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ISCR 08-07664.a1: Guideline F security clearance appeal (2009) · CASE

ISCR Case 08-07664.a1unknown

Case headnote

ISCR Case No. 08-07664.a1

Dec 29, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves an applicant who, representing himself, was denied a security clearance under Guideline F (Financial Considerations). The denial stemmed from financial difficulties primarily caused by medical expenses related to his daughter's illness.

The applicant appealed the decision, raising due process concerns. Specifically, he argued that he relied on advice from Department Counsel regarding the submission of corroborating evidence, which may have impacted his ability to present a complete case.

The Board did not issue a final outcome on the clearance itself but instead remanded the case. This remand was for further consideration of the raised due process issues and to allow the applicant an opportunity to present additional evidence in mitigation of his financial concerns.

Key rule quoted

“The Board does not have the authority to make factual findings.”

Procedural posture

SOR issuedMay 15, 2009
Answer filed—
Hearing heldSep 24, 2009Applicant requested a decision on the written record.
Decision dateDec 29, 2009Adverse decision remanded.

Cite for

Due Process Considerations in Security Clearance Cases
Impact of Reliance on Advice From Department Counsel
Remand for Further Evidence Submission in Financial 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 security clearance based on financial considerations under Guideline F. The Applicant argued that he was denied due process because he relied on Department Counsel's advice not to submit corroborating evidence. The Board remanded the case for further proceedings to address this issue.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMary E. Henry denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantError sustained
Applicant contends he was denied due process due to reliance on Department Counsel's guidance regarding evidence submission.

Why the Board ruled this way

The Board found that the Applicant's claim of reliance on Department Counsel's guidance regarding evidence submission raised a due process issue that warranted remand for further consideration.

Other

On remand, the judge must

The Judge should reopen the record and give the parties an opportunity to address the issue raised on appeal, and conduct further appropriate processing of the case, consistent with the Directive.

Standard of review applied

Harmful-error gatekeeperNo de-novo re-decisionProcedural 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

KEYWORD: Guideline F DIGEST: Applicant contends on appeal that he followed guidance provided by Department Counsel in the proceedings below as a result of which he did not submit corroborating evidence which was available to him. Department Counsel did not address Applicant’s claim The Board does not have authority to make factual findings. Adverse decision remanded. CASENO: 08-07664.a1 DATE: 12/29/2009 DATE: December 29, 2009 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-07664

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Robert E. Coacher, Esq., Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On May 15, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis 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 September 24, 2009, after considering the record, Administrative Judge Mary E. Henry denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether he was denied the due process afforded by the Directive. For reasons set forth below, we remand the case to the Judge. The Judge found that Applicant had financial problems that began with medical expenses occasioned by his daughter’s serious illness. The Judge acknowledged that Applicant’s reply to the file of relevant material (FORM) asserted that he had paid eight of the nine alleged debts and was resolving the remaining one. She went on to observe, however, that Applicant had “failed to submit any documents which show his debt payments and compliance with his payment plan.” Due to the absence of corroborating evidence, the Judge concluded that Applicant had failed to mitigate the security concerns in his case. In his appeal brief, Applicant contends that he possessed such corroborating evidence. He states that the two credit reports in the case file were outdated, because subsequent to their preparation he “had taken several steps towards adjudicating those debts and had done so by the time this case was submitted to the Administrative Judge.” (emphasis added) Applicant went on to state that he understood from Department Counsel that he did not need to submit the corroborating evidence. I called [DOHA] and asked [Department Counsel] what information I needed to send in to the Judge as my defense. I was told that a letter stating why I did not agree with the investigation was sufficient material and I did not have to directly respond to each claim independently. Therefore, with that guidance, I submitted a letter of explanation to the circumstances which led to my situation and statement of Personal Finances. However, additional evidence is available to show that those debts have been settled as of the date indicated at the time of the hearing. Applicant Brief at 1.

In his reply brief, Department Counsel stated that DOHA sent Applicant a copy of the FORM, informing him of his right to submit material in mitigation. However, Department Counsel did not address Applicant’s claim about the advice he purportedly gave as to the content of Applicant’s reply to the FORM. Applicant’s appeal submission contains matters outside the record, and the Appeal Board may not consider new evidence on appeal. Directive ¶ E3.1.29; ISCR Case No. 08-06875 at 2 (App. Bd. Oct. 29, 2009); ISCR Case No. 08-06518 at 2 (App. Bd. Mar. 3, 2009). However, the Board has distinguished between new evidence as to the allegations in an SOR, which is outside our scope of The FORM states that “Applicant will be given the opportunity to submit documentary information in rebuttal or to explain adverse information in the FORM.” (emphasis added) It does not define “information” to include “evidence,” “corroboration,” etc. review, and statements in an appeal which raise threshold issues of due process or jurisdiction. See, e.g., ISCR Case No. 03-02994 at (App. Bd. May 12, 2005), which held that “the Directive does not prohibit the Board from considering, in an appropriate case, non-record statements for the limited purpose of deciding whether a party was wrongfully denied the opportunity to have evidence entered into the record for the Administrative Judge to consider in a case.” See also ISCR Case No. 06- 19169 at 2 (App. Bd. Nov. 2, 2007), in which the Board considered extra-record statements in an appeal brief in order to address a dispute over DOHA jurisdiction. In the case presently under review, Applicant has made a claim that he relied upon advice from Department Counsel in preparing his reply to the FORM. Applicant contends that, in reliance upon this advice, he did not send to the Judge evidence in his possession at the time which would have corroborated his claims to have paid his debts. Department Counsel’s brief does not explicitly address this contention, either to refute it in toto or otherwise explain it. Consistent with the two prior cases cited above, the Board construes Applicant’s appeal not as raising new evidence regarding his Guideline F security concerns but, rather, as having made a claim that his right to submit matters to the Judge in mitigation was impaired. The parties’ submissions on appeal, viewed in their entirety, present a question of whether Applicant was denied due process, and, because the Judge explicitly stated that she was influenced by the paucity of corroborating evidence, the concomitant issue of harmful error, neither of which the Board is in a position to resolve, given the current state of the record. See ISCR 01-23362 (App. Bd. Jun. 5, 2006); ISCR Case No. 03-09915 (App. Bd. Dec. 16, 2004); ISCR Case No. 01-11192 (App. Bd. Aug. 26, 2002) for discussion of harmful error. The Board does not have the authority to make factual findings. Nor can we determine from the record before us that Applicant’s question is without consequence. Compare, e.g., ISCR Case No. 06-22217 at 3 (App. Bd. Jul. 11, 2008) (“The record as it now stands is inconsistent with Applicant’s contention on appeal that she detrimentally relied on poor advice from Department Counsel in presenting her case”). See ISCR Case No. 05-03941 at 2 (App. Bd. Aug. 2, 2007); ISCR Case No. 08-00613 at 3 (App. Bd. Nov. 17, 2009). In similar situations, the Board has remanded the case to the Judge to address the matter raised on appeal. See ISCR Case No. 04-07825 (App. Bd. Mar. 18, 2006) (Applicant’s response to the FORM not included in the record); ISCR Case No. 06- 19169, supra (Jurisdictional defect); ISCR Case No. 01-20562 (App. Bd. Aug. 28, 2003) (Record ambiguous as to whether Applicant was provided an opportunity to respond to a document considered by the Judge). Accordingly, we conclude that the best resolution of the issue raised in this case is to remand it to the Judge. She should reopen the record and give the parties an opportunity to address the issue raised on appeal, bearing in mind that federal agencies are entitled to a presumption of good faith and regularity in the performance of their responsibilities. See ISCR Case No. 06-06496 at 3 (App. Bd. Jun. 25, 2009); See also ISCR Case No. 01-22311 (App. Bd. Apr 4, 2003) (A party seeking to rebut the presumption of good faith has a heavy burden). Thereafter she should conduct further appropriate processing of the case, consistent with the Directive.

ORDER

The Judge’s adverse security clearance decision is REMANDED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, 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