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

ISCR Case No. 02-05585.a1

Appeal Board

Decided Mar 28, 2003 · Administrative Judge Michael Y. Ra'anan · Appeal

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Appeal at a glance

The appeal involved a security clearance denial based on unresolved tax debts. The applicant argued that the Administrative Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding that the Judge's conclusions were supported by substantial evidence and not contrary to law.

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Appearances

ge from drawing adverse conclusions under Guideline F. The Board's jurisdiction and authority are limited by the provisions of the Directive. The Directive does not give the Board general or supervisory jurisdiction over the industrial security program. Adverse decision affirmed.

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Procedural History

erline">APPEARANCES

FOR GOVERNMENT

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

FOR APPLICANT

Pro Se

Administrative Judge Michael H. Leonard issued a decision, dated December 11, 2002, in which he concluded it is not clearly consistent with the national

interest to

Appeal Board Summary Disposition

grant or continue a security clearance for Applicant. Applicant appealed.

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 issue: whether the Administrative Judge's adverse security clearance decision is arbitrary, capricious, or contrary to

law. For the reasons that follow, the Board affirms the Administrative Judge's decision.

<CENTER>Procedural History</ CENTER>

The Defense Office of Hearings and Appeals issued to Applicant a Statement of Reasons (SOR) dated May 9, 2002. The SOR was based on Guideline F

(Financial Considerations), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct). A hearing was held on July 30, 2002. The Administrative

Judge issued a written decision, dated December 11, 2002, 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 J

Appeal Issues

dge's adverse 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 also 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 the same record. 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 Issue<A HREF="#N_1_"> (1)</A></CENTER>

The Administrative Judge found that Applicant and his spouse owe more than $90,000 in unpaid federal income taxes for several recent tax years, and

concluded that the unpaid tax debt raised security concerns under Guideline F that were not extenuated or mitigated. On appeal, Applicant does not challenge

the Judge's factual findings about the unpaid federal income tax debt. Rather, Applicant argues: (1) he has acknowledged responsibility for the tax debt and has

undertaken efforts to resolve it; (2) he does not have a history of not meeting financial obligations, or an inability or unwillingness to satisfy his debts; (3) the

Judge's favorable findings and conclusions under Guideline E reflect favorably on Applicant's character and conduct under Guideline F; (4) the Judge made

favorable findings and reached favorable conclusions under Guideline J; (5) the Judge entered formal findings in favor of Applicant with respect to five SOR

subparagraphs under Guideline F; and (6) Applicant offers a proposed plan of action involving transfer of final decision-making authority in his company from

him to another person pending a final ruling on Applicant's security clearance case. The Board construes Applicant's arguments as raising the issue of whether

the Judge's adverse security clearance decision is arbitrary, capric

Conclusion

y clearance decision is arbitrary, capricious, or contrary to law.

(1) The Administrative Judge found that Applicant acknowledged responsibility for the federal tax debt and had undertaken efforts to resolve it. Although

Applicant's acknowledgment of responsibility for the tax debt reflects favorably on his judgment and reliability, it did not compel the Judge to make a favorable

security clearance decision. The Judge a