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ISCR 08-09776.a1: Guideline F security clearance appeal (2009) · CASE

ISCR Case 08-09776.a1unknown

Case headnote

ISCR Case No. 08-09776.a1

Sep 11, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves an applicant who, representing himself, faced a security clearance denial under Guideline F (Financial Considerations). The denial was based on three delinquent debts, two of which were real estate mortgages, and the applicant's unemployment. His job loss was attributed to security concerns raised by his former employer.

The applicant appealed the denial, raising jurisdictional questions regarding the timing of his unemployment and the necessity of his access to classified information. The appeal specifically cited Disqualifying Condition F.3, while Mitigating Condition F.2 was applied.

Ultimately, the case was remanded for further proceedings, meaning no final security clearance outcome was reached at this stage.

Conditions referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts

Mitigating

F.2rejectedThe Conditions That Resulted in the Financial Problem Were Largely Beyond the Person's ControlThe applicant did not provide sufficient evidence of mitigation.

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.”
Directive ¶ 4.4.

Procedural posture

SOR issuedJan 14, 2009
Answer filed—
Hearing heldJul 13, 2009
Decision dateSep 11, 2009Decision remanded for further proceedings.

Cite for

Jurisdictional Questions Regarding Security Clearance Cases
Financial Considerations Under Guideline F
Remand for Additional Evidence on Jurisdictional Issues

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. The Applicant argued that the Judge ignored favorable evidence and that the decision was arbitrary and capricious. The Board identified a potential jurisdictional issue and remanded the case for further proceedings to clarify whether the Applicant still needed access to classified information at the time of the hearing.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJuan J. Rivera denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantNot reached
The Judge ignored record evidence favorable to Applicant.
Decision arbitrary, capricious, or contrary to law, raised by the applicantNot reached
The Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found ambiguities in the record regarding subject matter jurisdiction and determined that further proceedings were necessary to clarify these issues.

Other

On remand, the judge must

Reopen the record to allow the parties to present evidence regarding the jurisdictional issue, including whether Applicant still possessed a need for access to classified information by the time of the hearing.

Standard of review applied

No de-novo re-decisionNo new evidence on appealProcedural compliance

Appeal Board panel

Michael Y. Ra’anan (Chair)
Michael D. Hipple
James E. Moody

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: The record contains without explanation a document entitled “Person Summary” the contents which present the possibility of a subject matter jurisdictional question. Adverse decision remanded. CASENO: 08-09776.a1 DATE: 09/11/2009 DATE: September 11, 2009 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-09776

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se See Tr. at 64: “I’m no longer employed with [contractor] as of January [2009].”

The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On January 14, 2009, DOHA 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 July 13, 2009, after the hearing, Administrative Judge Juan J. Rivera denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge ignored record evidence favorable to Applicant and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. In addition, the Board raises a jurisdictional issue. For reasons set forth below, we remand the case to the Judge. The Judge found that Applicant has three delinquent debts, two of which are for real estate mortgages, for which he had not provided sufficient evidence of mitigation to warrant the grant of a security clearance. In addition, the Judge found that, after the issuance of the SOR, Applicant’s government-contractor employer (contractor) terminated his employment because of security concerns, and Applicant has been unemployed since then. Decision at 5. The record contains a document entitled a “Person Summary,” apparently obtained from the Joint Personnel Adjudications System (JPAS). This document states that Applicant left contractor’s employ in March 2009. The record contains no explanation as to if, when, or how the “Person Summary” was entered into the record. Although it is not consistent with Applicant’s hearing testimony as to the date he lost his job, both Applicant’s testimony and the JPAS document indicate that the job loss occurred well before the commencement of the hearing in this case. 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.” ISCR Case No. 02-24227 at 4 (App. Bd. Oct. 7, 2003). 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 testified that his former employer wanted to hire him back if he could get a clearance, and that it was “sponsoring” his efforts to obtain one. Tr. at 96. However, record evidence and the JPAS document permit a reasonable inference that DOHA had actually been divested of jurisdiction prior to the hearing and that further processing of the case should have ceased. Although the Board is authorized to resolve jurisdictional questions, due to the ambiguities presented by the record, the appropriate course is to remand the case to the Judge for additional proceedings. 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 by the time of the hearing. Other issues raised by Applicant on appeal are not ripe for adjudication.

ORDER

The Judge’s adverse security clearance decision is REMANDED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board