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ISCR 22-02162: Guideline F security clearance appeal (2023) · CASE

ISCR Case 22-02162unknown

Case headnote

ISCR Case No. 22-02162

Oct 18, 2023· Hon. Gregg A. Cervi· appeal

Summary

This case involves an applicant, represented by counsel, whose security clearance was initially denied under Guideline F (Financial Considerations) due to several financial issues. The disqualifying conditions raised included the applicant's failure to file a 2019 tax return, delinquent taxes owed for 2012, and multiple delinquent consumer debts.

However, the case did not reach a final determination on the merits of the financial concerns. Instead, the decision was remanded for a new hearing opportunity. This remand was due to procedural issues concerning the applicant's original request for a hearing, indicating that the applicant was not afforded a proper opportunity to present their case.

Therefore, there is no final outcome regarding the security clearance denial based on the financial considerations at this stage, as the procedural error necessitated a new hearing.

Conditions referenced

Disqualifying

F.1raisedFinancial Considerations

Procedural posture

SOR issuedDec 2, 2022
Answer filed—
Hearing held—Applicant did not request a hearing.
Decision dateOct 18, 2023Decision remanded for procedural issues.

Cite for

Remand Due to Procedural Due Process Issues
Failure to Communicate Hearing Request
Financial Considerations Under Guideline F

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 security clearance based on financial considerations. Applicant argued that he was denied his right to a hearing. The Board found merit in this claim and remanded the case for a hearing to be held.

Appealed bythe applicant

Applicant representationAttorney

Judge belowPaul J. Mason denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Procedural error, raised by the applicantError sustained
Applicant contended that his right to a hearing was denied.

Why the Board ruled this way

The Board found that Applicant's procedural due process rights were violated as he was not given the opportunity for a hearing despite requesting one before the deadline.

Other

On remand, the judge must

The Judge is required to issue a new decision after providing Applicant an opportunity for a hearing.

Standard of review applied

Procedural compliance

Appeal Board panel

James F. Duffy (Chair)
Gregg A. Cervi
Allison Marie

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. 22-02162

)

) Applicant for Security Clearance ) _______________________________________) 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 Date: October 18, 2023

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Christopher Snowden, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On December 2, 2022, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision―security concerns raised under Guideline F (Financial Considerations) of the National Security Adjudicative Guidelines (AG) in Appendix A of Security Executive Agent Directive 4 (effective June 8, 2017) and DoD Directive 5220.6 (January 2, 1992, as amended) (Directive). On August 22, 2023, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Paul J. Mason denied Applicant’s security clearance eligibility. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. For reasons stated below, we remand the Judge’s decision because of a procedural due process issue. The SOR contains 17 allegations that assert Applicant failed to file his Federal tax return for 2019 as required, that he was indebted to the Federal Government for delinquent taxes for 2012, and that he had 15 delinquent consumer debts. In his SOR Response, Applicant indicated that he did not “wish to set a court date to explain my case.” Because Applicant did not request a hearing, the case was appropriately processed for a decision based on the written record. Directive ¶ E3.1.7. Department Counsel prepared a File of Relevant Material (FORM) that was sent to

Applicant on March 15, 2023. Applicant received the FORM the same day, and he was given thirty days from its receipt to submit any objections or additional matters for the Judge to consider. Applicant’s response was due on April 14, 2023. The record reflects that Applicant did not submit a response to the FORM and the Judge based his decision on the written matters presented to him. On appeal, Applicant contends that his right to a hearing was denied. Applicant’s appeal brief includes a letter from a law firm dated March 20, 2023, indicating that he requested a hearing. This letter was not sent to the Department Counsel who signed the FORM, whose office is in Woodland Hills, California. Instead, the letter was emailed to DOHA personnel in Arlington, Virginia.1 The hearing request was apparently never delivered to Department Counsel or the Judge before the decision was issued. The Appeal Board is aware that an applicant’s request for a hearing submitted before expiration of the FORM response deadline is routinely granted. In its reply brief, the Government indicates that “a remand is in the best interests of fairness for both parties and the established administrative process.” Reply Brief at 7. Given these circumstances, we are remanding the case to the Judge so that Applicant may be provided an opportunity to have a hearing. Upon remand, a Judge is required to issue a new decision. Directive ¶ E3.1.35. The Board retains no jurisdiction over a remanded decision. However, the Judge’s decision issued after remand may be appealed pursuant to Directive ¶¶ E3.1.28 and E3.130.

ORDER

The Judge’s adverse security clearance decision is REMANDED. Signed: James F. Duffy James F. Duffy Administrative Judge Chair, Appeal Board Signed: Gregg A. Cervi Gregg A. Cervi Administrative Judge Member, Appeal Board Signed: Allison Marie Allison Marie Administrative Judge Member, Appeal Board 1 The DOHA letter transmitting the FORM to Applicant indicated that any response should be sent to the Woodland Hills address. The email forwarding the hearing request included the Deputy Chief Department Counsel as an addressee, however, it was not sent to her correct email address, and she never received it. Reply Brief at 6-7.