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

ISCR Case No. 00-0596

Appeal Board

Decided Oct 4, 2001 · Administrative Judge Michael Y. Ra'anan · Appeal

Reading

Workbench

Appeal at a glance

The appeal involved a review of an Administrative Judge's decision denying the applicant a security clearance based on financial considerations. The applicant argued that the judge erred in finding him responsible for certain debts and that the decision was arbitrary and capricious. The Board affirmed the judge's decision, finding no harmful error in the proceedings.

Descriptive structured reading of this decided, public Appeal Board decision: what the case says, not a prediction or advice.

Full decision

Open original PDF

The complete official text, footnotes and signatures included, is in the original PDF.

Decision text, by section

Appeal Board Decision

o. 00-0596

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 June 13, 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 the Administrative Judge erred by finding Applicant is responsible for certain debts; and (2) whether the

Administrative Judge's adverse security clearance decision is arbitrary, capricious, or contrary to law.

<CENTER>Procedural History</ CENTER>

The Defense Office of Hearings and Appeals issued a Statement of Reasons (SOR) dated October 20, 2000 to Applicant. The SOR was based on Guideline F

(Financial Considerations). A hearing was held on April 16, 2001. The Administrative Judge issued a written decision, dated June 13, 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><STR

Appearances

ext-align: CENTER">APPEARANCES

FOR GOVERNMENT

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

Procedural History

r the Administrative Judge erred by finding Applicant is responsible for certain debts; and (2) whether the

Administrative Judge's adverse security clearance decision is arbitrary, capricious, or contrary to law.

<CENTER>Procedural History<

Procedural Matters

/ CENTER>

The Defense Office of Hearings and Appeals issued a Statement of Reasons (SOR) dated October 20, 2000 to Applicant. The SOR was based on Guideline F

(Financial Considerations). A hearing was held on April 16, 2001. The Administrative Judge issued a written decision, dated June 13, 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 o

Appeal Issues

f 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 the Administrative Judge erred by finding Applicant is responsible for certain debts. The Administrative Judge found that Applicant is indebted to: (a) a

commercial creditor for approximately $5,100, for a civil judgment entered against him in September 1994 relating to a repossessed automobile; and (b) the Internal

Revenue Service (IRS) for approximately $41,000, for tax years 1979 and 1980. During the proceedings below and on appeal, Applicant has disputed the validity of

those debts.

DOHA proceedings are not a proper forum for Applicant to challenge the validity of the civil judgment entered against him in September 1994 or the validity of the federal

taxes (and interest and penalties) assessed against him by the IRS. If Applicant wishes to contest the validity of those debts, he must seek legal recourse elsewhere.<A HREF="#N_1_"> (1)</A>

Considering the record as a whole, the Administrative Judge had ample evidence to find that Applicant was responsible for the debts to the commercial creditor and the

IRS.

2. Whether the Administrative Judge's adverse security clearance decision is arbitrary, capricious, or contrary to law. Applicant: (a) challenges the Administrative Judge's

application of Financial Consideration Disqualifying Conditions 1 and 3; (b) asserts the Judge erred by concluding he is not resolving his debts in a timely manner; and (c)

argues the Judge erred by concluding he is a security risk. The Board construes these contentions as raising the issue of whether the Judge's adverse decision is arbitrary,

capricious, or contrary to law.

(a) The Administrative Judge applied Financial Considerations Disqualifying Condition 1<A HREF="#N_2_"> (2)</A> and Financial Considerations Disqualifying Condition 3<A HREF="#N_3_"> (3)</A> to Applicant's case.

Applicant challenges the Judge's application of those two disqualifying conditions. In support of that challenge, Applicant argues: (i) apart from the civil judgment against

him and the federal tax debt, he has paid his other debts and financial obligations; (ii) he has paid his federal taxes for 41 years, as opposed to the two tax years for which

the IRS says he owes taxes; (iii) despite his belief that he does not owe the debts covered by the SOR, he is continuing to try to get them resolved; and (iv) he is willing to

pay his just debts, and merely wants to prove that debts are justifiable before he pays them.

Applicant's arguments fail to demonstrate the Administrative Judge erred by applying Financial Considerations Disqualifying Conditions 1 and 3. Even though Applicant

has paid other debts and financial obligations, his failure to satisfy or otherwise resolve the two significant debts against him provides a sufficient basis for the Judge to

apply Disqualifying Condition 1. Furthermore, Applicant's failure to satisfy or otherwise resolve those two significant debts for the past several years provides an ample

basis for the Judge to apply Disqualifying Condition 3.

(b) Applicant has been aware since about 1990 that the IRS has assessed him for unpaid taxes for two tax years. The civil judgment was entered against Applicant in

September 1994. As of the hearing in April 2001, Applicant still had not resolved those debts. Accordingly, the Administrative Judge had an ample basis for concluding

Applicant has not acted in a timely manner to deal with those debts.

(c) Applicant points to his past military service, his years of employment in the defense industry, and his years of having a security clearance, and contends the

Administrative Judge is wrong by concluding he is a security risk. Applicant's argument fails to demonstrate the Judge erred.

The favorable evidence cited by Applicant weighs in his favor, but it did not preclude the Administrative Judge from making an adverse security clearance decision. A

Judge must consider the record evidence, both favorable and unfavorable, and decide whether the favorable evidence outweighs the unfavorable evidence or vice versa.

Considering the record as a whole, the Board concludes Applicant has failed to demonstrate the Judge weighed the record evidence in a manner that is arbitrary,

capricious, or contrary to law.

Security clearance decisions are not an exact science, but rather are predictive judgments about a person's security suitability in light of that person's past conduct and

present circumstances. Department of Navy v. Egan, 484 U.S. 518, 528-29 (1988). The federal government need not wait until an applicant mishandles or fails to

properly handle or safeguard classified information before it can deny or revoke access to such information. Adams v. Laird, 420 F.2d 230, 238-39 (D.C. Cir. 1969),

cert. denied, 397 U.S. 1039 (1970). Furthermore, Department Counsel does not have to prove that an applicant poses a "clear and present danger" to national security.

Smith v. Schlesinger, 513 F.2d 462, 476 n.48 (D.C. Cir. 1975). Under Guideline F, the security eligibility of an applicant is placed into question when that applicant is

shown to have a history of excessive indebtedness or recurring financial difficulties. See ISCR Case No. 96-0454 (February 7, 1997) at p. 2. The facts and

circumstances of Applicant's history of unresolved debts provide a rational basis for the Administrative Judge's adverse security clearance decision.

<CENTER>Conclusion</CENTER>

Applicant has failed to demonstrate error below. Accordingly, the Board affirms the Administrative Judge's June 13, 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

Conclusion

Administrative Judge

Member, Appeal Board

<A NAME="N_1_">1. </A> See, e.g., ISCR Case No. 99-0433 (May 24, 2000) at p. 2 ("Applicant's right to a hearing does not mean that he can litigate in DOHA proceedings the validity of tax

matters that are committed by law to the jurisdiction of the IRS and the federal courts."); ISCR Case No. 99-0116 (M