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ISCR Case 19-02119.a1 — CASE

ISCR Case 19-02119.a1unknown

Case Headnote

ISCR Case No. 19-02119.a1

Sep 9, 2020· Hon. Michael Y. Ra'anan· appeal

Summary

This security clearance case, initiated by a Department of Defense Statement of Reasons on August 14, 2019, involved an applicant representing himself under Guideline F (Financial Considerations). The applicant's appeal centered on the assertion that the judge had not fully considered all submitted evidence, specifically concerning tax documentation.

The appeal board did not issue a final clearance decision. Instead, it remanded the case for further proceedings. The purpose of this remand is to determine whether the applicant submitted a FORM Response prior to the initial presentation of the case.

Procedural Posture

SOR issuedAug 14, 2019
Answer filed—
Hearing held—
Decision dateSep 9, 2020

Cite For

Remand for Further Proceedings Regarding Evidence Submission Under Guideline F
Consideration of Due Process in Security Clearance Appeals
The Necessity of Allowing Objections to FORM Responses Before a Decision Is Made

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 Applicant argued that not all evidence was presented to the Judge. The Board remanded the case for further proceedings to determine if a FORM Response was submitted prior to the Judge's decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEric H. Borgstrom — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant argued that the Judge was not presented with all the evidence.

Why the Board ruled this way

The Board concluded that the best solution is to remand the case to determine if the Applicant submitted a FORM Response before the case was presented to the Judge, allowing for Department Counsel to object and for the Judge to rule on any objections.

On remand, the judge must

The Judge is instructed to reopen the record and determine whether Applicant submitted a FORM Response before the case was submitted to him, and provide Department Counsel an opportunity to object to the submission and rule on any objections.

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: Given these circumstances, we conclude the best solution is to remand the case. The Judge is instructed to reopen the record and, working with the parties, determine whether Applicant submitted a FORM Response before the case was submitted to him. If Applicant made such an submission, the Judge should provide Department Counsel an opportunity to object to the submission and then rule on any objections. The Judge should issue a new decision in accordance with Directive ¶ E3.1.35. The Decision is Remanded. CASE NO: 19-02119.a1 DATE: 09/09/20

DATE: September 9, 2020 ) In Re: ) ) ------------------------- ) ISCR Case No. 19-02119 ) ) Applicant for Security Clearance ) )

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Julie R. Mendez, Esq., Deputy Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On August 14, 2019, 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 decision on the written record. On June 15, 2020, after considering the record, Administrative Judge Eric H. Borgstrom denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant’s appeal brief contains matters from outside the record, which we are generally precluded from considering. Directive ¶ E3.1.29. However, we have previously considered new evidence when examining threshold issues, such as due process or jurisdiction. See, e.g., ISCR Case No. 14-00812 at 2 (App. Bd. Jul. 8, 2015). On December 11, 2019, Department Counsel sent Applicant a copy of the File of Relevant Material (FORM). On December 19, 2019, Applicant signed a document acknowledging receipt of the FORM. He was given 30 days from its receipt to submit additional matters to a specified individual at DOHA. His response was due on January 18, 2020. On April 15, 2020, a DOHA memorandum was issued requesting the assignment of a Judge to the case. The memorandum notes that Applicant did not submit a response to the FORM within the allotted time period and that the case file is now complete and ready for consideration. In his brief, Applicant states: My only argument about the ruling is I do not believe the Judge was presented with all the evidence that was provided to [the name of the adjudicator who issued the SOR]. I talked to her on the phone on 30 Jan 2020 about my case, and during the conversation I explained to her that my 2017 taxes were already filed, and I would send her the supporting document proving that, which I did by email on 30 Jan 2020. [Appeal Brief at 2.] The documents attached to Applicant’s appeal brief predate his purported submission to the adjudicator. He also indicated the adjudicator never responded to his email, and he interpreted the lack of response to mean she did not require any further supporting documentation. Based on the above, it appears Applicant may have submitted to the adjudicator an untimely response to the FORM before the case was presented to the Judge for consideration. If so, Department Counsel and the Judge should have been provided Applicant’s FORM response. Department Counsel should then have had an opportunity to object, in whole or in part, to Applicant’s FORM Response, and the Judge should have had an opportunity to rule on any objections. If such events had occurred, it is possible that Applicant’s FORM response may have been considered by the Judge in rendering his decision. Given these circumstances, we conclude the best solution is to remand the case. The Judge is instructed to reopen the record and, working with the parties, determine whether Applicant submitted a FORM Response before the case was submitted to him. If Applicant made such an submission, the Judge should provide Department Counsel an opportunity to object to the submission and then rule on any objections. The Judge should issue a new decision in accordance with Directive ¶ E3.1.35.

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