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

ISCR Case No. 02-06723

Appeal Board

Decided Sep 15, 2003 · Administrative Judge Michael D. Hipple · Appeal

Reading

Workbench

Appeal at a glance

The appeal involved a denial of security clearance based on foreign influence concerns. 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 that the applicant's assertions did not demonstrate error.

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

Appearances

-->

DATE: September 15, 2003

<HR>

In Re:

-----------

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

Applicant for Security Clearance

<HR>

ISCR Case No. 02-06723

A

Appeal Board Summary Disposition

SPAN>

Pro Se

The Defense Office of Hearings and Appeals (DOHA) issued to Applicant a Statement of Reasons (SOR) dated October 25, 2002 which stated the reasons why

DOHA proposed to deny or revoke access to classified information for Applicant. The SOR was based on Guideline B (Foreign Influence). Administrative

Judge Martin H. Mogul issued an unfavorable security clearance decision dated June 4, 2003.

Applicant appealed the Administrative Judge's unfavorable decision. The Board has jurisdiction under Executive Order 10865 and Department of Defense

Directive 5220.6 (Directive), dated January 2, 1992, as amended.

The following issue has been raised on appeal: whether the Administrative Judge's decision is arbitrary, capricious, or contrary to law. For the reasons that

follow, the Board affirms the Administrative Judge's 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. 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 the rulings or conclusions of an Administrative Judge are challenged, the Board must consider whether they: (1) are arbitrary or capricious; or (2)

contrary to law. Directive, Additional Procedural Guidance, Item E3.1.32.3. In deciding whether the Judge's rulings or conclusions are arbitrary or capricious,

the Board will review the Judge's decision to determine whether: it does not examine relevant evidence; it fails to articulate a satisfactory explanation for its

conclusions, including a rational connection between the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of

judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision that runs contrary to the record evidence; or it is so

implausible that it cannot be ascribed to a mere differenc

Appeal Issues

of opinion. See, e.g., ISCR Case No. 97-0435 (July 14, 1998) at p. 3 (citing Supreme Court

decision). In deciding whether the Judge's rulings or conclusions are contrary to law, the Board will consider whether they are contrary to provisions of

Executive Order 10865, the Directive, or other applicable federal law. Compliance with state or local law is not required because security clearance

adjudications are conducted by the Department of Defense pursuant to federal law. See U.S. Constitution, Article VI, clause 2 (Supremacy Clause). See, e.g.,

ISCR Case No. 00-0423 (June 8, 2001) at p. 3 (citing Supreme Court decisions).

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, and whether the Judge's findings reflect a reasonable interpretation of the record

evidence as a whole. Although a Judge's credibility determination is not immune from review, the party challenging a Judge's credibility determination has a

heavy burden on appeal.

When an appeal issue 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).

If an appealing party demonstrates factual or legal error, then the Board must consider the following questions:

Is the error harmful or harmless? See, e.g., ISCR Case No. 00-0250 (July 11, 2001) at p. 6 (discussing harmless error doctrine);

Has the nonappealing party made a persuasive argument for how the Administrative Judge's decision can be affirmed on alternate grounds? See, e.g., ISCR

Case No. 99-0454 (October 17, 2000) at p. 6 (citing federal cases); and

If the Administrative Judge's decision cannot be affirmed, should the case be reversed or remanded? (Directive, Additional Procedural Guidance, Items

E3.1.33.2 and E3.1.33.3)

<CENTER>Appeal Issue</CENTER>

Applicant has made assertions in his appeal brief that go beyond the record below and constitute new evidence. The Board cannot consider new evidence on

appeal. Directive, Additional Procedural Guidance, Item E3.1.29. The Board will limit its consideration of Applicant's brief to those arguments that are not

based on new evidence.

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

the conclusion of the Administrative Judge, Applicant does not think he has close contact with his parents, who live in the People's Republic of China; (b) there

is no chance that a foreign power can use his parents and relatives to make him do things harmful to the United States; and (c) he considers the United States his

homeland, he has lived in this count

Appeal Board Summary Disposition

nt. Notwithstanding Applicant's assertions to the contrary on appeal, the Board

concludes that there is adequate support in the record for the Administrative Judge's conclusion that Applicant's contacts with his parents were of sufficient

magnitude to be of unmitigated security concern.

By asserting that none of his relatives in the