KEYWORD: Guideline E; Guideline H
DIGEST: After considering the totality of the evidence and paying particular attention to the
transcript of the hearing, we conclude that the Judge did not evidence bias.  He permitted
Applicant to raise objections, present evidence, and call and examine witnesses, as the Directive
provides.  The Judge sustained Applicant’s objections to two Government exhibits due to lack of
authentication.  In fact, the Judge’s admonition to counsel to sit down occurred during
Department Counsel’s later efforts to lay a foundation for these documents, which were not
successful.  The Judge explicitly stated that he would not consider the contents of these two
exhibits, and there is nothing in the Decision to suggest otherwise. Adverse decision affirmed.
CASENO: 17-02391.a1
DATE: 08/07/2018
DATE: August 7, 2018
In Re:
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Applicant for Security Clearance
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ISCR Case No. 17-02391
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Ryan C. Nerney, Esq.
The Department of Defense (DoD) declined to grant Applicant a security clearance.  On
August 21, 2017, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that
decision–security concerns raised under Guideline H (Drug Involvement and Substance Misuse) and
Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as
amended) (Directive).  Applicant requested a hearing.  On April 20, 2018, after the hearing, Defense
Office of Hearings and Appeals (DOHA) Administrative Judge Robert E. Coacher denied
Applicant’s request for a security clearance.  Applicant appealed pursuant to Directive ¶¶ E3.1.28
and E3.1.30.
Applicant raised the following issues on appeal: whether the Judge was biased against him
and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law.  The Judge’s
favorable findings under Guideline H are not at issue in this appeal.  Consistent with the following,
we affirm. 
The Judge’s Findings of Fact
Applicant has worked for a Defense contractor since mid-2016.  He served in the military
from 2009 until 2013, which included a deployment to the Middle East.  Applicant has held a
clearance since 2010.
Applicant used marijuana in 2008, before he joined the military.  After his discharge, he
smoked marijuana offered to him by a friend.  He presented evidence of drug tests in 2017 and 2018,
which were negative.  He signed a statement of intent not to use drugs in the future.  In 2009, while
still in the military, Applicant completed two security clearance applications (SCA).  In neither of
these did he disclose his marijuana use.  He did disclose the use in his 2015 SCA.  In his Answer
to the SOR, Applicant admitted that he “consciously and willingly, attempt[ed] to hide the fact that
I had consumed marijuana[.]” Decision at 3.  This answer is consistent with his testimony at the
hearing.
Applicant realizes now that it was wrong to lie on his two SCAs.  He states that he is now
a different man, older and more mature.  Co-workers, who were aware of Applicant’s security-
significant conduct, testified that he should have a clearance.  He also provided letters of support
from colleagues and certifications that he has earned.
The Judge’s Analysis
Though finding the Drug Involvement allegations mitigated, the Judge concluded that
Applicant had not mitigated his deliberate falsifications of his two SCAs.  The Judge noted that,
having lied on his SCAs, Applicant served an entire military enlistment without notifying anyone
of his misconduct.  Moreover, Applicant’s acknowledgment of his drug use occurred six years after
his omissions, and there is no evidence that Applicant has sought counseling for his conduct. 
Though citing evidence of Applicant’s military service, work performance, and changed
circumstances such as marriage, the Judge concluded that Applicant’s omissions were solely for
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personal gain–that is, qualifying for an enlistment.  Applicant had numerous opportunities to correct
his omissions but failed to do so.
Discussion
Applicant contends that the Judge was biased against him.  There is a rebuttable presumption
that a Judge is impartial and unbiased, and a party seeking to overcome that presumption has a heavy
burden of persuasion.  See, e.g., ISCR Case No. 12-09421 at 2 (App. Bd. Nov. 15, 2017). 
“[E]xpressions of impatience, dissatisfaction, annoyance, even anger” do not establish bias.  “A
judge’s ordinary efforts at courtroom administration–even a stern and short-tempered judge’s
ordinary efforts at courtroom administration–remain immune.”  Liteky v. United States, 510 U.S. 540
at 555-556 (1994).
During cross examination, Applicant’s counsel objected to questions posed by Department
Counsel in an effort to authenticate an interview summary.
[Department Counsel]: [W]ould you concur that those are places that you might have
lived in the 2007 to 2009 time frame? 
[Applicant Counsel]: Objection, assumes facts not in evidence.
[Judge]: Overruled.
[Applicant Counsel]: Well, I just, your honor, I have to -
[Judge]: This is cross-examination, counsel.  Overruled.
[Applicant Counsel]: May I address the court?
[Judge]: Overruled.
[Applicant Counsel]: May I address the -
[Judge]: I’ve made, I’ve made a ruling.  You can sit down.  Go ahead, counsel.  Tr.
at 56-57.
During closing argument, the following colloquy took place: 
[Applicant Counsel]: “[T]here was a demeaning and disparaging cross-examination,
and pressuring my client. . .   The court prevented me from making objections, I want
to put that on the record and I think that’s contrary to the [D]irective.  I am
absolutely allowed to make objections.
[Judge]: You made your objections, you want to explain after I made a ruling.  
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[Applicant Counsel]: Right, and you said no more objections.  So, you told me to sit
down.
A bit later during argument, Applicant’s counsel accused the Judge of bias.
[Applicant Counsel]: I’ve never seen a judge come off and tell an attorney he’s quote
unquote sit down.  That’s demeaning and totally inappropriate and so I want to
make-
[Judge]: Do you have any evidence of bias, [counsel] you want to put on the record?
[Applicant Counsel]: Yes, your -- I just did.
[Judge]: That wasn’t evidence, you’re arguing now.  You know the difference
between argument and evidence?
[Applicant Counsel]: You’re asking a lawyer with 40 years’ experience if I know the
difference between evidence and argument, is that what you’re asking me?
[Judge]: This is the argument phase of this case, that’s all I’m going to say.  Tr. at
91-92. 
After considering the totality of the evidence and paying particular attention to the transcript
of the hearing, we conclude that the Judge did not evidence bias.  He permitted Applicant to raise
objections, present evidence, and call and examine witnesses, as the Directive provides.  The Judge
sustained Applicant’s objections to two Government exhibits due to lack of authentication.  Tr. at
15.  In fact, the Judge’s admonition to counsel to sit down occurred during Department Counsel’s
later efforts to lay a foundation for these documents, which were not successful.  The Judge
explicitly stated that he would not consider the contents of these two exhibits, and there is nothing
in the Decision to suggest otherwise.  Tr. at 83.  Although the Judge may have responded testily to
Applicant’s counsel, we find nothing in his comments or in the Decision to suggest that he had an
inflexible predisposition to render a holding that was adverse to Applicant.  To the contrary, the
Judge’s comments appear to have been part of his effort to administer the hearing in an orderly and
efficient manner.  The Judge found for Applicant on the allegations under Guideline H.  Applicant
has not met his heavy burden of persuasion that the Judge was biased against him.  We resolve this
issue adversely to Applicant.
The balance of Applicant’s brief is a contention that the Judge did not consider all of the
evidence or that he mis-weighed the evidence.  Applicant has not rebutted the presumption that the
Judge considered all of the evidence in the record, nor has he shown that the Judge weighed the
evidence in a manner that was arbitrary, capricious, or contrary to law.  See, e.g., ISCR Case No.
16-01077 at 3 (App. Bd. Apr. 25, 2018).  We give due consideration to the Hearing Office case that
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Applicant has addressed in his brief.  However, Hearing Office Decisions are not binding on other
Hearing Office Judges or on the Appeal Board.  Id.    
The Judge examined the relevant evidence and articulated a satisfactory explanation for the
decision.  The decision is sustainable on this record.  “The general standard is that a clearance may
be granted only when ‘clearly consistent with the interests of the national security.’”  Department
of the Navy v. Egan, 484 U.S. 518, 528 (1988).  See also Directive, Encl. 2, App. A ¶ 2(b):  “Any
doubt concerning personnel being considered for national security eligibility will be resolved in
favor of the national security.” 
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Order 
The Decision is AFFIRMED.   
Signed: Michael Y. Ra’anan        
Michael Y. Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: James E. Moody               
James E. Moody
Administrative Judge
Member, Appeal Board
Signed: Charles C. Hale                
Charles C. Hale
Administrative Judge
Member, Appeal Board
 
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