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ISCR Case 20-02266 — CASE

ISCR Case 20-02266unknown

Case Headnote

ISCR Case No. 20-02266

Dec 21, 2022· Hon. Moira D. Modzelewski· appeal

Summary

This case involves an applicant representing himself in a security clearance decision under Guideline B (Foreign Influence), specifically concerning ties to Kosovo. The initial decision was influenced by evidence that the applicant was not made aware of during the proceedings.

The appeal board determined that the applicant was denied due process because this undisclosed evidence impacted the judge's decision. The board found that the applicant's inability to review and respond to this evidence impaired his ability to prepare an adequate defense.

Consequently, the case was remanded for further proceedings to address this procedural error. There was no final outcome regarding the security clearance itself at this stage, as the matter was sent back for reconsideration.

Conditions Referenced

Disqualifying

AG B1raisedForeign Influence

Key Rule Quoted

“An applicant enjoys the right to present evidence in mitigation. In order for an applicant to exercise this right effectively, he must have notice of the evidence to be asserted against him.”

Procedural Posture

SOR issuedJun 23, 2021
Answer filed—
Hearing heldOct 14, 2022
Decision dateDec 21, 2022Decision remanded for further proceedings.

Cite For

Due Process Rights in Security Clearance Cases
Requirements for Administrative Notice in Security Clearance Decisions
Impact of Incomplete Records on Security Clearance Adjudications

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 was filed by the Applicant after the denial of a security clearance based on Guideline B concerns. The Board found that the Administrative Judge's reliance on documents not provided to the Applicant constituted a due process violation, leading to a remand for further proceedings. The Board did not reach the merits of the appeal due to these procedural issues.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMatthew E. Malone — denied the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant challenged the Judge's conclusion regarding Guideline B security concerns.

Why the Board ruled this way

The Board found that the record was incomplete and that the Applicant was denied due process due to lack of notice regarding the documents used in the decision.

Incomplete recordLack of jurisdiction

On remand, the judge must

The Judge must identify the documents relied upon, provide them to Applicant and Department Counsel for inspection, and allow for objections before issuing a new decision.

Standard of review applied

Harmful-error gatekeeperProcedural compliance

Appeal Board panel

James F. Duffy — Chair
James E. Moody
Moira Modzelewski

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

APPEARANCES

___________________________________

) In the matter of: )

)

-----

)

ISCR Case No. 20-02266

)

) Applicant for Security Clearance ) _______________________________________) Date: December 21, 2022

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 June 23, 2021, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence) of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On October 14, 2022, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Matthew E. Malone denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. We construe Applicant’s brief as challenging the Judge’s conclusion that his circumstances raise Guideline B security concerns. In resolving this assignment of error we must address certain threshold issues on record completeness and the extent to which Applicant may have been denied the due process afforded by the Directive.

In its case in chief, the Government requested that the Judge take administrative notice of a U.S. Department of State document entitled U.S. Relations with Kosovo. Though acknowledging that terrorist activity occurs in Kosovo, the general tenor of the document is that Kosovo is a strong partner of the U.S., working closely with us to become a prosperous democracy and to maintain peace and regional security. Government Exhibit (GE) 4, Request for Administrative Notice. GE 4 contains no documents other than the State Department fact sheet. Though he granted the Government’s request, the Judge expressed some skepticism as to whether GE 4 included sufficient information to enable him to make a reasoned determination regarding heightened risk, a central criterion underlying Guideline B analysis. Tr. at 62-63. In the Decision, the Judge stated that he had considered the contents of GE 4 but that he required additional information about Kosovo. To that end, he cited to non-classified information available on websites maintained by the State Department and the Central Intelligence Agency. From these sources he made findings to the effect that human rights violations frequently occur in Kosovo and that government officials are often corrupt. He went on to find: Persistent ethnic strife, terrorist activities, an uneven human rights record, and other conditions on which the State Department has based its travel advisories for Kosovo, all support a finding that there is a heightened risk associated with having personal and financial ties there. Decision at 6 (emphasis added). The particular documents upon which the Judge based these findings are not included in the record. This raises two issues. First, as it stands the record is not complete. We have held in the past that merely citing to a website or URL is not sufficient to preserve an issue for appellate review. We “cannot consider in a vacuum, without reference to a properly developed record,” whether a Judge’s notice or treatment of pertinent documents is sustainable. ADP Case No. 14 01655 at 2 (App. Bd. Nov. 3, 2015). See also ISCR Case No. 00-0628 at 3-4 (App. Bd. Apr. 26, 2002). It is the Judge’s responsibility to ensure that the record is complete, and in this case it is not. This impairs our ability to address the applicability of Guideline B disqualifying conditions, in particular the issue of heightened risk. Secondly, there nothing to show that Applicant received copies of the documents in question before the record closed. While a Judge has authority to take administrative notice of appropriate matters sua sponte (see, e.g., ISCR Case No. 17-03026 at 4, n. 4 (App. Bd. Jan. 16, 2019)), an applicant enjoys the right to present evidence in mitigation. In order for an applicant to exercise this right effectively, he must have notice of the evidence to be asserted against him. For the Judge to have based the decision, even in part, on information of which Applicant was never made aware denied him of a reasonable opportunity to prepare for the hearing. That is, Applicant had no reason to know that the relatively harsh assessment of the political situation of Kosovo contained in the documents noticed sua sponte would be brought to bear on the adjudication of his case.1 Had the Judge made him aware of the documents he could possibly have sought additional

evidence or other administrative notice material that could have supported his effort to obtain a clearance. Under the facts of this case, Applicant was denied due process. Compare, ISCR Case No. 15-04472 at 3 (App. Bd. Feb. 9, 2017). Accordingly, we conclude that the best resolution of the issues before us is to remand the case to the Judge to identify the particular documents upon which he relied, provide them to Applicant and Department Counsel for inspection and for any objections they may have, and include them in the evidentiary record. After providing Applicant and Department Counsel an opportunity to address the documents in question and present additional evidence if desired, the Judge will issue a new decision. We do not retain jurisdiction over remanded cases. After the Judge issues a new decision, the appropriate party can appeal pursuant to Directive ⁋⁋ E3.1.28-35. Other issues in Applicant’s brief are not ripe for consideration.

ORDER

The Decision is REMANDED. Signed: James F. Duffy James F. Duffy Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board

FOOTNOTES

1 GE 4 contained the following assertion by the Department Counsel: “In the present case, the Government’s heightened risk concern is based primarily upon Applicant’s various ties to Kosovo . . . rather than specific country conditions therein.” GE 4 at 2. This further underscores that Applicant had no reason to believe that political conditions in Kosovo would likely be determinative and that he should focus his preparation on addressing the nature of his family and economic ties with that country.