A decided public DOHA case, shown for research, not advice or a prediction.
ISCR Case No. 20-01759.a1
Appeal BoardDecided Oct 21, 2021 · Administrative Judge Michael Y. Ra'anan · Appeal
Case headnote
Summary
The applicant, represented by Christopher Macchiaroli, faced security clearance issues under Guideline F due to nine delinquent debts totaling approximately $55,000. The appeal board remanded the case for due process violations regarding the submission of evidence, allowing the applicant to reopen the record and submit additional documentation.
Why the applicant was denied
- The applicant admitted to having nine delinquent debts totaling approximately $55,000.
- The judge found against the applicant on each SOR allegation due to lack of documentation showing progress in resolving the debts.
Conditions referenced
Disqualifying
- AG ¶ 20 Financial Considerationsraised
Key rule quoted
“We may consider new evidence insofar as it bears upon a question of due process.”
Procedural posture
- SOR issued
- 2020-11-04
- Answer filed
- Hearing held
- 2021-06-07
- Decision date
- 2021-10-21 Appeal remanded due to due process issues.
Cite for
- Due Process Violations in Evidence Submission
- Remand for Reopening of Record
- Consideration of New Evidence Related to Due Process
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
The appeal involved a denial of security clearance based on financial considerations. The Applicant argued that he had submitted a timely response to the FORM, which was not considered. The Board remanded the case to allow the Applicant to submit his response and any supporting documents, addressing the due process issue raised in the appeal.
Descriptive structured reading of this decided, public Appeal Board decision: what the case says, not a prediction or advice.
Full decision
Open original PDFThe complete official text, footnotes and signatures included, is in the original PDF.
Decision text, by section
Appearances
_______________________________________________
Appeal Board Decision
DEPARTMENT OF DEFENSE DEFENSE LEGAL SERVICES AGENCY DEFENSE OFFICE OF HEARINGS AND APPEALS APPEAL BOARD POST OFFICE BOX 3656 ARLINGTON, VIRGINIA 22203 (703) 696-4759 KEYWORD: Guideline F DIGEST: Applicant’s appeal brief raises a due process issue. His brief contains a declaration signed by him that asserts he emailed a response to the FORM before the deadline and contains copies of documents that he claims were submitted with that response. In this regard, the Appeal Board is generally prohibited from considering new evidence. Directive ¶ E3.1.29. However, we may consider new evidence insofar as it bears upon a question of due process. Decision is Remanded. CASE NO. 20-01759.a1 DATE: 10/21/2021 Date: October 21, 2021 ) In the matter of: )
)
)
------------------------ )
ISCR Case No. 20-01759
)
) Applicant for Security Clearance ) _______________________________________)
Appearances
FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Christopher Macchiaroli
The Department of Defense (DoD) declined to grant Applicant a security clearance. On November 4, 2020, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision―security concerns raised under Guideline F (Financial Considerations) of DoD Directive 5220.6 (January 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On June 7, 2021, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Darlene D. Lokey Anderson denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. For reasons stated below, we remand the decision. The SOR alleged that Applicant had nine delinquent debts totaling about $55,000. In responding to the SOR, Applicant admitted the delinquent accounts. The Judge noted that Applicant did not submit a response to Department Counsel’s File of Relevant Material (FORM). The Judge found against Applicant on each SOR allegation, noting he failed to present documentation of a payment history that showed progress in resolving the debts. Applicant’s appeal brief raises a due process issue. His brief contains a declaration signed by him that asserts he emailed a response to the FORM before the deadline and contains copies of documents that he claims were submitted with that response. In this regard, the Appeal Board is generally prohibited from considering new evidence. Directive ¶ E3.1.29. However, we may consider new evidence insofar as it bears upon a question of due process. See, e.g., ISCR Case No. 17-01472 at 2 (App. Bd. Aug. 6, 2018). We note that Applicant’s FORM response was apparently sent to the wrong address. The cover letter forwarding the FORM to Applicant indicated that his response should be sent to a DOHA Legal Assistant. Contrary to that guidance, he emailed his response to an address at the Consolidated Adjudications Facility (CAF) of the Defense Counterintelligence and Security Agency (DCSA). Although Applicant did not comply with the directions provided in the cover letter, we conclude the best course of action is to remand the case to the Judge to reopen the record to provide Applicant an opportunity to submit the FORM response he sent to the DCSA CAF. As provided in Directive ¶ E3.1.35, the Judge shall, upon remand, issue a new decision in the case. The Board retains no continuing jurisdiction over a remanded decision. However, a decision issued after remand may be appealed pursuant to Directive ¶¶ E3.1.28. through E3.1.35. Applicant’s brief contains other assignments of error that are not ripe for our consideration at this time.
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