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ISCR 12-05232.a1: Guideline B security clearance appeal (2014) · CASE

ISCR Case 12-05232.a1unknown

Case headnote

ISCR Case No. 12-05232.a1

Feb 10, 2014· Hon. Jeffrey D. Billett· appeal

Summary

This case involves an applicant, represented by counsel, whose security clearance was initially denied under Guideline B (Foreign Influence) and Guideline E (Personal Conduct). The appeal board did not issue a final outcome on the merits of the denial but instead remanded the case for further proceedings.

The remand was based on procedural issues, specifically concerning the applicant's right to submit evidence after the initial hearing. The judge had not considered this post-hearing evidence, leading the appeal board to question whether the applicant's due process rights had been fully observed.

Therefore, the case was sent back to address these procedural deficiencies, particularly the unconsidered evidence, before a definitive decision on the security clearance denial could be reached. No final outcome regarding the clearance itself has been determined.

Conditions referenced

Disqualifying

Guideline BraisedForeign Influence
Guideline EraisedPersonal Conduct

Key rule quoted

“the Board has considered new evidence or assertions outside the record insofar as it raises questions of due process or jurisdiction.”
ISCR Case No. 12-01038 at 1-2 (App. Bd. Mar. 22, 2013)

Procedural posture

SOR issuedSep 11, 2012
Answer filed—
Hearing heldNov 8, 2013
Decision dateFeb 10, 2014Appeal remanded.

Cite for

Procedural Issues Regarding the Right to Submit Evidence Post-hearing
Due Process Considerations in Security Clearance Cases
Remand for Consideration of New Evidence in Appeals

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 concerns under Guideline B and Guideline E. The Applicant argued that the Judge's decision was arbitrary and did not consider evidence submitted after the hearing. The Board remanded the case for further consideration of the additional evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMarc E. Curry denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantError sustained
Applicant argued that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge did not consider evidence submitted by the Applicant after the hearing, which raised due process concerns. Therefore, the case was remanded for further processing.

Other

On remand, the judge must

The Judge must consider the documents submitted by the Applicant after the hearing that were not previously considered.

Standard of review applied

Harmful-error gatekeeperNo de-novo re-decisionProcedural 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 B; Guideline E DIGEST: Appeal Board will consider evidence from outside the record to resolve threshold issues of due process or jurisdiction. Applicant argued matters that were outside the record to the effect that he had been denied his right to submit evidence. Adverse decision remanded. CASE NO: 12-05232.a1 DATE: 02/10/2014 DATE: February 10, 2014 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-05232

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT John Bayard Glendon, Esq., Deputy Chief Department Counsel FOR APPLICANT Cathryn E. Young, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On September 11, 2012, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline B (Foreign Influence) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On November 8, 2013, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Marc E. Curry denied Applicant’s request for a security clearance. Applicant appealed, pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law. For the following reasons, the Board remands the case to the Judge. The Board notes a threshold issue raised by Applicant. In his brief he makes the representation that he submitted evidentiary matters after the hearing that were not considered by the Judge. As such, Applicant has made representations from outside the record. As a general rule, the Board cannot consider new evidence on appeal. Directive ¶ E3.1.29. However, in the past, the Board has considered new evidence or assertions outside the record insofar as it raises questions of due process or jurisdiction. See, e.g., ISCR Case No. 12-01038 at 1-2 (App. Bd. Mar. 22, 2013). At the hearing, Applicant submitted, and the Judge accepted into evidence Applicant Exhibits A through HH. The hearing transcript verifies Applicant’s assertion that he indicated his desire for the record to be kept open to enable him to submit documents after the hearing. The record also verifies Applicant’s statement that the Judge agreed to hold the record open for approximately seven days until August 23, 2013 for additional submissions. Tr. at 57-58. On appeal, Applicant asserts that subsequent to the hearing, he submitted Supplemental Exhibits FF through QQ in a timely fashion to the Judge and Department Counsel. The Judge’s decision does not reflect either the receipt of, or the consideration of, these exhibits, with the exception of Exhibits FF, GG, and HH.1 Department Counsel’s reply brief does not address this issue. These circumstances suggest that Applicant made submissions that were not considered by the Judge. Applicant requests that the documents submitted by him after the hearing be admitted into evidence and considered. Given these circumstances, the Board concludes that the best course of action 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 decision of the Judge 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 There is a discrepancy between the record evidence and Applicant’s claim on appeal regarding Exhibits FF, GG, and HH. Given that these three exhibits are part of the record, why Applicant made their purported omission an issue on appeal is not clear.