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ISCR Case 14-04653.a1 — CASE

ISCR Case 14-04653.a1unknown

Case Headnote

ISCR Case No. 14-04653.a1

May 17, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves an applicant, represented by counsel, who sought a security clearance under Guideline F (Financial Considerations) after an initial denial by the Department of Defense. The applicant appealed this denial, raising due process concerns regarding evidence that was not included in the original record.

The appeal board reviewed the case and determined that the applicant's due process rights were potentially violated because certain evidence was not considered. Consequently, the board remanded the case for reconsideration, instructing that the previously excluded evidence be properly reviewed.

As of the current decision, no final outcome has been reached regarding the applicant's security clearance. The case has been sent back for further review of the financial considerations, incorporating all relevant evidence.

Key Rule Quoted

“Under the facts of this case, Applicant has made a prima facie showing that he offered relevant evidence that was not admitted and incorporated into the record and, therefore, not considered by the Judge.”

Procedural Posture

SOR issuedDec 8, 2014
Answer filed—
Hearing heldMar 10, 2016
Decision dateMay 17, 2016Appeal board remanded for reconsideration.

Cite For

Due Process Concerns Regarding Evidence Not Included in the Record
Remand for Reconsideration of Evidence
Prima Facie Case Regarding Evidence Admission

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 under Guideline F. The Applicant argued that he submitted evidence that was not included in the record. The Board found merit in this claim and remanded the case for the Administrative Judge to consider the additional evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowDavid M. White — 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 submitted documents to the Judge that were not included in the record.

Why the Board ruled this way

The Board found that the Applicant made a prima facie showing that relevant evidence was not admitted and incorporated into the record, which warranted remand for consideration of that evidence.

Ignored material evidence

On remand, the judge must

The Judge must consider Applicant’s evidence and then issue a Decision in accordance with the Directive.

Standard of review applied

Harmful-error gatekeeperNo de-novo re-decisionNo new evidence on appealProcedural compliance

Appeal Board panel

Michael Ra’anan — Chair
James E. Moody
James F. Duffy

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 has made a prima facie case that he offered evidence which was not incorporated into the record. Adverse decision remanded. CASENO: 14-04653.a1 DATE: 05/17/2016 DATE: May 17, 2016 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-04653

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Leanne M. Innet, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On December 8, 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 Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On March 10, 2016, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge David M. White denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant has raised an issue of due process. In doing so, he makes assertions from outside the record, which we generally cannot consider. Directive ¶ E3.1.29. However, we will consider new evidence insofar as it bears upon threshold issues such as due process. See, e.g., ISCR Case No. 15-01753 at 1 (App. Bd. Apr. 26, 2016). Specifically, he contends that he submitted documents to the Judge that were not included in the record. The Judge had left the record open for two weeks after the hearing, until August 26, 2015, for him to provide additional evidence. Tr. at 94-95. Applicant notes that, in reference to his opportunity to provide additional documents, he asked the Judge, “How does that work?” and the Judge replied that they would discuss it off the record. Tr. at 95. The contents of any off-record discussions are not summarized, so we cannot say for certain what kind of guidance Applicant may have received concerning the means by which his additional evidence should have been submitted. Be that as it may, Applicant states that he emailed documents to the Judge and attaches to his brief the printout of an email transmittal along with copies of documents that he asserts were the ones that he sent to the Judge. These documents do not appear in the record. Indeed, the Judge stated in the Decision that Applicant was given an opportunity to provide additional evidence but failed to do so. Decision at 2. Under the facts of this case, Applicant has made a prima facie showing that he offered relevant evidence that was not admitted and incorporated into the record and, therefore, not considered by the Judge. We conclude that the best resolution of the case is to remand it to the Judge to consider Applicant’s evidence and then issue a Decision in accordance with the Directive. The other issue that Applicant has raised is not ripe for consideration. The Decision is REMANDED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James E. Duffy James F. Duffy Administrative Judge Member, Appeal Board