or contrary to law merely because Applicant \
believes that other Judges' decisions in different)Tj
T*
(cases indicate the other Judges might have ruled in Applicant's favor. )Tj
27.95 0 Td
(Furthermore, just as an appellate court is not)Tj
-27.95 -1.125 Td
(bound)Tj
/Span<>> BDC
( )Tj
EMC
(by the decisions of a trial court, the Appeal Board is not bound to foll\
ow the decisions of Hearing Office)Tj
T*
(Administrative)Tj
/Span<>> BDC
( )Tj
EMC
(Judges. )Tj
9.471 0 Td
(Accordingly, the Board need not consider or address the Administrative J\
udge decisions cited by)Tj
-9.471 -1.125 Td
(Applicant on)Tj
/Span<>> BDC
( )Tj
EMC
(appeal to decide whether the Judge's decision in this case is sustainabl\
e. )Tj
/TT1 1 Tf
34.421 0 Td
(See, e.g.)Tj
/TT0 1 Tf
(, ISCR Case No. 98-0123)Tj
-34.421 -1.125 Td
(\(October 28,)Tj
/Span<>> BDC
( )Tj
EMC
(1998\) at p. 4.)Tj
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