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ISCR Case 17-03043.a2 — CASE

Case record

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

Decision Date6/11/2019
Statusunknown
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionsSee the appeal decision (Case 17-03043.a3) →See the hearing decision (Case 17-03043) →See the hearing decision (Case 17-03043) →See the appeal decision (Case 17-03043.a1) →See the hearing decision (Case 17-03043.h1) →
Participants
Applicant Representation: Pro Se
Judge: Michael Y. Ra'anan, James E. Moody, James F. Duffy
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline FFinancial Considerations · Unknown Outcome

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ISCR Case 17-03043.a2unknown

Case Headnote

ISCR Case No. 17-03043.a2

Jun 11, 2019· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves an applicant who, representing themselves, appealed the denial of a security clearance. The denial was based on financial considerations under Guideline F.

The appeal arose because the judge failed to issue a clearance decision after the case was initially remanded. This procedural error led to the case being remanded a second time for a new decision. The applicant's appeal specifically highlighted these procedural issues in the initial handling of their case.

Ultimately, no security clearance decision has been issued at this stage.

Key Rule Quoted

“The Judge erred by failing to issue a clearance decision on remand.”

Procedural Posture

Decision DateJun 11, 2019

Cite For

Remand for Failure to Issue a Clearance Decision
Procedural Errors in Security Clearance Cases
Self-representation in Appeals

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance· Full written decision

Remanded

The appeal involved a denial of a security clearance based on financial considerations. The Administrative Judge failed to issue a clearance decision on remand, prompting the Appeal Board to remand the case for proper issuance of a decision. The Board found that the Judge's actions did not comply with the required procedures outlined in the Directive.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMark Harvey — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
The Judge failed to issue a clearance decision on remand.

Why the Board ruled this way

The Judge erred by failing to issue a clearance decision on remand, which is required by the Directive. The case is remanded for the Judge to issue a new decision that complies with the necessary procedural requirements.

Missing findings

On remand, the judge must

The Judge must issue a new clearance decision in accordance with the Directive.

Standard of review applied

Harmful-error gatekeeperProcedural compliance

Appeal Board panel

Michael Ra’anan — Chair
James E. Moody
James F. Duffy

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

Full decision

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

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

SYNOPSIS

KEYWORD: Guideline F DIGEST: The Judge erred by failing to issue a clearance decision on remand. Case remanded. CASENO: 17-03043.a2 DATE: 06/11/2019 DATE: June 11, 2019 ) In Re: ) ) ----------------------- ) ISCR Case No. 17-03043 ) ) Applicant for Security Clearance ) )

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On January 16, 2018, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On November 27, 2018, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Mark Harvey denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28. and E3.1.30. At the hearing, the Judge read the contents of Applicant’s exhibits into the record and returned them to the Applicant. Those documents were not included in the record. In a prior decision on March 12, 2019, we concluded the Judge failed to preserve a complete record which impaired our ability to perform our review function. We remanded the case to the Judge “to identify the documents that Applicant desired him to consider and include these documents in the record.”

In an undated document entitled “Remand Order,” the Judge noted, at p. 2, that “The four documents are provided as directed by the Appeal Board.” He also stated, “The Appeal Board did not ask me to take any action beyond the collection of the four documents” and, at p. 1, “The decision denying Appellant’s access to classified information remains in effect, subject to the decision of the DOHA Appeal Board.” On April 4, 2019, the Hearing Office sent to Applicant the “Remand Order” with a cover letter that described the Judge’s product as an “unfavorable security clearance decision.” Applicant appealed the Judge’s Remand Order. We accepted Applicant’s Notice of Appeal. In retrospect, the Appeal Board erred in accepting the Notice of Appeal (NOA). Directive ¶ E3.1.28. provides that either party may appeal an Administrative Judge’s clearance decision. We have no authority to accept an appeal of a Remand Order. Instead of accepting the NOA, we should have referred the matter to the DOHA Director for appropriate corrective action.1 However, having accepted the NOA and permitted the parties to submit briefs, we are issuing this decision. The Judge erred by failing to issue a clearance decision. Directive ¶ E3.1.35. provides: Upon remand the case file shall be assigned to an Administrative Judge for correction of error(s) in accordance with the Appeal Board’s clearance decision. The assigned Administrative Judge shall make a new clearance decision in the case after correcting the error(s) identified by the Appeal Board. The Administrative Judge’s clearance decision after remand shall be provided to the parties. The clearance decision after remand may be appealed pursuant to items E3.1.28. and E3.1.35., above. [Emphasis added.] Additionally, the DOHA Director’s Memorandum, dated March 12, 2019, which returned the case to the Judge, stated that the case was remanded to him “to make a decision in accordance with the Directive.” The Judge was also required to comply with those requirements. Directive ¶ E3.1.25. provides that “The Administrative Judge shall make a written clearance decision in a timely manner setting forth pertinent findings of fact, policies, and conclusions as to the allegations in the SOR, and whether it is clearly consistent with the national interest to grant or continue a security clearance for the applicant.” The Judge’s Remand Order fails to meet those requirements of a clearance decision. Given the circumstances, we conclude that we must remand the case to the Judge for issuance of a new decision in accordance with the Directive.

ORDER

The case is REMANDED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board

FOOTNOTES

1 The Board does not have supervisory jurisdiction or authority over the conduct of Department Counsel or Hearing Office Administrative Judges. See, e.g., ISCR Case No. 02-04344 at 3 (App. Bd. Sep. 15, 2003).