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ISCR Case 08-08860.a1 — CASE

ISCR Case 08-08860.a1unknown

Case Headnote

ISCR Case No. 08-08860.a1

unknownApr 2, 2010· Hon. Michael Y. Ra'anan· hearing

Summary

This case involved an applicant, represented by counsel, who sought a security clearance under Guideline F (Financial Considerations). The applicant had left employment with a defense contractor in September 2009.

The DOHA Appeal Board reviewed the prior denial of the clearance. However, the Board determined it lacked subject matter jurisdiction because the applicant's need for a security clearance had terminated before the hearing took place.

Consequently, the DOHA Appeal Board reversed the prior denial, rendering the entire proceedings void. No security clearance outcome was reached in this case.

Why the Applicant Prevailed

The applicant's need for a security clearance had terminated prior to the hearing.
The government counsel concurred with the applicant's assertion of lack of jurisdiction.

Key Rule Quoted

“Lack of subject matter jurisdiction can be raised at any time in the proceedings, including on appeal.”
— ISCR Case No. 02-24227 at 4 (App. Bd. Oct. 7, 2003)

Procedural Posture

SOR issuedJul 23, 2009
Answer filed—
Hearing heldDec 7, 2009
Decision dateApr 2, 2010

Cite For

Lack of Subject Matter Jurisdiction in Security Clearance Cases
Reversal of Adverse Decisions Due to Jurisdictional Issues
Impact of Employment Status on Security Clearance Eligibility

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

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

HEARING

SYNOPSIS

KEYWORD: Guideline F DIGEST: Lack of subject matter jurisdiction can be raised at any time. Reversal in the sense of vacating and rendering void all proceedings after Applicant left contractor employment. Adverse decision reversed. CASENO: 08-08860.a1 DATE: 04/02/2010 DATE: April 2, 2010 In Re: ------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-08860

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Tovah A. Minster, Esq., Department Counsel FOR APPLICANT Larry H. Colleton, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On July 23, 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 hearing. On December 7, 2009, after the hearing, Administrative Judge Carol G. Ricciardello denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. For reasons stated below, the Judge’s decision is vacated. Applicant submitted his security clearance application (SCA) on May 2, 2008. He was seeking a clearance due to his employment by a Defense contractor. Applicant left the employ of the contractor in September 2009 and began working for an agency of the U.S. government. He is currently employed by the government agency itself rather than by a contractor. Tr. at 27-28, 31-32. In response to a letter from DOHA dated September 29, 2009, the contractor provided a computer- generated document showing that Applicant had left the contractor’s employ on September 9, 2009.

The Directive provides that actions pursuant to it “shall cease upon termination of the applicant’s need for access to classified information,” with exceptions not pertinent to this case. Directive ¶ 4.4. Applicant contends on appeal that DOHA lacked jurisdiction to issue a decision in his case, because he no longer needed a clearance through his former contractor employer. Department counsel concurs. Lack of subject matter jurisdiction can be raised at any time in the proceedings, including on appeal. ISCR Case No. 02-24227 at 4 (App. Bd. Oct. 7, 2003). In this case, the record demonstrates that Applicant’s requirement for a security clearance had terminated prior to the date of the hearing. Therefore, DOHA processing of the case should have terminated prior to the hearing. Reversal in the sense of vacating the decision and rendering void all proceedings in this case after that date is mandated under these circumstances to correct this error. See ISCR Case No. 05-04831 at 5 (App. Bd. Nov. 29, 2006).

ORDER

The Judge’s decision to deny Applicant a security clearance is reversed. All DOHA processing in this case after September 9, 2009, shall be without legal effect. 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