KEYWORD: Guideline D; Guideline J; Guideline E
DIGEST: There is a rebuttable presumption that a Judge is impartial and unbiased and a party
seeking to rebut that presumption has a heavy burden on appeal.  The presence of some
mitigating evidence does not alone compel the Judge to make a favorable security clearance
decision.  Adverse decision affirmed.
CASENO: 04-07861.a1
DATE: 10/11/2007
DATE: October 11, 2007
In Re:
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Applicant for Security Clearance
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ISCR Case No.    04-07861
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Stephanie C. Hess, Esq., Department Counsel
FOR APPLICANT
Elizabeth L. Newman, Esq.  
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On July 29, 2005, DOHA issued a statement of reasons advising Applicant of the basis
for that decision—security concerns raised under Guideline D (Sexual Conduct), Guideline J
(Criminal Conduct), and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6
The forensic psychiatrist concluded that Applicant’s “condition is no longer active.” AE A at 4.1
Decision at 2, n. 2.2
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(Jan. 2, 1992), as amended (Directive).  Applicant requested a hearing.  On March 26, 2007, after
the hearing, Administrative Judge John Grattan Metz, Jr., denied Applicant’s request for a security
clearance.  Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raises the following issues on appeal: whether the Judge demonstrated bias against
Applicant; and whether the Judge’s decision was arbitrary, capricious, or contrary to law.
The Judge made the following relevant factual findings: Between 1993 and 2002, Applicant
downloaded pornographic images onto his computer from the internet, amassing a collection of
around 63,000.  A small number of these images, perhaps a hundred or less, depicted nude images
under the age of 18 and included “video clips of adults engaging in sexual acts with minors.”  On
other occasions, Applicant used a radio scanner to listen to other persons’ cordless telephone
conversations, sometimes taping them for future listening.  He also took photographs of female
revelers baring their upper bodies during Mardi Gras in New Orleans, posting them on his website
and offering them for sale.  These activities were discovered when Applicant underwent a “lifestyle
polygraph” pursuant to his employment with a government agency.  Applicant consulted a
psychologist and, in preparation for the hearing, a forensic psychiatrist as well.  These persons
concluded that Applicant suffered from “a sexual disorder not otherwise specified” and that he was
not a security risk.   Applicant continues to view pornography on line about 1-2 hours a week.  The1
Judge’s findings include the following in a footnote: “Although not alleged in the SOR, Applicant
admitted to “peeping tom” activity with binoculars, both in his neighborhood and while traveling on
business.”    2
Applicant’s first assignment of error refers to a remark the Judge made during Applicant’s
closing argument.  Applicant argues that comment indicates that the Judge did not believe the
argument Applicant was making and that therefore the Judge’s decision was not fair or impartial.
There is a rebuttable presumption that a Judge is impartial and unbiased, and a party seeking to rebut
that presumption has a heavy burden of persuasion.  See, e.g., ISCR Case No. 02-08032 at 4 (App.
Bd. May 14, 2004).  The Board has noted that the issue is not whether Applicant believes the Judge
was biased or prejudiced against Applicant.  Rather, the issue is whether the record 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.  See, e.g., ISCR Case No. 99-0710 at 5 (App. Bd. Mar. 19,
2001).  Assessing credibility is within the authority of a Judge, and adverse findings by a Judge do
not, by themselves, indicate bias.  See, e.g., ISCR Case No. 06-09401 at 2 (App. Bd. Apr. 16, 2007).
Applicant has not met his burden of demonstrating that the cited comment constitutes bias on the
part of the Judge.  
In contending that the Judge’s decision is arbitrary, capricious, and contrary to law, Applicant
raises two arguments.  The first is that the Judge committed error by failing to find that Applicant’s
behavior was mitigated.  Applicant’s argument in this regard lacks merit.  In his conclusions, the
Judge discussed the record evidence and explained why Applicant’s evidence did not overcome the
government’s security concerns.  Moreover, the application of disqualifying and mitigating
See, e.g., 18 U.S.C. § 2252A; Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).3
“My most serious crime is possession of child pornography.  I began collecting images from the internet in4
1993 . . . In early April 2002 my digital image and video collection consisted of over 63,000 files, of which about 100
were nude photos of minors, mostly by famous photographers . . . and in my estimation, less than a dozen that would have
met the legal definition of child pornography.”  GE 2 (Applicant statement to Defense Security Service) at 2.
“[Applicant] stated that he frequents various Internet newsgroups and automatically downloads a significant number of
pornographic pictures . . .although he did not originally intend to download child pornography . . .[o]n occasion he has
put those files into a folder on his hard drive and saved them . . . [He] has viewed Internet pictures of naked children
ranging in age from 5 to 18.”  GE 4 (Memo by Government Agency) at 1. 
3
conditions does not turn simply on a finding that one or more of them apply to the particular facts
of a case.  See, e.g., ISCR Case No. 01-14740 at 7 (App. Bd. Jan. 15, 2003).  Thus, the presence of
some mitigating evidence does not alone compel the Judge to make a favorable security clearance
decision.  As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the
favorable evidence outweighs the unfavorable evidence, or vice versa.  An applicant’s disagreement
with the Judge’s weighing of the facts, or an ability to argue for a difrerent interpretation of the
evidence, is not sufficient to demonstrate the Judge weighed the evidence in a manner that is
arbitrary, capricious, or contrary to law.  See, e.g., ISCR Case No. 05-05439 at 2 (App. Bd. May 29,
2007).
Applicant also argues that the government failed to produce evidence that his use of the
scanner and possession of photographs of minors was illegal.  On this latter point, he contends that
the government presented no evidence that these images were those of actual minors.   Therefore,3
Applicant contends that the Judge should not have found against him on these matters insofar as they
were alleged under Guideline J.  The Board finds that the Judge’s finding concerning child
pornography is based upon substantial evidence, sufficient to shift the burden of persuasion to
Applicant.   Any error as to the legality of the scanner is harmless.  Furthermore, the Judge’s4
decision, read in light of the record as a whole, articulates a rational connection between his findings
and his adverse security clearance decision.  See Motor Vehicle Mfrs. Ass’n of the United States v.
State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983).  The record supports the conclusion that
Applicant failed to meet his burden of persuasion that it is “clearly in the interests of national
security” for him to have a clearance.  Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).
The Judge’s decision is not arbitrary, capricious, or contrary to law.
4
Order
The Judge’s decision denying Applicant a security clearance is AFFIRMED.     
Signed: Jean E. Smallin           
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: William S. Fields         
William S. Fields
Administrative Judge
Member, Appeal Board
Signed: James E. Moody           
James E. Moody
Administrative Judge
Member, Appeal Board