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ISCR Case No. 00-0519

Appeal Board

Decided Dec 7, 2001 · Administrative Judge Michael Y. Ra'anan · Appeal

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The appeal involved a security clearance denial based on the applicant's failure to meet tax obligations and past misconduct. The applicant argued that she was being punished a second time for issues previously addressed and sought temporary reinstatement of her clearance. The Board affirmed the Administrative Judge's decision, finding no harmful error in the ruling.

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misconduct after receiving a favorable security clearance decision. Reinstatement of an applicant's security clearance does not preclude government from reconsidering the applicant's past conduct and circumstances as it assesses the applicant's security eligibility in light of new information that has negative security implications. Judge's challenged findings about Applicant's tax situation are sustainable. An applicant's failure to deal with his or her state and federal tax obligations provides a rational basis for drawing adverse conclusions about the applicant's security eligibility. Applicant is not entitled to be allowed to keep her security clearance until she retires. Adverse decision affirmed.

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DATE: December 7, 2001

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In Re:

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

Applicant for Security Clearance

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ISCR Case No. 00-0519

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT

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

FOR APPLICANT

Pro Se

Administrative Judge Barry M. Sax issued a decision, dated August 14, 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 following issues: (1) whether Applicant is being unfairly punished a second time concerning matters that resulted in

a one-year suspension of her security clearance in 1991; (2) whether the Administrative Judge made some erroneous findings and reached some

erroneous conclusions about Applicant; and (3) whether Applicant can have her security clearance reinstated for six months to a year until she

retires.

<CENTER>Procedural History</ CENTER>

The Defense Office of Hearings and Appeals issued to Applicant a Statement of Reasons (SOR) dated January 31, 2001. The SOR was based

on Guideline J (Criminal Conduct) and Guideline F (Financial Considerations). A hearing was held on July 11, 2001. The Administrative Judge

issued a written decision, dated August 14, 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 before the Board on Applicant's appeal from the Administrative Judge's adverse 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>

1. Whether Applicant is being unfairly punished a second time concerning matters that resulted in a one-year suspension of her security clearance

in 1991. On appeal, Applicant does not challenge the Administrative Judge's findings that she failed to file her federal income tax returns for tax

years 1985, 1986, and 1987 until 1991. However, Applicant contends she is being unfairly punished a second time because in 1991 her security

clearance was suspended for a year based on her failure to file those income tax returns and later reinstated. Applicant's contention fails to

demonstrate the Administrative Judge erred.

At the hearing, Applicant indicated that around 1991 her security clearance had been suspended for a year based on her failure to file her federal

income tax returns and was later reinstated. (Hearing Transcript at pp. 32-34, 63-64) Although Applicant did not present any documentation to

support her claim on this point, the Administrative Judge accepted it. (Administrative Judge's Decision at p. 6) For purposes of deciding this

appeal, the Board will accept as true Applicant's claim that her failure to file her federal income tax returns for tax years 1985, 1986, and 1987

resulted in an adverse security clearance decision around 1991, that her access to classified information was suspended for a year, and that her

security clearance was reinstated after the one-year suspension.

Security clearance adjudications are not criminal proceedings and adverse security clearance decisions are not criminal penalties or sanctions.

Accordingly, the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution does not apply to security clearance cases. See

DISCR Case No. 94-0295 (December 30, 1994) at p. 4 (discussing federal cases). However, Applicant's appeal argument raises the issue of

whether the Administrative Judge's adverse security clearance decision violates the doctrine of res judicata.

In general, under the doctrine of res judicata, a party cannot try to relitigate a matter that has been litigated previously. The doctrine of res

judicata can be applied to decisions of administrative bodies that have attained finality. Astoria Federal Savings & Loan Association v.

Solimino, 501 U.S. 104, 107 (1991). However, the doctrine of res judicata is not applied as strictly in administrative proceedings as it is in

judicial proceedings. DISCR Case No. 86-3543 (April 27, 1989) at p. 3 (citing federal cases). Furthermore, the doctrine of res judicata should

not be applied in the face of a contrary public policy. Quinones Candelario v. Postmaster General of United States, 906 F.2d 798, 801 (1st

Cir. 1990), cert. denied, 499 U.S. 919 (1991); DISCR Case No. 86-3543 (April 27, 1989) at p. 3 (citing federal cases). See also ISCR Case

No. 97-0191 (April 28, 1998) at pp. 3.

The federal government has a compelling interest in protecting and safeguarding classified information. Department of Navy v. Egan, 484 U.S.

518, 527 (1988). Furthermore, no one has a right to a security clearance. 484 U.S. at 528. A favorable security clearance decision does not

give an applicant the right to retain a security clearance regardless of subsequent events or changed circumstances. Accordingly, the doctrine of

res judicata does not bar an adverse security clearance decision when an applicant has engaged in misconduct subsequent to a favorable security

clearance decision. Therefore, if an applicant who received a favorable decision based on a finding of reform and rehabilitation subsequently

engages in conduct that has negative security implications, the federal government can decide that the applicant's security eligibility should be

reevaluated in light of the applicant's new conduct. And, in light of the "whole person" concept (Directive, Section 6.3; E2.2.1, E2.2.3, and

E2.2.4), such a reevaluation should consider the applicant's overall history, including the earlier conduct, not just the most recent instances of the

applicant's conduct. See ISCR Case No. 97-0191 (April 28, 1998) at pp. 3-4.

In this case, the Administrative Judge found that after 1991: (a) Applicant did not satisfy her federal tax obligations for several years, and had

federal tax liens filed against her; and (b) Applicant failed to satisfy her state tax obligations for several years, and had her wages garnished to

satisfy those state tax obligations. The Judge's findings provided a rational basis for the Judge to consider Applicant's past failure to timely file her

federal tax returns as part of a "whole person" analysis of Applicant's security eligibility. Reinstatement of an applicant's security clearance does

not preclude the government from reconsidering the applicant's past conduct and circumstances as it assesses the applicant's security eligibility in

light of new information that has negative security implications. The Judge's decision in this case does not violate the doctrine of res judicata.

2. Whether the Administrative Judge made some erroneous findings and reached some erroneous conclusions about Applicant. Applicant

challenges:(a) the Administrative Judge's finding that Applicant's payments did not significantly reduce her state and federal tax liabilities; (b) the

Judge's conclusion that Applicant's conduct shows a pattern of misconduct and/or financial problems that began in 1985 and continued to the

present; and (c) the Judge's conclusion that Applicant's conduct demonstrates poor judgment, untrustworthiness or unreliability. Applicant also

asserts (d) that she has held a security clearance for more than 30 years and has shown that she is capable of safeguarding classified information.

(a) Considering the amount of Applicant's payments against the amount of her state and federal tax liabilities, it was not arbitrary or capricious for

the Administrative Judge to find that Applicant's payments did not significantly reduce her state and federal tax liabilities. Applicant's personal

belief that her payments have been significant does not demonstrate the Judge erred.

(b) Considering the record as a whole, the Administrative Judge had a rational basis for concluding that Applicant's conduct demonstrated a

pattern of misconduct or financial problems that began in 1985 and continued to the present.<A HREF="#N_1_"> (1)</A> The specific matters cited by Applicant in her

appeal brief reflect favorable evidence. However, the Judge had to consider the record as a whole and decide whether the favorable evidence

outweighs the unfavorable evidence or vice versa. Given the record evidence of Applicant's long history of continuing problems with her state and

federal tax obligations, the favorable evidence cited by Applicant did not preclude the Judge from reaching his adverse conclusions about her

overall history of conduct.

(c) Given Applicant's failure to timely file her federal tax returns for tax years 1985, 1986, and 1987, and her long history of failing to resolve her

state and federal tax obligations, the Administrative Judge had a rational basis for concluding Applicant's conduct demonstrated poor judgment,

untrustworthiness or unreliability for purposes of determining her security eligibility.

(d) Applicant's history of holding a security clearance does not preclude an adverse security clearance decision in her case. The government need

not wait until a person mishandles or fails to properly safeguard classified information before it can decide to deny or revoke access to such

information. Adams v. Laird, 420 F.2d 230, 238-239 (D.C. Cir. 1969), cert. denied, 397 U.S. 1039 (1970). Indeed, there are many types of

conduct and circumstances other than security violations that can provide a rational basis for an adverse security clearance decision. In this case,

Applicant's overall history of failing to deal with her state and federal tax obligations provides a rational basis for the Judge's adverse conclusions

about her security eligibility.

3. Whether Applicant can have her security clearance reinstated for six months to a year until she retires. Applicant asked the Administrative

Judge to be allowed to keep a security clearance for six months to a year until she retires. Because the Administrative Judge's findings and

conclusions provided a rational basis for his adverse security clearance decision, it was not arbitrary or capricious for the Judge to not give

Applicant the relief she sought. Applicant's personal desire to retain a security clearance until she retires does not provide a rational basis for

concluding it is clearly consistent with the national interest to allow her access to classified information.

<CENTER>Conclusion</CENTER>

Applicant has failed to demonstrate error below. Accordingly, the Board affirms the Administrative Judge's adverse security clearance 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

<A NAME="N_1_">1. </A> The Administrative Judge entered formal findings in favor of Applicant with respect to the state tax matters covered by SOR paragraphs 2.j. and

2.k. Those favorable formal findings are not at issue on appeal.

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Appearances

tatement of an applicant's security clearance does not preclude government from reconsidering the applicant's past conduct and circumstances as it assesses the applicant's security eligibility in light of new information that has negative security implications. Judge's challenged findings about Applicant's tax situation are sustainable. An applicant's failure to deal wi

Procedural History

ine">APPEARANCES

FOR GOVERNMENT

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

FOR APPLICANT

<P STYLE="text-alig

Procedural Rulings

: CENTER">Pro Se

Administrative Judge Barry M. Sax issued a decision, dated August 14, 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 following issues: (1) whether Applicant is being unfairly punished a second time concerning matters that resulted in

a one-year suspension of her security clearance in 1991; (2) whether the Administrative Judge made some erroneous findings and reached some

erroneous conclusions about Applicant; and (3) whether Applicant can have her security clearance reinstated for six months to a year until she

retires.

<CENTER>Procedural History</ CENTER>

</P

Appeal Issues