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ISCR Case 19-03991.a1 — CASE

ISCR Case 19-03991.a1unknown

Case Headnote

ISCR Case No. 19-03991.a1

Jul 6, 2021· Hon. Michael Y. Ra'anan· appeal

Summary

This case involved an applicant, representing himself, who sought a security clearance under Guideline B (Foreign Influence) due to family ties in Ukraine. The Department Counsel had raised Disqualifying Conditions AG ¶ 6(a), AG ¶ 6(b), and AG ¶ 6(c) during the initial proceedings.

The appeal board determined that the geopolitical situation in Ukraine had not been adequately addressed by the Department Counsel. This omission raised concerns regarding fairness and due process in the initial adjudication.

Consequently, the appeal board remanded the case for further examination of the current geopolitical situation in Ukraine. No final outcome on the security clearance decision has been reached.

Conditions Referenced

Disqualifying

AG ¶ 6(a)appliedForeign InfluenceThe Judge found applicable disqualifying conditions due to the applicant's family ties in Ukraine.
AG ¶ 6(b)appliedForeign InfluenceThe Judge noted the presence of heightened risk of foreign exploitation.
AG ¶ 6(c)appliedForeign InfluenceThe Judge acknowledged the potential for inducement due to the applicant's connections.

Key Rule Quoted

“These circumstances raise fairness and due process concerns.”

Procedural Posture

SOR issuedApr 10, 2020
Answer filed—
Hearing heldMar 18, 2021Applicant requested a decision on the written record.
Decision dateJul 6, 2021Appeal board remanded the case.

Cite For

Remand Due to Fairness and Due Process Concerns in Security Clearance Cases
Importance of the 'very Heavy Burden' Standard in Geopolitical Contexts
Impact of Inadequate Notice on the Applicant's Ability to Present Evidence.

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 decision by the Administrative Judge granting the Applicant a security clearance despite concerns under Guideline B regarding foreign influence due to the Applicant's connections in Ukraine. Department Counsel appealed, arguing that the Judge failed to apply the 'very heavy burden' standard in the mitigation analysis. The Board found that this issue was not properly presented to the Judge and remanded the case for further consideration.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowLeRoy F. Foreman — granted the clearance

Decided onthe written record

Guidelines belowGuideline B

What the Board reviewed

Legal error — raised by the Government (Department Counsel)Error sustained
Department Counsel argued the Judge erred by not applying the 'very heavy burden' standard in analyzing Applicant's mitigation evidence.

Why the Board ruled this way

The Board found that Department Counsel raised a significant issue regarding the application of the 'very heavy burden' standard for the first time on appeal, which raised fairness and due process concerns. The case was remanded for the Judge to address this issue appropriately.

Other

On remand, the judge must

The Judge shall reopen the record to address the issue of the 'very heavy burden' standard and issue a new decision in the case.

Standard of review applied

Harmful-error gatekeeperNo de-novo re-decisionProcedural compliance

Appeal Board panel

Michael Y. 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 B DIGEST: In her File of Relevant Material (FORM), which includes a request for the Judge to take administrative notice of facts concerning Ukraine, Department Counsel did not assert the “very heavy burden” standard should be applied in this case. Moreover, neither the FORM nor the administrative notice request contain arguments that the geopolitical situation in Ukraine is the equivalent of those in a hostile country. In other words, Department Counsel did not give Applicant or the Judge notice in the FORM of the Government’s position on this issue. Given this lack of notice, it is not surprising that Applicant did not submit any evidence or arguments to the Judge regarding this issue and the Judge did not analyze it. These circumstances raise fairness and due process concerns. This is an issue that should have been appropriately presented to the Judge for him to decide. Decision is Remanded. CASE NO: 19-03991.a1 DATE: 07/06/2021 DATE: July 6, 2021 ) In Re: ) ) -------------------------- ) ISCR Case No. 19-03991

) ) Applicant for Security Clearance ) )

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Andrea M. Corrales, Esq., Department Counsel FOR APPLICANT Pro se

TheDepartment of Defense (DoD)declined to grantApplicant a securityclearance. On April 10, 2020, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—securityconcerns 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 March 18, 2021, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge LeRoyF. Foreman granted Applicant’s request for a security clearance. Department Counsel appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The SOR alleged that Applicant’s wife, stepchild, and parents-in-law were citizens and residents of Ukraine, that his wife owned an apartment in Ukraine, and that he had contact with numerous Ukrainian and Russian nationals. The allegation asserting that Applicant had contact with Russian nationals was later withdrawn. The Judge concluded that various disqualifying conditions applied in this case and that Applicant mitigated the resulting security concerns. In her appeal brief, Department Counsel argues the Judge erred in failing to apply the “very heavy burden” standard in analyzing Applicant’s mitigation evidence. In support of her argument, she cites ISCR Case No. 14-02563 at 3 (App. Bd. Aug. 28, 2015) and contends that “widespread government corruption and instability and unrest at the hands of Russia in various parts of Ukraine” warrant the application of that standard. Appeal Brief at 13. See also ISCR Case No. 12-05092 at 5 (App. Bd. Mar. 22, 2017) in which the Board noted the security situation in Ukraine warranted a heightened level of scrutiny in the Judge’s mitigation analysis. We note that Department Counsel is raising this issue for the first time on appeal. In her File of Relevant Material (FORM), which includes a request for the Judge to take administrative notice of facts concerning Ukraine, Department Counsel did not assert the “very heavy burden” standard should be applied in this case. Moreover, neither the FORM nor the administrative notice request contain arguments that the geopolitical situation in Ukraine is the equivalent of those in a hostile country. In other words, Department Counsel did not give Applicant or the Judge notice in the FORM of the Government’s position on this issue. Given this lack of notice, it is not surprising that Applicant did not submit any evidence or arguments to the Judge regarding this issue and the Judge did not analyze it. These circumstances raise fairness and due process concerns.1 This is an issue that should have been appropriately presented to the Judge for him to decide. Based on the above, we conclude the best course of action is to remand the case to the Judge to reopen the record to address this issue. As provided in Directive ¶ E3.1.35, the Judge shall, upon remand, issue a new decision in the case. The Board retains no continuing jurisdiction over a remanded decision. However, a decision issued after remand may be appealed pursuant to Directive 1 This is the second time Department Counsel has sought on appeal to apply a “very heavy burden” standard when no such request had been made at the hearing level. In ISCR Case No. 19-01689 (App. Bd. Jun. 8, 2020), we declined to apply that standard or remand the case. Although we are remanding this case, we must note that this cannot become a practice in DOHA cases.

¶¶ E3.1.28. to E3.1.35. See Directive ¶ E3.1.35. Department Counsel has raised other issues that are not ripe for consideration at this time.

ORDER

The Decision is REMANDED. See Concurring Opinion Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board Concurring Opinion Of Administrative Judge Michael Y. Ra’anan I agree with the majority opinion in full. I note that the Judge correctly found three disqualifying conditions applicable which contain the presence of “heightened risk” of foreign exploitation, inducement, etc. It would be beneficial for the Judge’s decision after remand to discuss in detail how the presence of multiple aspects of heightened risk influenced his analysis. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board