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ISCR Case 06-19169.a1 — CASE

ISCR Case 06-19169.a1unknown

Case Headnote

ISCR Case No. 06-19169.a1

Nov 2, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

This DOHA security clearance case, involving Guideline H (Drug Involvement), was brought before the Appeal Board by an applicant representing herself. The initial denial of her security clearance was based on Guideline H, but the core issue on appeal centered on a jurisdictional question regarding the alleged withdrawal of her application.

The Appeal Board determined that the case required further fact-finding to properly address whether the applicant had indeed withdrawn her application. The Board underscored that jurisdictional defects, such as an improper withdrawal, can be raised at any stage of the proceedings, including during an appeal.

Consequently, the DOHA Appeal Board remanded the case for additional investigation into the circumstances surrounding the alleged withdrawal. The outcome of the security clearance decision itself remains pending this further fact-finding.

Conditions Referenced

Disqualifying

HraisedDrug Involvement

Key Rule Quoted

“Jurisdictional defects can be raised at any point in a DOHA proceeding, including for the first time on appeal.”
— ISCR Case No. 02-24227 at 4 (App. Bd. Oct. 7, 2003)

Procedural Posture

SOR issuedOct 25, 2006
Answer filed—
Hearing held—
Decision dateNov 2, 2007Remanded for further fact-finding.

Cite For

Jurisdictional Defects Can Be Raised at Any Point in DOHA Proceedings
Remand for Further Fact-finding Regarding Application Withdrawal
Consideration of New Evidence on Appeal

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 an applicant who was denied a security clearance based on drug involvement. The applicant argued that the Judge lacked subject matter jurisdiction due to a purported withdrawal of her security clearance application. The Board remanded the case for further fact finding on this jurisdictional issue.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMark W. Harvey — denied the clearance

Decided onthe written record

Guidelines belowGuideline H

What the Board reviewed

No specific harmful error alleged — raised by the applicantNot reached
Applicant contended that the Judge lacked subject matter jurisdiction to issue his decision.

Why the Board ruled this way

The Board found that a serious legal issue regarding jurisdiction was raised that could not be resolved without additional fact finding, which necessitated remanding the case to the Judge.

Other

On remand, the judge must

Reopen the record to allow the parties to present evidence regarding the alleged withdrawal of Applicant’s SCA and to rule on whether Applicant’s case should have been terminated without a clearance decision being issued.

Standard of review applied

No 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 H DIGEST: Jurisdictional defects can be raised at any point in a DOHA proceeding including for the first time on appeal. The matters submitted by Applicant raise a serious legal issue which cannot be resolved without fact finding beyond the record. Adverse decision remanded. CASENO: 06-19169.a1 DATE: 11/02/2007 DATE: November 2, 2007 In Re: ------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-19169

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Ray T. Blank, Jr., Esq., Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On October 25, 2006, DOHA issued a statement of reasons advising Applicant of the basis for that decision–security concerns raised under Guideline H (Drug Involvement) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On May 29, 2007, after considering the record, 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 issue on appeal: whether the Judge lacked subject matter jurisdiction to issue his decision. We remand the case to the Judge. Applicant’s brief contains new evidence. See Directive ¶ E3.1.29. We are presenting the entirety of her arguments solely for the purpose of addressing her jurisdictional challenge. Applicant contends that, after receiving a request from DOHA to provide a response to the File of Relevant Material (FORM), she and her employer asked the employer’s security officer to terminate her request for a security clearance. He agreed to do so. She states she then believed that she did not need to reply to the FORM. She further advises that she was “dismayed” upon receipt of the Judge’s adverse decision, because she believed the case was over. Applicant states that “[i]n a telephone call to [security officer] on June 6, 2007, he told me that he did everything he needed to do to withdraw the application and had done so the same day that he told me he would (March 23). He also told me that he believed the failure to withdraw the case was an error on the part of DOHA.” Accompanying her brief is a statement by the security officer, to the effect that, following the request from Applicant and the employer, he spoke with a representative at DOHA, who advised him to withdraw Applicant’s SCA by means of the Joint Clearance and Access Verification System (JCAVS). The security officer states that he did as instructed by the DOHA representative. Directive ¶ 4.4 provides that if an applicant’s need for classified information terminates, then processing of his or her case shall cease. Exceptions to this policy are if a hearing has commenced, a decision issued, or the applicant provides a written request for the case to continue. DOHA Operating Instruction 29 sets forth detailed implementation of this policy. Applicant contends, in effect, that her need for a clearance had been properly terminated prior to the date for responding to the FORM. As a consequence, her case should have been terminated without a decision. Jurisdictional defect can be raised at any point in a DOHA proceeding, “including for the first time on appeal.” ISCR Case No. 02-24227 at 4 (App. Bd. Oct. 7, 2003). The matters submitted by Applicant raise a serious legal issue which cannot be resolved without fact finding beyond the matters contained in the FORM. Such fact finding is beyond the scope of the Board’s authority, and we cannot base a decision on new evidence. Therefore, we remand this case to the Judge to reopen the record (1) to allow the parties to present evidence as to the facts and circumstances regarding the alleged withdrawal of Applicant’s SCA and (2) to make a ruling as to whether Applicant’s case should have been terminated without a clearance decision being issued. See Id. at 5.

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