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ISCR 06-07320.a1: Guideline F security clearance appeal (2007) · CASE

ISCR Case 06-07320.a1unknown

Case headnote

ISCR Case No. 06-07320.a1

Jul 25, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves an applicant who, representing himself, faced a security clearance denial under Guideline F (Financial Considerations). The DOHA Appeal Board determined that the Administrative Judge (AJ) had failed to consider the applicant's timely response to the File of Relevant Material (FORM).

The Board found that the AJ's decision did not reflect a review of this submission, which was a critical procedural error. Consequently, the DOHA Appeal Board did not issue a final outcome on the clearance itself.

Instead, the case was remanded for a new decision. This ensures that the Administrative Judge will properly consider the applicant's response to the FORM before making a determination regarding the security clearance.

Key rule quoted

“The proper remedy is to remand the case to the Judge for a new decision, one which takes into account Applicant’s submission in response to the FORM.”

Procedural posture

SOR issuedJun 30, 2006
Answer filednull
Hearing heldnull
Decision dateJul 25, 2007

Cite for

Remand Due to Failure to Consider Timely Submitted Evidence
Due Process Rights in Security Clearance Cases
Importance of Documentary Responses in Financial Consideration Cases 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 a security clearance based on financial considerations. The applicant argued that he did not receive due process rights. The Board found that the Administrative Judge erred in stating that the applicant did not submit a response to the relevant material, leading to a remand for a new decision that considers the applicant's submission.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJacqueline T. Williams denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

No specific harmful error alleged, raised by the applicantNot reached
The applicant argued that he did not receive due process rights.

Why the Board ruled this way

The Board found that the Judge erred by stating that the Applicant did not submit a response to the File of Relevant Material, as the file contained a response from the Applicant.

Missing findings

On remand, the judge must

The Judge must issue a new decision that takes into account Applicant’s submission in response to the FORM.

Standard of review applied

Harmful-error gatekeeperProcedural compliance

Appeal Board panel

Michael Y. Ra’anan (Chair)
William S. Fields
James E. Moody

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

FOR OFFICIAL USE ONLY When unredacted this document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA Exemption 6 applies KEYWORD: Guideline F DIGEST: The Judge’s decision states that Applicant did not submit a documentary response to the File of Relevant Material. However the file contains a response. Adverse decision remanded. CASENO: 06-07320.a1 DATE: 07/25/2007 DATE: July 25, 2007 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-07320

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On June 30, 2006, DOHA issued a statement of reasons advising Applicant of the basis Decision at 2. See Memorandum for Administrative Judge from the Director, DOHA, dated November 21, 2006 (“The Applicant submitted information within the time period of 30 days after receipt of copy of the file of relevant material. Response was due on 11/30/2006.”) 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 January 31, 2007, after considering the record, Administrative Judge Jacqueline T. Williams denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. We construe Applicant’s appeal submission as challenging whether he received the due process rights afforded him by the Directive. Finding error, we remand the case to the Judge. In her decision, the Judge states that, although provided a complete copy of the file of relevant material (FORM), Applicant did not submit a documentary response in accordance with Directive ¶ E3.1.7. She therefore decided the case based on the information provided to her, without input from Applicant. However, the file contains Applicant’s response to the FORM, dated November 17, 2006, which was forwarded to Department Counsel on November 21, 2006.2 Therefore, we conclude that Applicant’s submission on appeal is meritorious. We conclude that the proper remedy is to remand the case to the Judge for a new decision, one which takes into account Applicant’s submission in response to the FORM.

ORDER

The Judge’s decision denying Applicant a security clearance is REMANDED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board