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ISCR Case 17-03627.a1 — CASE

ISCR Case 17-03627.a1unknown

Case Headnote

ISCR Case No. 17-03627.a1

unknownApr 1, 2019· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves an applicant, represented by counsel, who contested a security clearance decision under Guideline F (Financial Considerations), specifically regarding a $30,000 Federal tax lien. The initial decision raised concerns under Disqualifying Condition F.1.

However, the appeal board determined that the judge erred by citing an unadmitted document as support for the adverse finding. This procedural error led to the case being remanded.

The purpose of the remand is to clarify the evidentiary status of the document in question and to allow for a new decision to be made based on properly admitted evidence. Consequently, no final outcome regarding the applicant's security clearance has been reached at this stage.

Why the Applicant Was Denied

The judge cited an unadmitted document in making findings of security concern.

Conditions Referenced

Disqualifying

F.1raisedFailure to Meet Financial Obligations

Key Rule Quoted

“The Directive does not address the conversion of a FORM proceeding into a hearing and provides no guidance how to treat a partial or full written record that was created before the hearing conversion.”

Procedural Posture

SOR issuedNov 27, 2017
Answer filed—
Hearing heldDec 26, 2018
Decision dateApr 1, 2019

Cite For

Remand Due to Evidentiary Error Under Guideline F
Importance of Document Admission in Trustworthiness Cases
Clarification of Evidentiary Status in Security Clearance Proceedings

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

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 cited to Applicant’s earlier Response to the FORM in support of his findings about this debt. Applicant contends that the Judge’s citation to the Response was an error because the Response was never admitted into evidence. We find this argument to be persuasive. At the hearing, Department Counsel offered Applicant’s security clearance application, interview summary, and credit reports, which the Judge admitted. Applicant offered two letters, which the Judge admitted. Neither party offered the Response, although it is located in the case file. Adverse decision remanded. CASENO: 17-03627.a1 DATE: 04/01/2019 DATE: April 1, 2019 In Re: ------------------------

Applicant for Public Trust Position ) ) ) ) ) ) ) ) ADP Case No. 17-03627

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Danel A. Dufresne, Esq. The Department of Defense (DoD) declined to grant Applicant a trustworthiness designation. On November 27, 2017, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–trustworthiness concerns raised under Guideline F of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. After receiving the File of Relevant Material (FORM) and submitting a response thereto, Applicant requested that the case be converted to a hearing. On December 26, 2018, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Richard A. Cefola denied Applicant’s request for a trustworthiness designation. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge’s findings of fact were supported by substantial evidence, whether the Judge based his decision on information not contained in the record, and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we remand the case to the Judge. The SOR alleged four delinquent debts. The one allegation that the Judge found adversely to Applicant pertained to a $30,000 Federal tax lien. The Judge cited to Applicant’s earlier Response to the FORM in support of his findings about this debt. Applicant contends that the Judge’s citation to the Response was an error because the Response was never admitted into evidence. We find this argument to be persuasive. At the hearing, Department Counsel offered Applicant’s security clearance application, interview summary, and credit reports, which the Judge admitted. Tr. at 8. Applicant offered two letters, which the Judge admitted. Tr. at 9. Neither party offered the Response, although it is located in the case file. Therefore, it was error for the Judge to have cited to the challenged document in making his findings of security concern.1 We conclude that the best resolution is to remand the case to the 1 Directive ¶ E3.1.7 provides that, if neither party requests a hearing, the case shall be assigned to a Judge “for a clearance decision based on the written record.” It further provides that Department Counsel shall provide the applicant with all relevant and material information that could be adduced at a hearing (generally referred to as the File of Relevant Material or FORM) and applicant shall have an opportunity to respond to it. The Directive envisions that the FORM and the applicant’s response will be part of the written record. Directive ¶ E3.1.8 also provides that, if either party requests a hearing, the Judge shall base the clearance decision on the “hearing record.” The Directive does not address the conversion of a FORM proceeding into a hearing and provides no guidance how to treat a partial or full written record that was created before the hearing conversion. Regarding this issue, we note a party’s FORM submission often contains arguments, which are not evidence. See, e.g., ISCR Case No. 14-03392 at 2, n.3 (App. Bd. Apr. 15, 2015). In the Reply Brief, Department Counsel acknowledges that “it would have been better practice to have admitted Applicant’s response into evidence.” Reply Brief at 8. We agree the better practice would have been for the Judge to have clarified the evidentiary status of that document at the hearing. Department Counsel also argues the previously submitted FORM (which presumably includes Applicant’s FORM response) was part of the record and the Judge had access to it. While the argument that the parties’ previous submissions pertaining to the SOR allegations are part of the evidentiary record and should have been considered by the Judge in rendering a decision is not an unreasonable interpretation of the Directive, Department Counsel’s handling of some FORM documents at the hearing undercuts that argument. At the hearing, Department Counsel offered documents from the FORM into evidence as Government Judge to give the parties a chance to offer the Response or object to its admission, as appropriate. The Judge will then issue a new decision consistent with the Directive. The other issues that Applicant has raised are not ripe for our consideration.

ORDER

The Decision 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 Exhibits 1-3. If those documents were already in the record and should have been considered by the Judge in rendering a decision, why would Department Counsel need to offer them again and seek to obtain a ruling from the Judge on their admissibility? Based on our review of the record, confusion exists whether Applicant’s FORM response was in the record for evidentiary purposes. As a matter of fairness, the Judge should have discussed this issue with the parties at the hearing, given them the option of offering or not offering the FORM response into evidence, and then proceeded accordingly.