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ISCR 14-03771.a1: Guideline F security clearance appeal (2015) · CASE

ISCR Case 14-03771.a1unknown

Case headnote

ISCR Case No. 14-03771.a1

Sep 2, 2015· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves an applicant who, representing himself, faced security clearance issues under Guideline F, Financial Considerations. The applicant's preparation for his hearing was negatively impacted by erroneous information he received, which incorrectly indicated he had already been granted a security clearance.

Due to this misleading information, the appeal board determined that the applicant's due process rights were not adequately upheld during the initial proceedings. Consequently, the board remanded the case for a new hearing.

The outcome of the security clearance decision is currently none, as the case has been sent back for further review and a new hearing to address the procedural issues.

Procedural posture

SOR issuedAug 15, 2014
Answer filed—
Hearing heldJun 25, 2015
Decision dateSep 2, 2015Appeal board remanded for a new hearing.

Cite for

Due Process Concerns Related to Erroneous Information Affecting Hearing Preparation
Remand for New Hearing Due to Misleading Adjudication Notifications
Impact of Prior Adjudications on Current Security Clearance Evaluations

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 he was denied due process due to an erroneous notification of a favorable adjudication prior to the hearing. The Board agreed and remanded the case for a new hearing to address these concerns.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJohn Grattan Metz, Jr. denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Due-process / fairness, raised by the applicantError sustained
Applicant contended that he was denied due process due to erroneous notification of a favorable adjudication.

Why the Board ruled this way

The Board found that the erroneous notification of a favorable adjudication likely caused confusion for the Applicant, impairing his preparation for the hearing. Therefore, a remand for a new hearing was warranted to ensure due process.

Other

On remand, the judge must

Conduct a new hearing to address the due process concerns raised by the erroneous notification of a favorable adjudication.

Standard of review applied

Harmful-error gatekeeperProcedural compliance

Appeal Board panel

Michael 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 was erroneously informed that he had a favorable adjudication prior to the hearing. Adverse decision remanded.. CASENO: 14-03771.a1 DATE: 09/02/2015

DATE: September 2, 2015 In Re: ----------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-03771

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 August 15, 2014, 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 June 25, 2015, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge John Grattan Metz, Jr., denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether he was denied due process. Consistent with the following, we remand the case for a new hearing. Applicant contends that his preparation for the hearing had been impaired by an error of the Consolidated Adjudications Facility (CAF). The record shows that, after he had completed his security clearance application (SCA) in 2013, and after he had received the SOR, he was notified by the CAF that he had been approved for a clearance. This notification was erroneous, insofar as it was based upon on a previous investigation that had been completed in 2003. However, Applicant concluded that he had been awarded a clearance despite his receipt of the SOR and believed that his request for a hearing had been overtaken by events. At the hearing, Applicant stated the following: I was under the impression that because . . . I was adjudicated and awarded a clearance earlier, or late last year, that this hearing would no longer be necessary, so I lack the evidence necessary to [resolve some of the allegations]. Tr. at 19. Applicant submitted copies of the emails that he had sent to DOHA personnel requesting clarification of his situation, which the Judge appended to the record as hearing exhibits. One of them states in part: My clearance application was adjudicated and I was awarded a SECRET clearance on 7 Nov 14. This predates my initial notification from [Department Counsel] on 2 Dec 14 of this hearing. For this reason, it is my opinion that a hearing is no longer necessary and would like to be removed from the docket and not waste the court’s time. Please advise. Hearing Exhibit III. The record contains no replies to these emails. Department Counsel acknowledged that she had not replied. “I was trying to discern an answer from the DoD CAF and did not get back to Applicant with an answer. I should have responded to him[.]” Tr. at 35. The Judge found that Applicant had received adequate notice of the hearing, along with copies of the evidence that the Government intended to present. However, he acknowledged that the erroneous notification had likely caused Applicant confusion. Therefore, he gave Applicant two weeks after the close of the hearing to submit the documentary evidence that he otherwise would have produced during his case-in-chief. Despite the Judge’s efforts to cure the error at issue here, we conclude that the notification of a favorable adjudication may have led Applicant reasonably to believe that his request for a substantive hearing had been overtaken by events and that he would not need to present evidence in order to close out his case. Under the circumstances, we conclude that the best resolution is to remand the case for another hearing. Any other remaining issues are not ripe for our consideration.

ORDER

The case is REMANDED. Signed: Michael Ra’anan Michael 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