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ISCR Case 15-07050.a1 — CASE

ISCR Case 15-07050.a1unknown

Case Headnote

ISCR Case No. 15-07050.a1

Jun 8, 2017· Hon. James E. Moody· appeal

Summary

This case involves an applicant, represented by counsel, whose security clearance was denied by the Department of Defense under Guideline F (Financial Considerations). The applicant appealed this decision.

The appeal board did not issue a final outcome on the clearance itself. Instead, the board remanded the case, instructing that it be returned for further consideration. The primary reason for the remand was to determine whether the applicant had submitted post-hearing materials that were not addressed in the initial decision.

The board also noted that it could not resolve the applicant's assertions regarding the judge's consideration of evidence, as the board lacks the power to conduct fact-finding. Therefore, the case was sent back to address the unconsidered materials and allow for proper fact-finding on the evidence presented.

Key Rule Quoted

“Therefore, Applicant has raised an issue that we cannot resolve, insofar, as we have no fact-finding power.”

Procedural Posture

SOR issuedMar 9, 2016
Answer filed—
Hearing heldMar 17, 2017
Decision dateJun 8, 2017

Cite For

Remand for Further Consideration of Evidence Under Guideline F
Issues of Due Process in Security Clearance Cases
Limitations of Appeal Board's Fact-finding Authority

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 under Guideline F. The applicant argued that the Judge did not consider all evidence, specifically a post-hearing submission. The Board remanded the case for the Judge to determine the completeness of the record and to process any additional evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMatthew E. Malone — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

No specific harmful error alleged — raised by the applicantNot reached
Applicant asserted that the Judge did not consider all of the evidence.

Why the Board ruled this way

The Board found that the record may not be complete and that the Judge did not address all evidence presented, necessitating a remand for further consideration.

On remand, the judge must

Determine whether Applicant submitted post-hearing matters and, if so, for further processing.

Appeal Board panel

William S. Fields
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 F DIGEST: Applicant has made assertions that, if true, would suggest that the Judge did not consider all of the evidence. There is nothing in the record or in the decision to support or corroborate those assertions. Therefore, Applicant has raised an issue that we cannot resolve, insofar, as we have no fact-finding power. Adverse decision remanded. CASENO: 15-07050.a1 DATE: 06/08/2017 DATE: June 8, 2017 In Re: -----------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-07050 APPEAL BOARD DECISION AND REMAND ORDER

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Ryan C. Nerney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On March 9, 2016, 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 March 17, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Matthew E. Malone denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. As a threshold matter, a question exists about whether the record of this proceeding is complete. At the hearing, Applicant offered three exhibits (Ax A-C) that were admitted into evidence. The transcript reflects the record closed at the end of the hearing. Tr. at 69. In his decision, the Judge only refers to Applicant’s three exhibits. In the appeal brief, Applicant asserts that he submitted a post-hearing submission in January 2017, the Judge accepted the new documentation in early February 2017, but the Judge did not mention or take into account the new documentation in his decision.1 The record does not contain a post-hearing submission. As such, Applicant has made a representation from outside the record. As a general rule, the Board cannot consider new evidence on appeal. Directive ¶ E3.1.29. However, in the past, the Board has considered new evidence or assertions outside the record insofar as it raises questions of due process or jurisdiction. See, e.g., ISCR Case No. 12-02827 at 1-2 (App. Bd. May 8, 2014). Through his attorney, Applicant has made assertions that, if true, would suggest that the Judge did not consider all of the evidence. There is nothing in the record or in the decision to support or corroborate those assertions. Therefore, Applicant has raised an issue that we cannot resolve, insofar as we have no fact-finding power. See, e.g., ISCR Case No. 14-02394 at 2 (App. Bd. Aug. 17, 2015). Given these circumstances, the Board concludes that the best course of action is to remand the case to the Judge for determination whether Applicant submitted post-hearing matters and, if so, for further processing.2 Other issues raised by Applicant’s on appeal are not ripe for our consideration.

ORDER

The Decision of the Judge is REMANDED. Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy 1 In a footnote, Applicant refers to a letter sent to the Judge on January 31, 2017. 2 Failure to preserve a complete record is an error. Even if a submission is excluded from evidence, the Judge should marked it for identification and placed it in the case file. See, e.g., ISCR Case No. 03-08257 at 5 (App. Bd. Feb. 8, 2007). Administrative Judge Member, Appeal Board