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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The appeal involved a challenge by Department Counsel against an Administrative Judge's favorable decision granting a security clearance to the Applicant based on Foreign Influence. The Board found that the Judge erred in applying the relevant mitigating conditions, leading to a reversal of the decision.

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Appearances

most, Applicant's arguments demonstrate that his case is a close one. However, under the "clearly consistent with the national interest" standard, a close case must be resolved in favor of the national security. Favorable decision reversed.

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Procedural History

"font-size: 11pt">FOR GOVERNMENT

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

FOR APPLICANT

Katherine M. All

Procedural History

n, 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

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.

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 ap

Appeal Issues

eal 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

sister 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 evidence is relevant to considering how Applicant might act if the FC government were to exert

influence or pressure on Applicant's sister in FC.

(i) Applicant correct notes that the Administrative Judge properly stated the burdens of proof for Department Counsel and Applicant. However,

after properly stating the burdens of proof for each party, the Judge proceeded to analyze Applicant's case under Foreign Influence Mitigating

Condition 1 in a manner that had the practical effect of deviating from the burdens of proof for Department Counsel and Applicant.

There is no right to a security clearance. Department of Navy v. Egan, 484 U.S. 518, 528 (1988). See also Dorfman v. Brown, 913 F.2d

1399, 1401 (9th Cir. 1990)(there is no presumption in favor of granting a security clearance), cert. denied, 499 U.S. 905 (1991). Furthermore,

an applicant has the burden of presenting evidence to: (a) refute or rebut the government's case against the applicant, or (b) extenuate or mitigate

the facts and circumstances of the applicant's case that have been admitted or proven. See Directive, Additional Procedural Guidance, Item

E3.1.15. <A HREF="#N_2_"> (2)</A> Accordingly, an applicant has the burden of demonstrating that a mitigating condition under the Adjudicative Guidelines applies and

that burden of proof is not met merely because a Judge concludes that Department Counsel did not present evidence to disprove the applicability

of a mitigating condition. See, e.g., ISCR Case No. 00-0489 (January 10, 2002) at p. 11); ISCR Case No. 99-0519 (February 23, 2001) at p.

12; ISCR Case No. 99-0601 (January 30, 2001) at p. 7 and n.1.

The record evidence that Applicant had a sister in FC gave rise to a security concern that placed the burden on Applicant to demonstrate his ties

with his sister in FC did not place him in a position of vulnerability through possible foreign influence. See, e.g., ISCR Case No. 00-0737

(September 7, 2001) at p. 5; ISCR Case No. 99-0532 (February 27, 2001) at p. 7. In this case, the Judge's analysis had the practical effect of

concluding Applicant was entitled to application of Foreign Influence Mitigating Condition 1 because Department Counsel had not presented

evidence to disprove its applicability. The Judge's analysi

Conclusion

was arbitrary, capricious, and contrary to law. Furthermore, the Judge's erroneous

analysis was crucial to his favorable conclusions under Guideline B (Foreign Influence).

(ii) Our reading of the decision does not lead us to conclude that the Administrative Judge was unaware of the need to consider whe