A decided public DOHA case, shown for research, not advice or a prediction.
ISCR Case No. 22-00705
Appeal BoardDecided Mar 26, 2024 · Administrative Judge Gregg A. Cervi · Appeal
Case headnote
Summary
The applicant, represented by counsel, faced denial of a security clearance due to financial concerns under Guideline F. The appeal board found that the judge did not consider timely submitted evidence and remanded the case for the judge to reopen the record and allow the applicant to submit additional documents.
Procedural posture
- SOR issued
- 2022-09-15
- Answer filed
- Hearing held
- 2023-07-05 Record held open until July 19, 2023, extended to July 28, 2023.
- Decision date
- 2024-03-26 Decision remanded by appeal board.
Cite for
- Failure to Consider Timely Submitted Evidence
- Remand for Reopening the Record
- Due Process in Security Clearance Proceedings
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
The appeal involved a denial of a security clearance based on financial considerations. The Applicant argued that the Judge failed to consider additional documentary evidence that was timely submitted. The Board found merit in this argument and remanded the case for further proceedings.
Descriptive structured reading of this decided, public Appeal Board decision: what the case says, not a prediction or advice.
Full decision
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Decision text, by section
Appearances
_______________________________________________ ) In the matter of: )
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ISCR Case No. 22-00705
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) Applicant for Security Clearance ) _______________________________________)
DEPARTMENT OF DEFENSE DEFENSE LEGAL SERVICES AGENCY DEFENSE OFFICE OF HEARINGS AND APPEALS APPEAL BOARD POST OFFICE BOX 3656 ARLINGTON, VIRGINIA 22203 (703) 696-4759 Date: March 26, 2024
Appearances
FOR GOVERNMENT Julie R. Mendez, Esq., Chief Department Counsel FOR APPLICANT Christopher Snowden, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On September 15, 2022, 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 January 10, 2024, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Charles C. Hale 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 the Judge failed to consider documentary evidence that was timely submitted but not included in the record. Consistent with the following, we remand the case to the Judge.
Applicant’s appeal brief contains matters from outside the record, which we are generally precluded from considering. Directive ¶ E3.1.29. We may, however, consider new evidence insofar as it bears upon questions of due process or jurisdiction. At hearing on July 5, 2023, the Judge admitted Applicant Exhibits (AE) A–T. At Applicant’s request, the Judge held the record open until July 19, 2023, to allow for the submission of additional documents. Tr. at 102. By email of July 7, 2023, Applicant requested and was granted an extension until July 28, 2023. Appeal Brief at 14–15. On July 28, 2023, Applicant submitted six documents by email, marked AE U–Z, and the Judge acknowledged receipt on July 31, 2023. Id. at 13–14. The record before the Appeal Board and email correspondence submitted with Applicant’s appeal support his claim that he submitted matters that were received but not included in the record. In his decision, the Judge refers only to AE A–T, and he does not mention either holding the record open or receiving additional documents after the hearing. Moreover, the record before the Appeal Board does not contain AE U–Z. Based on the above, we conclude the best course of action is to remand the case to the Judge to reopen the record to provide Applicant an opportunity to submit AE U–Z. 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 ¶¶ E3.1.28. to E3.1.35.
Order
The Decision is REMANDED. Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Chair, Appeal Board Signed: James B. Norman James B. Norman Administrative Judge Member, Appeal Board Signed: Gregg A. Cervi Gregg A. Cervi Administrative Judge Member, Appeal Board