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ISCR 06-13610.a1: Guideline E security clearance appeal (2008) · CASE

ISCR Case 06-13610.a1unknown

Case headnote

ISCR Case No. 06-13610.a1

Oct 31, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

This security clearance case involved an applicant representing himself, facing concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The issues stemmed from numerous delinquent debts and the applicant providing false information on his security clearance form.

However, the appeal board determined that the applicant's due process rights were compromised. A telephonic interview was conducted, but it did not meet the requirements of a proper hearing. The board found that the applicant did not knowingly waive his right to a hearing, as he was not fully informed of the implications of the telephonic procedure.

Consequently, the case was remanded for a new proceeding to ensure the applicant receives a proper hearing. No final security clearance outcome was reached at this stage.

Conditions referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

Key rule quoted

“While applicants can waive various rights under the Directive, including the right to a hearing, waivers must be knowing and intelligent.”
ISCR Case No. 06-24460 (App. Bd. Apr. 30, 2008)

Procedural posture

SOR issuedJun 29, 2007
Answer filed—
Hearing heldMar 20, 2008Telephonic interview conducted.
Decision dateOct 31, 2008Appeal board remanded the case.

Cite for

Due Process Rights in Security Clearance Hearings
Requirements for Waiving the Right to a Hearing
Impact of Telephonic Interviews on 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· Full written decision

Remanded

The appeal involved a denial of security clearance based on financial considerations and personal conduct. Applicant argued that the telephonic interview did not constitute a proper hearing and that he was denied due process. The Board found merit in the appeal and remanded the case for a new proceeding.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMark W. Harvey denied the clearance

Decided onthe written record

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantError sustained
Applicant argued that the telephonic procedure denied him the benefits of a hearing as contemplated by the Directive.

Why the Board ruled this way

The Board found that the telephonic interview did not provide the benefits of a hearing, and Applicant's waiver of the right to a hearing was not sufficiently knowing, thus remanding for a new proceeding.

No rational connection between facts and conclusion

On remand, the judge must

Conduct a new proceeding, either a determination on the written record or a hearing that complies with the requirements of the Directive, considering Applicant's presence in a conflict zone.

Standard of review applied

Harmful-error gatekeeperNo de-novo re-decisionNo new evidence on appeal

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

KEYWORD: Guideline F; Guideline E DIGEST: The Directive permits Applicant to mitigate security concerns either in writing with the Judge deciding the case on a written record or by means of hearing. The telephonic interview conducted in this case had some attributes of a hearing and was occasionally called a hearing by the Judge. It is not clear that Applicant knowingly waived his right to a hearing. Adverse decision remanded for a new proceeding. CASENO: 06-13610.a1 DATE: 10/31/2008 DATE: October 31, 2008 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-13610

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se Prior to the proceedings in this case, Department Counsel objected to the proposed telephone interview of Applicant. See GE 6, Government Motion, February 21, 2008. At the beginning of the telephonic proceeding the Judge acknowledged those objections, stating that they were part of the record. Tr. at 14. However, Department Counsel did not raise these objections on appeal. Therefore, they are not before the Board. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On June 29, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations) and Guideline E (Personal Conduct) of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Although Applicant requested a decision on the written record, he subsequently moved to convert his case to a hearing. Department Counsel did not object. On April 28, 2008, after a proceeding conducted telephonically, Administrative Judge Mark W. Harvey denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether he was denied due process as set forth in the Directive and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding error, we remand the case to the Judge. The SOR alleges that Applicant has numerous delinquent debts and that he deliberately provided false answers on the security clearance form. On appeal Applicant states that the telephonic procedure which the Judge employed in this case denied him the benefit of a hearing as contemplated by the Directive, specifically an opportunity for the Judge to evaluate his demeanor. Applicant requests an opportunity to present his case in person. We construe this to be a request to remand the case to the Judge for a new proceeding. We have examined the record. We note that Government Exhibit (GE) 4 contains a series of e-mail messages between the Judge and the parties concerning the proposed hearing. Specifically, Applicant was not able to attend the hearing in person, due to his presence in a war zone. There were logistical difficulties setting up a video teleconference (VTC), which, in his appeal, he attributes to technical difficulties at DOHA. By e-mail dated February 22, 2008, the Judge mentioned a telephonic interview as an alternative to the VTC, advising Applicant that “You have a right to an in personam hearing . . . A speaker phone interview is not a hearing. A hearing requires the judge to assess credibility through observing demeanor. A speaker phone interview would be recorded and transcribed. A speaker phone interview is a lawful manner for you to present information for my consideration . . .” Subsequently, Applicant sent the following message to the Judge and to Department Counsel: “It looks like the VTC is not going to work out as well as we had planned. I will put this in writing so everyone will know that I am requesting this. I, [Applicant], am requesting a tele-conference for my interview with the personnel listed in this email.” Accordingly, the parties arranged for a telephonic interview of Applicant, which occurred on March 20, 2008. At the beginning of the proceeding, the Judge advised Applicant that he had a right to a hearing in person or by video-teleconference and asked Applicant if he waived that right. Applicant replied that he did so waive. Tr. at 14.1 An applicant has a right under the Directive to present matters to a Judge in an effort to mitigate any security concerns in his case. He can do so in writing, the Judge deciding the case on the written record. Directive ¶ E3.1.7. He can also do so by means of a hearing in which he appears in person. Directive ¶ E3.1.8. There is no other alternative means for an Applicant to present his case to DOHA. In the case at issue here, Applicant initially requested a determination on the written record. He later changed his mind and requested a hearing, to which the Department Counsel did not object. A review of the record suggests that, throughout the processing of his case, Applicant desired the benefits of a hearing, agreeing to the telephonic interview only when a VTC could not be accomplished. By advising Applicant that the telephonic interview was not a hearing but, rather, a means by which Applicant could make a statement, the Judge appears, in effect, to have converted the case to an administrative determination on the written record, Applicant’s telephonic interview serving as an alternative to a written response to the Government’s File of Relevant Material. Despite Applicant’s having stated that he waived his right to a VTC, it is not clear that Applicant understood the significance of the procedure utilized in his case. The Board notes that on more than one occasion during the telephonic interview the Judge referred to the procedure in question as a “hearing,” that he provided the Department Counsel with an opportunity to present evidence, examined Applicant’s capacity to represent himself, and advised Applicant of the proper method by which he should lodge any objections to that evidence. See, e.g., Tr. at 3 - 8. The Judge advised Applicant of the extent to which the Federal Rules of Evidence would apply to the interview, a procedure more pertinent to a hearing. Tr. at 8. See Directive ¶ E3.1.19. He also advised Applicant that “the hearing will be open” unless Applicant requests otherwise, which is a rule with no applicability to a determination on the written record. Tr. at 9; Directive ¶ E3.1.12. The Judge appears to have conducted the interview more in the manner of a hearing than merely of transcribing a statement for use in a determination on the written record. Examining the record as a whole, it is reasonable to conclude that, despite the Judge’s advice concerning the limitations of a telephonic interview, Applicant may have believed himself to be receiving more of the benefits of a hearing than was actually the case. While applicants can waive various rights under the Directive, including the right to a hearing, waivers must be knowing and intelligent. See ISCR Case No. 06-24460 (App. Bd. Apr. 30, 2008)(waiver of right to counsel); ISCR Case 05-01237 (App. Bd. May 10, 2007)(waiver of right to 15 day notice of the hearing). See also ISCR Case No. 03-08512 at 3 (App. Bd. Jun. 8, 2005) for list of factors demonstrating a proper waiver of the right to a hearing. Given Applicant’s pro se status, the likely exigencies of communicating to DOHA from a war zone, and the circumstances highlighted above, a reasonable person could conclude that Applicant’s waiver of his right to a hearing was not sufficiently knowing so as to satisfy the due process requirements of Directive. Accordingly, the Board concludes that the best course of action is to remand the case to the Judge for a new proceeding, either a determination on the written record or a hearing that complies with the requirements of the Directive (making appropriate allowances given Applicant’s presence in a conflict zone). The remaining issue is not ripe for consideration.

ORDER

The Judge’s adverse security clearance decision 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