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ISCR Case 11-08849.a1 — CASE

ISCR Case 11-08849.a1unknown

Case Headnote

ISCR Case No. 11-08849.a1

Dec 2, 2013· Hon. Jeffrey D. Billett· appeal

Summary

This case involves an applicant who was denied a security clearance under Guideline F, Financial Considerations. The applicant, representing himself, appealed the denial, arguing that the judge did not consider additional evidence submitted after the initial hearing.

The appeal specifically contended that this new evidence, which was relevant to the financial considerations, was overlooked in the initial decision-making process. The applicant sought to have this information properly reviewed.

As a result, the case was remanded for further processing. This action ensures that the judge will duly consider all submitted evidence, including the materials provided post-hearing, before a final determination is made regarding the applicant's security clearance. No final outcome has been reached yet.

Procedural Posture

SOR issuedJan 10, 2013
Answer filed—
Hearing heldJun 10, 2013
Decision dateDec 2, 2013Remanded for further processing.

Cite For

Remand for Consideration of Additional Evidence Under Guideline F
Due Process Considerations in Security Clearance Appeals
The Importance of Holding the Record Open for Post-hearing Submissions

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 the Judge did not consider additional evidence submitted after the hearing. The Board remanded the case for the Judge to consider this evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowClaude R. Heiny — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantError sustained
The Judge did not consider additional evidence submitted by the Applicant after the hearing.

Why the Board ruled this way

The Board found that the Judge did not consider evidence that was submitted after the hearing, which warranted a remand for further processing.

Missing findings

On remand, the judge must

The Judge must consider the additional evidence submitted by the Applicant after the hearing.

Standard of review applied

No de-novo re-decisionNo new evidence on appealProcedural compliance

Appeal Board panel

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
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: The Judge held the record open after the hearing to give Applicant an opportunity to submit additional evidence. Applicant provided evidence, but it was not included in the record. Adverse decision remanded. CASE NO: 11-08849.a1 DATE: 12/02/2013 DATE: December 2, 2013 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-08849

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On January 10, 2013, DoD 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 August 27, 2013, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Claude R. Heiny denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge considered all the evidence in the case. Consistent with the following, the Board remands the case to the Judge. Applicant has made representations from outside the record, the gist of which is that he provided documents to Department Counsel post-hearing that were not considered by the Judge. As a general rule, we cannot consider new evidence on appeal. Directive ¶ E3.1.29. However, in the past we have considered new evidence insofar as it raises questions of due process or jurisdiction. See, e.g., ISCR Case No. 12-01038 (App. Bd. Mar. 22, 2013). In the case before us, the hearing transcript verifies Applicant’s assertion that the Judge granted Applicant a period of one week after the close of the hearing (the hearing was held on June 10, 2013) during which Applicant could present further evidence, and that evidence was to be forwarded to Department Counsel and then to the Judge. On appeal, Applicant states that he forwarded some documents to Department Counsel on June 13, 2013 via an overnight delivery service. The documentary evidence portion of the case file contains the exhibits referenced in the Judges decision. It also contains approximately 70-75 pages of documents that are not referenced in the Judge’s decision. These documents are not bound to the file and are loose leaf. The most recent of these documents are dated June 12 and June 13, 2013. The Judge’s decision states, “The record was held open to allow Applicant to submit additional information. No additional material was received.”1 In light of the circumstances described above, the Board concludes that the best resolution of this matter is to remand the case to the Judge for further processing. Other issues raised by Applicant’s appeal brief are not ripe for our consideration.

ORDER

The case is REMANDED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board

FOOTNOTES

1 Decision at 2.