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ISCR 22-00705: Guideline F security clearance appeal (2024) · CASE

ISCR Case 22-00705unknown

Case headnote

ISCR Case No. 22-00705

Mar 26, 2024· Hon. Gregg A. Cervi· appeal

Summary

This case involves an applicant, represented by counsel, whose security clearance was initially denied under Guideline F, Financial Considerations. The applicant appealed this decision.

The appeal board determined that the judge had not taken into account evidence that was submitted in a timely manner by the applicant. Consequently, the board remanded the case.

The remand instructs the judge to reopen the record, allowing the applicant to submit additional documents for consideration. The outcome of the security clearance decision is currently none, pending this further review.

Procedural posture

SOR issuedSep 15, 2022
Answer filed—
Hearing heldJul 5, 2023Record held open until July 19, 2023, extended to July 28, 2023.
Decision dateMar 26, 2024Decision 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· Full written decision

Remanded

The appeal concerned the denial of a security clearance based on financial considerations. The Applicant argued that the Judge failed to consider timely submitted evidence. The Board found merit in this claim and remanded the case for further proceedings to include the missing evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowCharles C. Hale denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Erroneous finding of fact, raised by the applicantError sustained
The Judge failed to consider documentary evidence that was timely submitted but not included in the record.

Why the Board ruled this way

The Judge did not include all submitted evidence in the record, which may have affected the decision.

Missing findings

On remand, the judge must

The Judge shall reopen the record to provide Applicant an opportunity to submit AE U–Z and issue a new decision in the case.

Standard of review applied

Harmful-error gatekeeperProcedural compliance

Appeal Board panel

Moira Modzelewski (Chair)
James B. Norman
Gregg A. Cervi

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

APPEARANCES

_______________________________________________ ) In the matter of: )

)

----- )

ISCR Case No. 22-00705

)

) 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

APPEAL BOARD DECISION

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