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ISCR 17-03083.a1: Guideline E security clearance appeal (2020) · CASE

ISCR Case 17-03083.a1unknown

Case headnote

ISCR Case No. 17-03083.a1

Jan 24, 2020· Hon. Michael Y. Ra'anan· appeal

Summary

This security clearance case involved an applicant representing himself, facing concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The appeal board did not issue a final decision on the merits of the case.

Instead, the board remanded the case for a reassessment of jurisdiction. This reassessment was necessary to determine if the applicant's need for a security clearance might have terminated prior to the hearing.

The favorable findings made under Guideline F were not challenged during the appeal process. The ultimate outcome of the security clearance decision was none, as the case was returned for further jurisdictional review.

Key rule quoted

“Directive ¶ 4.4 provides that security clearance adjudications 'shall cease upon termination of the applicant’s need for access to classified information,' with exceptions not pertinent to this case.”

Procedural posture

SOR issuedDec 21, 2017
Answer filed—
Hearing heldOct 29, 2019
Decision dateJan 24, 2020Remanded for jurisdiction reassessment.

Cite for

Jurisdictional Issues Regarding Security Clearance Need Under Guideline E
Remand Procedures for Reassessing Jurisdiction in Security Clearance Cases
Favorable Findings Under Guideline F Not Contested on Appeal

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 decision by the Administrative Judge granting the applicant a security clearance. The Department Counsel appealed the decision, and the Board identified a potential jurisdictional issue regarding the applicant's need for the clearance. The Board remanded the case for further proceedings to address this issue.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowPhilip J. Katauskas granted the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline F

What the Board reviewed

Legal error, raised by board sua sponteNot reached
The Board identified a potential issue regarding the jurisdiction of the Administrative Judge to issue a decision due to the applicant's need for an industrial security clearance.

Why the Board ruled this way

The Board remanded the case to determine whether the Administrative Judge had jurisdiction to issue his decision, as there was a potential issue regarding the applicant's need for an industrial security clearance.

Lack of jurisdiction

On remand, the judge must

The Judge shall determine whether he had jurisdiction to issue his decision and may reopen the record to permit the parties to offer evidence and arguments on the jurisdictional issue.

Standard of review applied

No de-novo re-decisionNo new evidence on appealProcedural 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: Directive ¶ 4.4 provides that security clearance adjudications “shall cease upon termination of the applicant’s need for access to classified information,” with exceptions not pertinent to this case. Neither party raised the issue of jurisdiction on appeal. Lack of subject matter jurisdiction can be raised at any time in the proceedings, including sua sponte by the Appeal Board. In this case, it appears there is an issue as to whether Applicant’s need for an industrial security clearance terminated prior to the date of his security clearance hearing. The favorable decision is remanded. CASE NO: 17-03083.a1 DATE: 01/24/2020

DATE: January 24, 2020 ) In Re: ) ) --------------------- ) ISCR Case No. 17-03083 ) ) Applicant for Security Clearance ) )

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Andrea Corrales, Esq., Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) Consolidated Adjudications Facility (CAF) declined to grant Applicant a security clearance. On December 21, 2017, DoD CAF issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline E (Personal Conduct) and Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On October 29, 2019, after the hearing, Administrative Judge Philip J. Katauskas granted Applicant’s request for a security clearance. Department Counsel appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. For reasons stated below, the Judge’s decision is remanded. The Judge’s favorable findings under Guideline F were not raised as an issue on appeal. At issue is the Judge’s favorable finding under Guideline E that alleged Applicant’s employment with a defense contractor was terminated in December 2015 “because [he] gave the company false and/or misleading information to obtain and continue leave under the Family Medical Leave Act (FMLA).” At the hearing, Applicant stated that he was currently working for a military agency, that he has held that position since December 2016, and that he has been granted a Top Secret security clearance since 1999. He also stated that a Federal contractor was sponsoring him for an employment position, but he did not intend to accept that position if he retained his security clearance. Tr. at 17-18. Directive ¶ 4.4 provides that security clearance adjudications “shall cease upon termination of the applicant’s need for access to classified information,” with exceptions not pertinent to this case. Neither party raised the issue of jurisdiction on appeal. Lack of subject matter jurisdiction can be raised at any time in the proceedings, including sua sponte by the Appeal Board. See, e.g., ISCR Case No. 02-24227 at 4 (App. Bd. Oct. 7, 2003). In this case, it appears there is an issue as to whether Applicant’s need for an industrial security clearance terminated prior to the date of his security clearance hearing. Given these circumstances, we conclude that best course of action is to remand the case to the Judge to determine whether he had jurisdiction to issue his decision. The Judge may reopen the record to permit the parties the opportunity to offer evidence and arguments on the above jurisdictional issue. If the Judge in consultation with the parties determines that he lacked jurisdiction to issue the decision, he shall vacate that prior decision and indicate it is null and void and has no legal effect. See, e.g., ISCR Case No. 05-04831 at 5 (App. Bd. Nov. 29, 2006) and ISCR Case No. 08-08860 at 2 (App. Bd. Apr. 2, 2010).

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