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ISCR 14-01655.a1: Guideline B security clearance appeal (2015) · CASE

ISCR Case 14-01655.a1unknown

Case headnote

ISCR Case No. 14-01655.a1

unknownNov 3, 2015· Hon. Jeffrey D. Billett· appeal

Summary

This case involves an applicant, representing themselves, who sought a trustworthiness designation but faced concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). These guidelines address potential security risks related to foreign connections or preferences over U.S. interests.

Specifically, the disqualifying conditions raised were AG B and AG C, indicating that the applicant's foreign ties or preferences were deemed problematic for a security clearance.

The appeal was remanded, meaning it was sent back for further action, because official notice documents were missing from the record. The reviewing authority emphasized that a complete record is essential for a thorough and meaningful appellate review. No final outcome on the trustworthiness designation has been reached.

Conditions referenced

Disqualifying

AG BraisedForeign Influence
AG CraisedForeign Preference

Key rule quoted

“Because of the dynamic nature of the Internet, a reference to a document’s URL in the case record would not necessarily be sufficient to preserve the matter for meaningful appellate review.”
ISCR Case No. 02-24875 (App. Bd. Mar. 29, 2006)

Procedural posture

SOR issuedJun 13, 2014
Answer filed—Applicant requested a decision on the written record.
Hearing heldSep 30, 2015Decision by Administrative Judge Carol G. Ricciardello.
Decision dateNov 3, 2015Appeal remanded.

Cite for

Remand for Inclusion of Official Notice Documents in the Record
Importance of a Complete Record for Appellate Review
Evaluation of Trustworthiness Concerns Under Guidelines B and C

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

APPEAL

SYNOPSIS

KEYWORD: Guideline B; Guideline C DIGEST: As a threshold matter the official notice documents that Department Counsel cited are not contained in the record. Rather, Department Counsel has cited to the web sites where he obtained them. Due to the dynamic nature of the Internet, a reference to a document’s URL in the case record is not sufficient to preserve the matter for meaningful appellate review. Nor can we consider in a vacuum, without reference to a properly developed record, whether a document was properly noticed by an Administrative Judge. Adverse decision remanded. CASENO: 14-01655.a1 DATE: 11/03/2015 DATE: November 3, 2015 In Re: --------

Applicant for Public Trust Position ) ) ) ) ) ) ) ) ADP Case No. 14-01655

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 trustworthiness designation.1 On June 13, 2014, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–trustworthiness concerns raised under Guideline B (Foreign Influence) and Guideline C (Foreign Preference) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On September 30, 2015, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Carol G. Ricciardello denied Applicant’s request for a trustworthiness designation. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. As a threshold matter, one of the issues that Applicant has raised requires us to evaluate the Judge’s findings concerning official notice documents that Department Counsel has cited in the FORM, as well as the weight that the Judge assigned to these documents. However, the documents are not contained in the record. Rather, Department Counsel has cited to the web sites where he obtained them. We addressed a similar issue in ISCR Case No. 02-24875 (App. Bd. Mar. 29, 2006), where the Judge took official notice of a State Department document that was not in the case file. We stated in part that, “[b]ecause of the dynamic nature of the Internet, a reference to a document’s URL in the case record would not necessarily be sufficient to preserve the matter for meaningful appellate review.” Id. at note 3. We also noted that “[t]he Board cannot consider in a vacuum, without reference to a properly developed record, whether a document was properly noticed by an Administrative Judge.” Accordingly, we remanded that case to the Judge for the purpose of locating the document and making it part of the case file. In the case before us, Applicant has raised issues that require us to evaluate the Decision in light of documents that are not part of the record. We conclude that the best resolution is to remand the case to the Judge to preserve in the record all the official notice documents referenced in the FORM. The other issues raised by Applicant are not ripe for adjudication.

ORDER

The Decision is REMANDED. Signed: Michael Ra’anan Michael 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 The Statement of Reasons characterizes this case as a security clearance adjudication, as does correspondence from DOHA to Applicant prior to the Decision. On the other hand, the File of Relevant Material (FORM) and the Judge’s Decision treat it as a trustworthiness determination. Applicant’s job appears to be one for which a trustworthiness determination would be appropriate. This apparent discrepancy does not affect the outcome, insofar as the Guidelines apply to all adjudications under the Directive, including both security clearance and public trust cases. See Memorandum, Implementation of Adjudicative Guidelines, dated August 30, 2006, contained in Directive, Enclosure 2. The same standard applies to both security clearances and trustworthiness determinations as well. See, e.g., ADP Case 12-04343 at 3 (App. Bd. May 21, 2013).