A decided public DOHA case, shown for research, not advice or a prediction.

ISCR Case No. 00-0484

Appeal Board

Decided Feb 1, 2002 · Administrative Judge Michael Y. Ra'anan · Appeal

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Appeal at a glance

The appeal involved a security clearance decision where the Administrative Judge granted the clearance based on the application of Foreign Influence Mitigating Conditions. The Department Counsel appealed, arguing that the Judge misapplied these conditions. The Board found merit in the appeal and reversed the favorable decision, concluding that the Judge's analysis was flawed and did not adequately consider the national security implications.

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Appearances

sponte. The nonappealing party is entitled to urge Board to affirm the

decision below on alternate grounds supported by the record below. At most, Applicant's arguments demonstrate that his case is a cl

Procedural History

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SSN: -----------

Applicant for Security Clearance

<HR>

ISCR Case No. 00-0484

APPEAL BOARD DECISION AND REVERSAL ORDER

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Procedural Rulings

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APPEARANCES

FOR GOVERNMENT

Rita C. O'Brien, Esq., Department Counsel

FOR APPLICANT

Katherine M. Allen, Esq.

Administrative Judge Paul J. Mason issued a decision, dated June 8, 2001, in which he concluded it is clearly consistent with the national interest to

grant or continue a security clearance for Applicant. Department Counsel appealed. For the reasons set forth below, the Board reverses the

Administrati

Appeal Issues

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.

This appeal presents the following issues: (1) whether the Administrative Judge misapplied Foreign Influence Mitigating Conditions 1 and 3; and (2)

whether the Administrative Judge's favorable security clearance decision should be sustained or reversed.

<CENTER>Procedural History</ CENTER>

The Defense Office of Hearings and Appeals issued to Applicant a Statement of Reasons (SOR) dated September 11, 2000. The SOR was

based on Guideline B (Foreign Influence) and Guideline C (Foreign Preference). A hearing was held on January 30, 2001.

The Administrative Judge issued a written decision, dated June 8, 2001, in which he concluded it is clearly consistent with the national interest to

grant or continue a security clearance for Applicant. The case is before the Board on Department Counsel's appeal from the Judge's favorable

security clearance decision.

<CENTER>Scope of Review</CENTER>

On appeal, the Board does not review a case de novo. Rather, the Board addresses the material issues raised by the parties to determine whether

there is factual or legal error. There is no presumption of error below, and the appealing party must raise claims of error with specificity and

identify how the Administrative Judge committed factual or legal error. See Directive, Additional Procedural Guidance, Item E3.1.32. See, e.g.,

ISCR Case No. 00-0050 (July 23, 2001) at pp. 2-3 (discussing reasons why party must raise claims of error with specificity).

When an Administrative Judge's factual findings are challenged, the Board must determine whether "[t]he Administrative Judge's findings of fact

are supported by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary

evidence. In making this review, the Appeal Board shall give deference to the credibility determinations of the Administrative Judge." Directive,

Additional Procedural Guidance, Item E3.1.32.1. The Board must consider not only whether there is record evidence supporting a Judge's

findings, but also whether there is evidence that fairly detracts from the weight of the evidence supporting those findings. See, e.g., ISCR Case

No. 99-0205 (October 19, 2000) at p. 2.

When a challenge to an Administrative Judge's rulings or conclusions raises a question of law, the Board's scope of review is plenary. See DISCR

Case No. 87-2107 (September 29, 1992) at pp. 4-5 (citing federal cases).

<CENTER>Appeal Issues</CENTER>

The Administrative Judge found in favor of Applicant with respect to the SOR paragraphs concerning Guideline C (Foreign Preference) and

entered formal findings for Applicant in connection with those SOR paragraphs. The Judge's favorable conclusions under Guideline C are not at

issue on appeal.

1. Whether the Administrative Judge misapplied Foreign Influence Mitigating Conditions 1 and 3. The Administrative Judge concluded that

Foreign Influence Mitigating Conditions 1 and 3 applied. Department Counsel challenges the Judge's application of those two provisions of the

Adjudicative Guidelines. For the reasons that follow, the Board concludes Department Counsel's arguments have mixed merit.

a. Foreign Influence Mitigating Condition 1.<A HREF="#N_1_"> (1)</A> Department Counsel contends the Administrative Judge misapplied this provision of the

Adjudicative Guidelines because: (i) the Judge improperly shifted the burden of proof from Applicant to the government with respect to Foreign

Influence Mitigating Condition 1; (ii) the Judge failed to consider the possibility that other forces might influence or coerce Applicant through his

Conclusion

ster in a foreign country (FC); (iii) the Judge ignored the fact that FC has an authoritarian regime with a history of hostage-taking; and (iv) the

Judge ignored evidence that showed Applicant complied with directions of FC officials concerning the use of an FC passport because he was

afraid of confronting them over the issue and that e