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ISCR 17-03090.a1: Guideline B security clearance appeal (2018) · CASE

ISCR Case 17-03090.a1unknown

Case headnote

ISCR Case No. 17-03090.a1

Oct 26, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves an applicant who, representing himself, faced a security clearance denial under Guideline B, Foreign Influence. The denial stemmed from concerns about potential foreign influence on the applicant.

During the appeal process, jurisdictional questions arose regarding the applicant's resignation from his employment in January 2018. These questions prompted a remand of the case for further proceedings.

The purpose of the remand is to assess whether the applicant still requires access to classified information, which is a prerequisite for the security clearance process to continue. No final outcome on the clearance decision has been reached.

Key rule quoted

“The Directive provides that actions commenced pursuant to it "shall cease upon termination of the applicant’s need for access to classified information except in those cases in which . . . [a] hearing has commenced . . . [a] clearance decision has been issued; or . . . [t]he applicant’s security clearance was suspended and the applicant provided a written request that the case continue."”
Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended)

Procedural posture

SOR issuedSep 29, 2017
Answer filed—
Hearing heldAug 21, 2018Decision issued by Administrative Judge Shari Dam
Decision dateOct 26, 2018Remand for further proceedings

Cite for

Jurisdictional Issues in Security Clearance Cases
Impact of Resignation on Security Clearance Processing
Need for Access to Classified Information Under Directive 5220.6

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 foreign influence concerns. The applicant, representing himself, did not challenge the findings but mentioned his resignation from the job sponsoring his clearance. The Board remanded the case to address the jurisdictional issue of whether the case should have ceased following the resignation. The Board found insufficient evidence on this matter and directed further proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowShari Dam denied the clearance

Decided onthe written record

Guidelines belowGuideline B

What the Board reviewed

No specific harmful error alleged, raised by board sua sponteNot reached
The Board raised the issue of whether the processing of the case should have ceased due to the applicant's resignation.

Why the Board ruled this way

The Board remanded the case due to a potential jurisdictional issue regarding the applicant's resignation and whether the processing of the case should have ceased at that point.

On remand, the judge must

The Judge is to reopen the record to allow the parties to present evidence regarding the jurisdictional issue of the applicant's need for access to classified information at the time the decision was issued.

Appeal Board panel

Michael Ra’anan (Chair)
Charles C. Hale
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 B DIGEST: Applicant’s statement that he resigned from his job in January 2018 raises the issue of whether the processing of his case should have ceased at that point. Adverse decision remanded. CASENO: 17-03090.a1 DATE: 10/26/2018 DATE: October 26, 2018 In Re: ------------------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 17-03090

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 September 29, 2017, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On August 21, 2018, after considering the record, Administrative Judge Shari Dam denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. For reasons set forth below, we remand the case to the Judge. In his appeal brief, Applicant states, “I contest issues pertaining to ‘Foreign Influence.’” Appeal Brief at 1. He then proceeds to discuss his ties to a foreign country. In doing so, he neither challenges any of the Judge’s findings of fact nor raises any other allegations of error on the part of the Judge. However, he states that he resigned his job with the employer who was sponsoring him for a security clearance in January 2018, which was the same month that Department Counsel issued the File of Relevant Material and about seven months before the decision in this case was issued. Although neither party raised subject matter jurisdiction as an issue in this case, it can be raised sua sponte by the Board, which is authorized to consider and resolve the threshold issue of whether there is subject matter jurisdiction to adjudicate a particular security clearance case under the Directive. See, e.g., ISCR Case No. 08-09776 at 2 (App. Bd. Sep. 11, 2009). The Directive provides that actions commenced pursuant to it “shall cease upon termination of the applicant’s need for access to classified information except in those cases in which . . . [a] hearing has commenced . . . [a] clearance decision has been issued; or . . . [t]he applicant’s security clearance was suspended and the applicant provided a written request that the case continue.” Directive ¶ 4.4. Applicant’s statement that he resigned from his job in January 2018 raises the issue of whether the processing of his case should have ceased at that point. See, e.g., ISCR Case No. 05-04831 at 2-6 (App. Bd. Nov. 29, 2006). Given the paucity of evidence in the record on this jurisdictional issue, the appropriate course is to remand the case to the Judge for additional proceedings so that the parties have an opportunity to address this matter. Therefore, we remand the case to the Judge to reopen the record to allow the parties to present evidence as to the facts and circumstances regarding the jurisdictional issue outlined above, including the question of whether Applicant still possessed a need for access to classified information at the time the decision was issued.

ORDER

The Judge’s adverse decision is REMANDED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board