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ISCR Case No. 00-0429

Appeal Board

Decided Jul 9, 2001 · Administrative Judge Michael Y. Ra'anan · Appeal

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The appeal involved an applicant seeking to overturn an adverse security clearance decision made by Administrative Judge Claude Heiny. The applicant, representing himself, requested a new hearing with legal representation and new evidence. The Board affirmed the Administrative Judge's decision, finding that the applicant did not raise any specific claims of harmful error.

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CENTER">APPEARANCES

FOR GOVERNMENT

Peregrine D. Russell-Hunter, Esq., Chief Department Counsel

FOR APPLICANT

Pro Se

Administrative Judge Claude Heiny issued a decision, dated March 21, 2001, in which he 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 issue of whether the Board should remand the case so that Applicant can have a new hearing where he can have legal representation and

be allowed to present new evidence on his behalf.

<CENTER>Procedural History</ CENTER>

The Defense Office of Hearings and Appeals issued a Statement of Reasons (SOR) dated September 21, 2000 to Applicant. The SOR was based on Guideline F

(Financial Considerations), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct). A hearing was held on November 21, 2000. The Administrative Judge

did not receive a hearing transcript. On March 15, 2001, the Judge sent to both parties proposed findings of fact. Those proposed findings of fact were accepted by

both parties. The Judge issued a written decision, dated March 21, 2001, in which he concluded it is not clearly consistent with the national interest to grant or continue a

security clearance for Applicant.

The case is now before the Board on Applicant's appeal from the Administrative Judge's adverse security clearance decision.

<CENTER>Appeal Issue</CENTER>

The Administrative Judge entered formal findings in favor of Applicant with respect to the matters covered by SOR paragraphs 1.a., 1.b., 1.d., 1.i., and 3.a., and entered

a formal finding in favor of Applicant with respect to Guideline J (Criminal Conduct). Those favorable formal findings are not at issue on appeal.

On appeal, Applicant has not challenged any of the Administrative Judge's findings or conclusions. Applicant merely states "I would like the opportunity to be heard

again, with addition of legal representation, character witnesses, and new evidence, on my behalf. My appeal is based on all charges/matters that were ruled against me.

There is no presumption of error below, and the appealing party has the burden of raising and demonstrating factual or legal error by the Administrative Judge. See, e.g.,

ISCR Case No. 00-0339 (March 22, 2001) at p. 3; ISCR Case No. 00-0248 (March 21, 2001) at p. 2. Furthermore, the appealing party must set forth its claims of

error with specificity. See, e.g., ISCR Case No. 99-0519 (February 23, 2001) at p. 9. The requirement that the appealing party raise issues with specificity serves some

important purposes. First, the appealing party must provide specificity in its claims of error so that the nonappealing party can have a reasonable opportunity to respond

to those claims of error, and the Board can discern what the appealing party is claiming to be factual or legal error by the Judge. See, e.g., ISCR Case No. 99-0295

(October 20, 2000) at pp. 3-4. Second, the Board does not review cases de novo. Rather, the Board is limited to reviewing a Judge's decision under the terms of the

Directive, Additional Procedural Guidance, Item E3.1.32. ("The Appeal Board shall address the material issues raised by the parties to determine whether harmful error

occurred.")(emphasis added) See also ISCR Case No. 99-0519 (February 23, 2001) at p. 9. Accordingly, if an appealing party fails to make any specific claim of

factual or legal error, the Board cannot assume the role of surrogate advocate and search the record below and the Judge's decision to ferret out possible error. Third,

the Board cannot engage in reasoned decision-making when carrying out its appellate responsibilities unless the appealing party provides some specificity to its claims of

factual or legal error. The Board cannot be expected to guess what an appealing party believes is factual or legal error by the Judge. Fourth, unless the appealing party

raises claims of error with some specificity, the Board could waste its time (and prejudice the nonappealing party) by addressing matters that the appealing party does not

believe involve error by the Judge.

In this case, Applicant has not made any specific claim of factual or legal error by the Administrative Judge. Appellant's blanket assertion that he is appealing "all

charges/matters that were ruled against me" lacks the specificity needed to enable the Board to carry out its appellate review responsibilities under the Directive.

Appellant's pro se status does not relieve him of the obligation to raise specific claims of error. Cf. ISCR Case No. 00-0593 (May 14, 2001) at p. 4 ("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."). Even though a pro se

applicant's appeal brief cannot be expected to meet the standards expected of a lawyer's brief, see DISCR Case No. 90-0635 (March 26, 1992) at p. 2, a pro se

applicant's appeal brief must set forth specific claims of error.

Absent a showing of factual or legal error that affects a party's right to present evidence in the proceedings below, a party does not have the right to have a second chance

at presenting its case before an Administrative Judge. See, e.g., ISCR Case No. 00-0593 (May 14, 2001) at p. 4. Applicant has failed to identify or demonstrate any

error by the Judge, let alone any error that affected his rights to have legal representation or to present evidence on his behalf during the proceedings below. Accordingly,

there is no factual or legal basis for the Board to grant the Applicant the relief he seeks.

<CENTER>Conclusion</CENTER>

Applicant has failed to meet his burden of demonstrating error below. Accordingly, the Board affirms the Administrative Judge's March 21, 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

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Appearances

CENTER">APPEARANCES

FOR GOVERNMENT

Peregrine D. Russell-Hunter, Esq., Chief Department Counsel

FOR APPLICANT

Pro Se

Administrative Judge Claude Heiny issued a decision, dated March 21, 2001, in which he 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 De

Procedural History

CENTER>Procedural History</ CENTER>

The Defense Office of Hearings and Appeals issued a Statement of Reasons (SOR) dated September 21, 2000 to Applicant. The SOR was based on Guideline F

(Financial Considerations), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct). A hearing was held on November 21, 2000. The Administrative Judge

did not receive a hearing transcript. On March 15, 2001, the Judge sent to both parties proposed findings of fact. Those proposed findings of fact were accepted by

both parties. The Judge issued a written decision, dated March 21, 2001, in which he concluded it is not clearly consistent with the national interest to grant or continue a

security clearance for Applicant.

The case is now before the Board on Applicant's appeal from the Administrative Judge's adverse security cleara

Appeal Issues