DATE: September 20, 2001
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SSN: -----------
Applicant for Security Clearance
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Erin C. Hogan, Esq., Department Counsel
FOR APPLICANT
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.
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.
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, (1) 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. (2)
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. (3) Security clearance adjudications involve the exercise of Executive Branch authority under the Constitution. (4)
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. (5) The United States has a compelling interest in protecting classified information. (6) 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. (7) Accordingly, the Board has declined to recognize the defense of laches in security clearance cases. (8) 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. (9) 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. (10) 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. (11)
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. (12) 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. (13) There is no presumption of error below and the appealing party has the burden of raising and demonstrating error. (14) Furthermore, the appealing party must raise its claims of error with specificity. (15) 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. (16) An SOR need not enumerate every single fact or piece of evidence that may be relevant to the allegations made against an applicant. (17) 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. (18) 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. (19) 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. (20) 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. (21) 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 unfavorable evidence or vice versa. (22) Of course, a Judge's findings and conclusions are reviewable on appeal, (23) but the Board will not disturb a Judge's weighing of the record evidence unless the appealing party demonstrates the Judge weighed the evidence in a manner that is arbitrary, capricious, or contrary to law. (24)
Once an applicant admits, or Department Counsel proves, that the applicant has engaged in conduct that has negative security implications, the applicant has a heavy burden of persuasion that it is clearly consistent with the national interest to grant or continue a security clearance for the applicant. (25) Persons entrusted with access to classified information have a fiduciary duty to properly handle and safeguard classified information, (26) and any failure to satisfy that duty raises serious questions as to their suitability for access to classified information. (27) A person who has committed security violations has a very heavy burden of demonstrating that they should be entrusted with classified information. Because security violations strike at the heart of the industrial security program, an Administrative Judge must give any claims of reform and rehabilitation strict scrutiny.
Applicant is correct in arguing that his handling of classified information since the January 1998 security violations is relevant. However, a Judge can consider the seriousness of an applicant's security violations, weigh them in light of the applicant's overall history of handling classified information, and decide whether those violations raise doubts about the applicant's security eligibility. (28) Even though Applicant's handling of classified information since the January 1998 security violations weighs in his favor, it did not compel the Judge, as a matter of law, to conclude Applicant had met his burden of showing reform and rehabilitation sufficient to warrant a favorable security clearance decision.
The evidence that Applicant is an honest and truthful person is not dispositive. The Administrative Judge did not base her adverse decision on a finding or conclusion that Applicant was not honest or truthful; rather, the Judge based her adverse decision on Applicant's security violations. Even if an applicant is an honest and truthful person, the applicant may engage in conduct unrelated to honesty and truthfulness that has negative security implications. The negative security implications of security violations are not negated merely because the security violator is honest and truthful about admitting those violations.
The Administrative Judge did not act in an arbitrary or capricious manner by evaluating Applicant's written and testimonial statements to consider whether Applicant demonstrated an understanding or appreciation of his security responsibilities. The Judge's analysis of this point was consistent with the requirement that she consider Applicant's motivation (Directive, Section 6.3.4), the absence or presence of rehabilitation (Directive, Section 6.3.5), and the probability that Applicant might engage in security violations in the future (Directive, Section 6.3.6). (29)
Applicant strongly disagrees with the Administrative Judge's weighing of the evidence concerning reform. However, Applicant's disagreement with the Administrative Judge's weighing of the evidence is not sufficient to demonstrate the Judge weighed the evidence improperly. Applicant's ability to argue for an alternate interpretation of the record evidence does not suffice to demonstrate the Judge's findings and conclusions are arbitrary, capricious, or contrary to law. (30) Considering the record as a whole, the Judge's conclusion about insufficient evidence of reform is sustainable.
(d) Whole person concept/overall common sense determination. Applicant contends: (i) the Administrative 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, and (ii) a decision should be made on his security eligibility based on an "overall common sense determination" and that Guidelines E and K should not be viewed in isolation, but "evaluated in the context of the whole person."
The Directive requires that security clearance adjudicators apply the whole person concept and make an overall common sense determination when evaluating an applicant's security eligibility. (31) A review of the decision below shows the Administrative Judge considered the record evidence, made extensive findings of fact, applied pertinent provisions of the Directive (including the Adjudicative Guidelines), considered Applicant's evidence and explanations, and articulated rational explanations for her conclusions (both for and against Applicant). Considering the record as a whole, the detailed decision issued by the Judge applies the "whole person" concept and reflects "an overall common sense determination." Applicant's contention to the contrary is not persuasive.
Applicant has failed to demonstrate error below. Accordingly, the Board affirms the Administrative Judge's May 7, 2001 decision.
Signed: Emilio Jaksetic
Emilio Jaksetic
Administrative Judge
Chairman, Appeal Board
Signed: Michael Y. Ra'anan
Michael Y. Ra'anan
Administrative Judge
Member, Appeal Board
Signed: Jeffrey D. Billett
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
1. See Board's discussion of Applicant's second appeal issue.
2. The Administrative Judge also found Applicant did not omit material facts about an October 1998 security violation (for which he was not culpable) during a January 1999 interview (SOR paragraphs 2.b and 3.a). Those findings are not at issue on appeal.
3. See, e.g., United States v. Banks, 115 F.3d 916, 919 (11th Cir. 1997), cert. denied, 522 U.S. 1075 (1998); United States v. Jac Natori Co., Ltd., 108 F.3d 295, 298 (Fed. Cir. 1997); United States v. Dos Cabezas Corp., 995 F.3d 1486, 1489 (9th Cir. 1993); Capozzi v. United States, 980 F.2d 872, 875 (2d Cir. 1992).
4. Department of Navy v. Egan, 484 U.S. 518, 527-528 (1988).
5. Herman v. South Carolina National Bank, 140 F.3d 1413, 1427 (11th Cir. 1998), reh'g denied, 156 F.3d 188 (1998), 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 176, 180 (8th Cir. 1987); United States v. Hughes House Nursing Home, 710 F.2d 891, 895 (1st Cir. 1983).
6. Department of Navy v. Egan, 484 U.S. 518, 527 (1988).
7. See, e.g., Black's Law Dictionary (6th edition, West Publishing Co., 1990) at p. 875 (entry on "laches")
8. See, e.g., ISCR Case No. 94-0722 (September 28, 1995) at p. 4; DISCR Case No. 89-1552 (June 27, 1991) at p. 2.
9. See, e.g., ISCR Case No. 97-0409 (April 29, 1998) at p. 3; DISCR Case No. 88-2271 (October 16, 1991) at p. 3. See also Panhandle Co-Operative Association v. Environmental Protection Agency, 771 F.2d 1149, 1153 (8th Cir. 1985)("Before an agency action may be set aside for lack of punctuality, the aggrieved party must show that it was prejudiced by the delay.").
10. See, e.g., DISCR Case No. 92-1606 (January 5, 1995) at p. 6 (it is not arbitrary, capricious, or contrary to law for Administrative Judge to hold an applicant responsible for a security violation even though other persons shared culpability for the security violation).
11. By addressing Applicant's argument, the Board expresses no opinion as whether other persons can or should be, or have been, called to account for the security violations associated with the five-day meeting in January 1998. That is a matter committed to the authority of other Department of Defense personnel.
12. See, e.g., ISCR Case No. 99-0447 (July 25, 2000) at p. 6; DISCR Case No. 92-1352 (October 8, 1993) at pp. 6-7 (citing federal cases). See also Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001).
13. See, e.g., ISCR Case No. 00-0050 (July 23, 2000) at p. 3.
14. See, e.g., ISCR Case No. 99-0519 (February 23, 2001) at p. 7
15. See, e.g., ISCR Case No. 00-0050 (July 23, 2001) at pp. 2-3.
16. See, e.g., ISCR Case No. 99-0710 (March 19, 2001) at p. 2.
17. See, e.g., DISCR Case No. 88-2576 (November 15, 1990) at p. 4 ("[A]n SOR need not enumerate precisely every event or fact to which an Administrative Judge may finally attach significance.").
18. See Directive, Section 6.3.1.(security clearance decision should include consideration of "[n]ature and seriousness of the conduct and surrounding circumstances"); E2.2.1.2 (security clearance adjudicator should consider "[t]he circumstances surrounding the conduct").
19. See Directive, Adjudicative Guidelines, Security Violations Disqualifying Condition 2 (E2.A11.1.2.2)("Violations that are deliberate or multiple or due to negligence"). See also ISCR Case No. 99-0109 (March 1, 2000) at p. 5 (negligent or inadvertent security violations can provide rational basis for adverse security clearance decision)(citing earlier Board decisions).
20. See, e.g., ISCR Case No. 99-0228 (March 12, 2001) at p. 8.
21. See, e.g., ISCR Case No. 99-0554 (July 24, 2000) at p. 6.
22. See, e.g., ISCR Case No. 00-0378 (August 15, 2001) at p. 4.
23. Directive, Additional Procedural Guidance, Item E3.1.32.
24. See, e.g., ISCR Case No. 00-0016 (October 23, 2000) at p. 3.
25. Directive, Additional Procedural Guidance, Item E3.1.15. See, e.g., ISCR Case No. 99-0601 (January 30, 2001) at p. 7; ISCR Case No. 97-0435 (July 14, 1998) at p. 5.
26. See, e.g., ISCR Case No. 97-0435 (July 14, 1998) at pp. 3-4 (citing other Board decisions).
27. See, e.g., ISCR Case No. 97-0435 (July 14, 1998) at p. 3 ("[S]ecurity violations provide one of the strongest possible reasons for denying or revoking access to classified information.") and p. 4 ("[S]ecurity violations raise very serious questions about an applicant's suitability for access to classified information.").
28. See, e.g., DISCR Case No. 89-0652 (July 30, 1992) at p. 6.
29. See also ISCR Case No. 97-0435 (July 14, 1998) at p. 4 (Administrative Judge may consider evidence that shows applicant failed to understand his security responsibilities).
30. See, e.g., ISCR Case No. 99-0710 (March 19, 2001) at p. 4.
31. See Directive, Section 6.3; E2.2.1.; E2.2.3.