DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 09-04073 ) ) Applicant for Security Clearance ) Appearances For Government: D. Michael Lyles, Esquire, Department Counsel For Applicant: Pro se ______________ Decision ______________ RICCIARDELLO, Carol G., Administrative Judge: Applicant mitigated the Government’s security concerns under Guideline B, Foreign Influence. Applicant’s eligibility for a security clearance is granted. The Defense Office of Hearings and Appeals (DOHA) issued to Applicant a Statement of Reasons (SOR) detailing the security concerns under Guidelines B.1 The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective within the Department of Defense for SORs issued after September 1, 2006. Applicant answered the SOR in writing on January 15, 2010, and requested a hearing before an administrative judge. The case was assigned to me on March 15, 2010. DOHA issued a Notice of Hearing on March 23, 2010. The hearing was 1 1 The SOR was undated. 2 scheduled for April 14, 2010. Due to an error on the SOR, the hearing was rescheduled. On April 20, 2010, DOHA issued a Notice of Hearing, and on May 5, 2010, the hearing was conducted as rescheduled. The Government offered Exhibits (GE) 1 and 2. Applicant did not object and they were admitted. Applicant and two witnesses testified on his behalf. He offered Exhibits (AE) A through G, which were admitted without objection. DOHA received the hearing transcript (Tr.) on May 11, 2010. Administrative Notice The Government requested administrative notice be taken on exhibits marked as Hearing Exhibit (HE) I through XVII, which was granted. I have considered for administrative notice purposes the source documents provided as hearing exhibits. HE XVII is the Government’s Administrative Notice Brief, which I will consider only for persuasive purposes. I have also carefully considered for administrative notice purposes only those source documents that pertain to the factual specifics of the country from the Government sources and other credible sources. I have not considered any editorial or extrapolated comments or conclusions from unofficial sources. Findings of Fact Applicant admitted all of the allegations in the SOR except ¶ 1.j. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact. Applicant is 42 years old. He was born in the United States to American parents. He earned a bachelor’s degree in East Asian studies and a master’s degree in teaching English as a second language. He has worked for his present employer, a federal contractor, since October 2005. He is unmarried and has no children. Applicant has never held a security clearance. He is an East Asian linguist who is fluent in Chinese, Japanese, and other dialects.2 Applicant studies languages and has a continued interest in learning about East Asian cultures. He is fluent in Japanese and taught English for approximately seven years in Japan, from 1990 to 1997. He is also a student of the Chinese language. In approximately September 2001 to July 2002, he was employed as a teacher at University A in the People’s Republic of China (China). He found the job through the internet and was employed directly by the university. University A is located in a remote city in China. Part of his compensation included room and board, including an apartment provided by the university. Applicant’s purpose for teaching in China was to improve his Chinese language skills. He explained that in China every high school and college has a person assigned whose responsibility is to “keep tabs on foreigners” and also to control the students in the class. For purposes of the hearing he referred to this person using an American term, the “Foreign Affairs Officer (FAO).” The FAO is also concerned about foreigners attempting to influence and persuade students on political 2 Tr. 26, 37-40. 3 issues. The foreign teachers are advised not to discuss certain issues, such as China’s relations with Taiwan. Applicant was aware that the FAO was monitoring him, but he was not being targeted for information from a national security position. After completion of his teaching contract in July 2002, Applicant returned to the United States to visit his family.3 In August 2002, Applicant accepted a new teaching assignment at University B, in China. He taught both English and Japanese at this school. He did not complete his contract because in March 2003, he returned to the United States due to a medical condition. He remained in the United States from March 2003 until September 2003. He worked as a substitute teacher while in the United States. He explained that despite his medical condition, he was determined to learn Chinese, so he returned to China. His primary goal was to learn the language. He was aware that China was going to be an important country to the United States and internationally in the future. He felt that his marketability for career enhancement would increase if he could learn Chinese. He returned to China in September 2003 and worked at University C, until his return to the United States in January 2005. He continued to study the Chinese language and culture while there.4 Applicant credibly testified that once he left the three Universities he had no further contact with the institutions. He explained that he is a serious student of the East Asian culture and his interest is in the Chinese culture and language, and not the politics of the government. He provided AE B, C and D to show how the Chinese government bears responsibility for the destruction and deterioration of the Chinese culture. The articles also detail the corrupt nature of the Chinese government.5 He explained that he did not want to tangle with the Chinese government. He was aware that it was corrupt but his purpose for returning to China was to achieve his own goal to become fluent in the language and have a deeper understanding of the culture. His teaching efforts were to help students, not the government.6 Applicant formed some relationships with his students while teaching in China. He would assist some outside of the classroom by sending them English books. He maintained some contact with students after moving to a different school. Usually the contact was by email. The contacts faded over time.7 Applicant had a romantic interest with a student. He consulted the dean of the university and was told to wait until the student graduated and then he could pursue his romantic interests. He left the university and they visited each other once in 2002 or 3 Tr. 26, 47-52. 4 Tr. 52-70. 5 AE B, C, D at page 20. 6 AE A, B, C; Tr. 70-76. 7 Tr. 79-80. 4 2003, while he was in China. He had one telephone contact with her in 2004 and has had no other contact since then. He had another romantic interest outside of school. He dated the person for about three months in 2004. He has had no contact with her since then. During his teaching experience from 2001 through 2005, he never had any student contact him requesting money, information, or anything of a questionable nature. The students did not ask him about his political philosophy, nor did anyone at the universities where he was employed.8 SOR ¶ 1.d alleged Applicant’s five former tutors were citizens and residents of China and one was affiliated with the Chinese Communist Party. In September 2006 through December 2006, Applicant’s present employer allowed him to take a sabbatical, so he could return to China to hone his Chinese language skills. To do so he hired tutors to be conversation partners with him. Applicant’s medical problem involves his jaw and he can not speak for long periods of time, so to accommodate his problem he developed a learning style. He would listen to them and they would teach him vocabulary. He was attempting to improve his skills in two different Chinese dialects, one of which is very complicated. The sabbatical was unpaid, but supported by the company. During this time, Applicant immersed himself in the Chinese language and culture. He explained that language is learned by listening. He was tutored by two people at a time, for two-hour periods of time, two to three times a week. His relationship with the tutors was strictly professional. He found the people through a college and also by posting an advertisement. He had a student visa while in China. He has maintained some minimal contact with the tutors. One tutor told Applicant she was a member of the Communist Party. She did not want contact with Applicant because of the implication it may present to her status in the Communist Party. She was one of the few who could teach the complicated dialect Applicant was attempting to learn. Their contact was only professional. Applicant’s last contact with her was in 2007, when they exchanged emails. Applicant had asked her to record lessons for him and send them to him via the internet. This was part of his continuing education to learn the language. She recorded the lessons and was paid for her services. Applicant has had some email contact with the other tutors, usually short social emails, and some computer “chat” contact. He became interested in one tutor romantically in 2007. They corresponded over the internet from January 2007 to May 2007, when the relationship ended. Their only contact during this time was through the internet. They occasionally will have email contact.9 Applicant explained that if anyone ever asks him what his profession is, he tells them that he is a translator and an educational researcher.10 8 Tr. 80-85, 92. 9 Tr. 101-130, 144-145. 10 Tr. 130. 5 SOR ¶ 1.e alleged Applicant has a friend who is a citizen and resident of China. Applicant admitted that when he studied in China in 2006, he met a waitress. They were attracted to each other, but he has not seen her since December 2006. They last emailed each other in 2009. If she emails him he will likely respond. He met her once socially outside of the campus. She was also a student. He never discussed his job.11 SOR ¶ 1.f alleged five former students of Applicant are citizens and residents of China and two of them are employed by the Chinese government. He has not had contact with them since 2008 or 2009. They are all students he met when he was a teacher from 2001 to 2005. He taught them for either one or two semesters. He listed them on his security clearance application (SCA) because he had kept in contact with them. The contact he had was by email, internet chats, and an occasional phone call. He described them as good students with whom he got along. He believed two of the students worked for the government of China. One was a teacher, and because all schools are controlled by the government, he assumed she was employed by the Chinese government. Another student had a job as a water meter reader, which he assumed was also government controlled. Their employment came up through normal social conversation, so he disclosed it on his SCA. He last saw the students in 2005.12 Applicant’s contact with Chinese citizens was part of his education process to become fluent in the language and different dialects. He explained that social contact was a valuable learning tool. His contact with Chinese citizens was never work related. SOR ¶ 1.g alleged Applicant had contact with two former coworkers who are citizens and residents of China. These coworkers were both teachers and he had both a professional and personal relationship with them when he worked there from 2003 to 2005. He has had infrequent email contact with them in 2009 and 2010. Occasionally he might be on a computer “chat” site and will have contact with them.13 SOR ¶ 1.h alleged Applicant has a friend and former coworker who is a citizen of the United Kingdom (UK) and resides in China. Applicant met his friend at University A, where they both taught English. Both being westerners, they became friends and have maintained their friendship. His friend helped Applicant get the job at University C. They talk to each other four to five times a year and maintain contact. His friend is married to a Chinese citizen. Applicant stated that he seriously doubts she is a member of the Communist Party because it would be unorthodox for a member to marry someone with western ties. Applicant does not know if they have children, but is aware that his friend has family in the UK.14 11 Tr. 131-137. AE A at page 5 is an exhaustive document prepared by Applicant that lists all of his Chinese contacts, when he last had contact with them, and the type of contact. 12 Tr. 137-142. 13 Tr. 146-147. 14 Tr. 93, 149-153. 6 SOR ¶ 1.i alleged Applicant has another friend who is a citizen of China and resides in the United States. Applicant met this friend in 2002, at a swimming pool. The friend was going to school. He obtained a scholarship to attend medical school at an American university. Applicant believes he will be completing his medical degree soon. He has been in the United States for four to five years. Applicant stated that when they were in China, his friend intended on returning to practice medicine there. The friend now intends on remaining in the United States and has accepted a job here. Applicant and his friend talk on the phone two to three times a year and have talked about meeting sometime this year.15 SOR ¶ 1.j alleges that Applicant’s two current tutors are citizens of China and reside in the United States. At the time Applicant completed the SCA these people were his tutors. They are no longer his tutors. He advertised for tutorial services on the internet. One tutor was a student at a local American university, where she was studying teaching Chinese as a second language. She was Applicant’s tutor for eight to nine months. They would meet one or twice a weekend for about three hours. She taught traditional Chinese. She was in the United States on a student visa. When their contract ended, he ceased to have contact with her and he does not know her whereabouts.16 When the contract with his first tutor expired, Applicant hired another tutor. She was attending an American university and studying to teach Chinese as a second language. She tutored him for approximately eight months. He had contact with this tutor about once a week for three-hour sessions. He has had no contact with her since sometime in 2009, except for one phone call when he called her to wish her a happy Chinese New Year. His contact with both tutors was always at the school and there was no social relationship. Applicant stated he and his family are loyal Americans. He does not have divided loyalties. Members of his family have served in the military and deployed overseas. Two are affiliated with the United States intelligence community. He is close with his family in the United States. He has no family in China and does not have close personal contact with any Chinese citizens. He has no financial interest in China. All of his financial assets are in the United States. He has had no contact with the universities in China where he was previously employed.17 When asked by Department Counsel what Applicant would do if he were approached by someone soliciting classified information, Applicant provided an actual situation that occurred in 2007. While sitting at a book store café Applicant was reading Chinese related material. A woman at the café noticed and began a conversation with him. They decided to have dinner together. In the normal course of the conversation, 15 Tr.95 98, 153-157. 16 Tr. 157-166. 17 Tr. 99, 167-169, 171-173. 7 the woman asked Applicant if he had a security clearance. Applicant believed that she was Chinese. He thought her question was unusual. Although he did not have a security clearance, Applicant reported the activity to the security manager of his company. He has had no contact with the woman since then. Applicant has never sponsored anyone for immigration to the United States.18 Applicant’s coworker and friend testified on his behalf. He knows Applicant both professionally and socially. He has known Applicant since 2005. Both work as Chinese linguists. The coworker holds a Top Secret security clearance. He believes Applicant’s unique language skills would be beneficial to national security. He explained that Applicant is very conscientious in protecting sensitive matters and believes he would avoid any security risks. They worked on a joint project for three months where they were Chinese translators. He considered Applicant’s work product to be superior. He explained that with Applicant’s unique language skills he is qualified for the type of work the company does. One must be mentally tough and mature. He does not believe Applicant will put himself in a compromising position.19 Applicant’s supervisor testified on his behalf. He has known Applicant since October 2005. He strongly supports Applicant’s application for a security clearance. He believes Applicant is an honest and loyal American. Applicant is extremely careful when it comes to security and goes beyond what is normally required of him. He is a good worker.20 Applicant has not had contact with the schools in China where he taught. He has had infrequent short emails or chats with people from China. He does not have any strong personal relationships with people he knows from China. He has not traveled to China since he left in 2006. Applicant provided copies of emails and chat room conversations, and their translations. He also offered various documents about China and his performance appraisals. He is consistently graded as “Distinguished” which is the highest grade. His most recent performance appraisal described him as a team player who can always be relied on. Specifically it stated: “he is an accomplished linguist who has built a strong reputation with our customer as a detail oriented researcher.”21 I have considered all of the documents provided by Applicant. 18 Tr. 174-182. 19 Tr. 183-190. 20 Tr. 193-198. 21 AE G. 8 People’s Republic of China22 China is a large and economically powerful country, with a population of over a billion people and an economy growing at about 10% per year. China has an authoritarian government, dominated by the Chinese Communist Party. China has a poor record with respect to human rights, suppresses political dissent, and its practices include arbitrary arrest and detention, forced confessions, torture, and mistreatment of prisoners. China is one of the most aggressive countries in targeting sensitive and protected U.S. technology, and economic intelligence. It has targeted the U.S. with active intelligence gathering programs, both legal and illegal. In China, authorities have monitored telephone conversations, facsimile transmissions, e-mail, text messaging, and internet communications. Authorities opened and censored mail. The security services routinely monitored and entered residences and offices to gain access to computers, telephones, and fax machines. All major hotels had a sizable internal security presence, and hotel guestrooms were sometimes bugged and searched for sensitive or proprietary materials. Policies When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful in evaluating an applicant’s eligibility for access to classified information. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial and commonsense decision. According to AG ¶ 2(c), the entire process is a conscientious scrutiny of a number of variables known as the “whole-person concept.” The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision. The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture. 22 HE I through XVII. 9 Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel and has the ultimate burden of persuasion as to obtaining a favorable security decision.” A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information. Section 7 of Executive Order 10865 provides that decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information). Analysis Guideline B, Foreign Influence AG ¶ 6 expresses the security concern regarding foreign influence: Foreign contacts and interests may be a security concern if the individual has divided loyalties or foreign financial interests, may be manipulated or induced to help a foreign person, group, organization, or government in a way that is not in U.S. interests, or is vulnerable to pressure or coercion by any foreign interest. Adjudication under this Guideline can and should consider the identity of the foreign country in which the foreign contact or financial interest is located, including, but not limited to, such considerations as whether the foreign country is known to target United States citizens to obtain protected information and/or is associated with a risk of terrorism. AG ¶ 7 describes conditions that could raise a security concern and may be disqualifying. I have considered all of the disqualifying conditions and especially the following: (a) contact with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion; and 10 (b) connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual’s obligation to protect sensitive information or technology and the individual’s desire to help a foreign person, group, or country by providing that information. China has an authoritarian government, dominated by the Communist Party, with a poor human rights record, and targets the U.S. for espionage. Applicant has had contact with Chinese citizens while living in China and in the United States. His contact has included students, tutors, friends, and professional associates. Some of his contacts have included people who work for the Chinese government and at least one was affiliated with the Chinese Communist Party. The nature of a nation’s government, its relationship with the U.S., and its human rights record are relevant in assessing the likelihood that an applicant’s contacts are vulnerable to government coercion. The risk of coercion, persuasion, or duress is significantly greater if the foreign country has an authoritarian government, a contact is associated with or dependent upon the foreign government, or the country is known to conduct intelligence operations against the U.S. Applicant’s foreign connections marginally create a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion. AG ¶¶ 7(a) and 7(b) have been raised by the evidence. Guideline B is not limited to countries hostile to the United States. “The United States has a compelling interest in safeguarding classified information from any person, organization, or country that is not authorized to have access to it, regardless of whether that person, organization, or country has interests inimical to those of the United States.”23 Furthermore, friendly nations can have profound disagreements with the United States over matters they view as important to their vital interests or national security. Finally, we know friendly nations have engaged in espionage against the United States, especially in the economic, scientific, and technical fields.24 I have analyzed all of the facts and considered all of the mitigating conditions for this security concern under AG ¶ 8, including the following: (a) the nature of the relationship with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization and interests of the U.S.; (b) there is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the U.S., that the individual can be expected to resolve any conflict of interests in favor of the U.S. interests; and 23 ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2005). 24 See ISCR Case No. 00-0317, 2002 DOHA LEXIS 83 at **15-16 (App. Bd. Mar. 29, 2002). 11 (c) contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation. Applicant is a devoted student to the East Asian culture and the Chinese language. He began his studies in college and continued to increase his knowledge and understanding by immersing himself in the culture. He is dedicated to being proficient and fluent in different Chinese dialects. He is astute in recognizing the value of increased career opportunities and marketability because of his unique and sought after expertise. As part of his educational process he spent time in China to learn and refine his language skills and become familiar with the culture, which is also part of the learning process. While there he had both personal and professional contact with Chinese citizens. He has maintained some contact through email and an occasional phone call, but has no personal relationship with most of the people alleged in the SOR. He does have occasional contact with a Chinese medical student that lives in the United States and intends on remaining here. His contact with his tutors, both in China and the United States, has been for professional reasons. On a couple of occasions, his professional contacts became more social, but over the years, the contacts have tapered off or no longer exist. He had contact with one tutor who was a member of the Communist Party. As he explained, it was frowned upon for her to socialize with westerners. Two contacts were likely Chinese government employees. Applicant also had a British friend in China whose wife was Chinese. They socialized and remain friends. Applicant has not been to China since 2006. Applicant’s has cultivated his expertise in the Chinese language and culture for career development. The nature of his relationship with the Chinese citizens included on the SOR was mostly professional and occasionally personal. He no longer has contact with most of them, and those that he does, it is through email or phone calls. His contact either no longer exists or is so minimal and slight that it is highly unlikely he will be placed in a position of having to choose between these people and the United States. Applicant’s loyalty to the United States is unquestionable. There is no conflict of interest. Applicant does not feel a sense of loyalty or commitment to the acquaintances he had while living in China, or since then. Even if certain contacts could be characterized as “friends” there is no evidence he feels a commitment to them that would outweigh his deep, longstanding, and unquestionable loyalty to the United States. Even if there was a conflict of interest, it is clear that Applicant would resolve it in favor of the United States. Applicant’s contacts with Chinese citizens in China and in the United States are so vague and infrequent, that they barely rise to the level of him having a “casual” contact or communication. However, even if it did rise to that level there is little likelihood that it could create a risk of foreign influence or exploitation. Therefore, after analyzing all of the facts, I find AG ¶¶ 8(a), 8(b), and 8(c) apply. 12 Whole-Person Concept Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all the circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a): (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence. Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I have incorporated my comments under Guideline B in my whole-person analysis. Some of the factors in AG ¶ 2 were addressed under that guideline, but some warrant additional comment. Applicant has devoted his professional life to learning about East Asian cultures and the Chinese language. To become an expert in the area, he studied in China, honing his skills. Part of the process is being immersed in the language, which means he obviously must have contact with Chinese people. Most of his contacts were professional, but occasionally he would become friends or even romantically involved. Most of those contacts while he was in China do not exist any longer. He has maintained some email contacts and an occasional phone call with some of his acquaintances, but none of these, except perhaps two, rise to the level of friendship. Those two are his British friend living in China, and the friend who is a medical student, living in the United States. Even these contacts would not rise to the level that would cause Applicant to be placed in a position of having to choose between his loyalty to the United States and his friends. There is no question that his sense of loyalty to the United States is deep and longstanding. Applicant is keenly aware of the responsibilities and obligations associated with having a security clearance. Although he did not have a security clearance at the time, he exercised incredible security awareness and mature judgment when he reported to his security manager, a conversation he had with a Chinese woman, who inquired if he held a security clearance. Applicant’s foreign contacts do not pose a security risk. The evidence leaves me with no questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant has successfully mitigated the security concerns arising under the guideline for Foreign Influence. 13 Formal Findings Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1, Guideline B: FOR APPLICANT Subparagraphs 1.a-1.j: For Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is clearly consistent with national interests to grant Applicant a security clearance. Eligibility for access to classified information is granted. _____________________________ Carol G. Ricciardello Administrative Judge