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ISCR Case 14-03753.a1 — CASE

ISCR Case 14-03753.a1denied

Case Headnote

ISCR Case No. 14-03753.a1

Sep 23, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance primarily due to concerns under Guideline F (Financial Considerations) and Guideline E (Personal Conduct). The denial stemmed from unresolved financial issues and personal conduct deemed inconsistent with security clearance standards.

The applicant's appeal was affirmed, upholding the denial. The Department of Defense Office of Hearings and Appeals (DOHA) maintained its jurisdictional authority, even though the applicant's employment status had changed.

Ultimately, the security clearance was denied based on the disqualifying conditions identified under Guideline F and Guideline E. Guideline J (Criminal Conduct) was also raised but was not the primary basis for the denial.

Conditions Referenced

Disqualifying

AG FraisedFinancial Considerations
AG EraisedPersonal Conduct

Key Rule Quoted

“DOHA’s authority to adjudicate an Industrial Security Clearance application is predicated upon the applicant’s need for access to classified information.”

Procedural Posture

SOR issuedOct 13, 2014
Answer filed—
Hearing heldMar 12, 2015First hearing commenced.
Decision dateSep 23, 2016Appeal affirmed.

Cite For

Jurisdictional Authority of DOHA in Security Clearance Cases
Impact of Employment Status on Clearance Adjudication
Financial Considerations as a Basis for Clearance Denial Under Guideline F

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

Affirmed

The appeal involved a security clearance denial based on financial, criminal, and personal conduct concerns. The applicant argued that DOHA lacked jurisdiction due to his employment status. The Board affirmed the decision, finding that jurisdiction was established when the hearing commenced, and the applicant did not raise any harmful errors.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJames F. Duffy — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline JGuideline E

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant asserted that DOHA lacked jurisdiction to issue the Decision.

Why the Board ruled this way

The Board affirmed the Administrative Judge's decision, concluding that DOHA had jurisdiction to issue the Decision despite the applicant's current employment status, as the hearing had commenced while the applicant was still sponsored by his employer. The applicant did not raise any other issues of harmful error.

Standard of review applied

No de-novo re-decisionNo new evidence on appealHarmful-error gatekeeper

Appeal Board panel

Michael Y. Ra’anan — Chair
James E. Moody
William S. Fields

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; Guideline J; Guideline E DIGEST: This case has an unusual history, including three hearings that occurred over the better part of a year, each with a different Judge DOHA’s authority to adjudicate an Industrial Security Clearance application is predicated upon the applicant’s need for access to classified information. Should that need be terminated, DOHA is divested of jurisdiction, and all actions pursuant to the Directive cease. There are three exceptions to this rule, one of which arises when the applicant’s need for a clearance terminates after “[a] hearing has commenced.” In that situation, DOHA can continue to process the case through the appeal, if any. In this case a hearing to adjudicate Applicant’s clearance commenced on March 12, 2015, at which time DOHA clearly possessed jurisdiction because Applicant’s employer sponsored him. Applicant’s employer did not take steps to separate him until months after that date, which was during pendency of the adjudication previously begun. That separation action did not divest DOHA of jurisdiction. The Judge was authorized to issue his Decision. This is true despite whatever Applicant’s current employment status may be.

CASENO: 14-03753.a1 DATE: 09/23/2016 DATE: September 23, 2016 In Re: ---------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-03753

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 October 13, 2014, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations), Guideline J (Criminal Conduct), and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).1 Applicant requested a hearing. On May 31, 2016, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge James F. Duffy 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 DOHA lacked jurisdiction to issue the Decision. Consistent with the following, we affirm. Applicant asserts that he no longer works for the sponsoring employer and that DOHA had no jurisdiction to issue a Decision. Department Counsel has provided a Reply Brief in which he argues that jurisdiction has attached. The briefs of the parties contain matters from outside the record. Normally, we cannot consider new evidence on appeal. Directive ¶ E3.1.29. However, we will consider new evidence insofar as it pertains to threshold issues such as jurisdiction or due process. See, e.g., ISCR Case No.14-00812 at 2 (App. Bd. Jul. 8, 2015). Because the parties’ briefs do not conflict regarding the dispositive facts, we do not need to remand the case for additional fact- finding. This case has an unusual and complex history, including three hearings that occurred over the better part of a year, each with a different Judge. The first hearing began on March 12, 2015. At that time Applicant’s employer sponsored him for a clearance. The Judge granted a continuance so that Applicant could obtain counsel. Tr., March 12, 2015, at 50. The hearing reopened on October 5, 2015, at which time Applicant’s employer still sponsored him for a clearance. Applicant failed to appear that this hearing and was found to be in default. Tr., October 5, 2015, at 17. His employer assigned him a separation date. Reply Brief at 5. Subsequently, the DOHA Director vacated the default. Id. Applicant’s employer advised DOHA that it was again sponsoring him for a clearance. Id. A hearing occurred on December 9, 2015, and the Judge issued his Decision as set forth above. DOHA’s authority to adjudicate an Industrial Security Clearance application is predicated upon the applicant’s need for access to classified information. Should that need be terminated, DOHA is divested of jurisdiction, and all actions pursuant to the Directive cease. Directive ¶ 4.4. There are three exceptions to this rule, one of which arises when the applicant’s need for a clearance terminates after “[a] hearing has commenced.” Directive ¶ 4.4.1. See ISCR Case No. 05- 04831 at 4 (App. Bd. Nov. 29, 2006) (“[S]ubject matter jurisdiction attaches by commencement of the actual adjudication phase of the proceedings[.]”) In that situation, DOHA can continue to process the case through the appeal, if any. In the case before us, a hearing to adjudicate Applicant’s request for a clearance commenced on March 12, 2015, at which time DOHA clearly possessed jurisdiction because Applicant’s employer sponsored him. Applicant’s employer did not take steps to separate him until several months after that date, which was during pendency of the adjudication previously begun. Therefore, that separation action did not divest DOHA of jurisdiction. We conclude that the Judge was authorized to issue his Decision, as are we to decide Applicant’s appeal. This is true despite whatever Applicant’s current employment status may be. Having so concluded, we note that Applicant has not otherwise raised an issue of harmful error. Our scope of review is limited to those cases in which the appealing party raises such an issue. Directive ¶ E3.1.32. Therefore, the Decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board

FOOTNOTES

1 The Guideline J allegations were subsequently withdrawn.