A decided public DOHA case, shown for research, not advice or a prediction.

ISCR Case No. 00-0009

Appeal Board

Decided Sep 26, 2001 · Administrative Judge Michael Y. Ra'anan · Appeal

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Appeal at a glance

The appeal involved a security clearance denial based on the applicant's possession of a foreign passport, as mandated by the ASDC3I memo. The applicant argued that the Administrative Judge erred in accepting the memo as binding and claimed insufficient notice. The Board affirmed the denial, finding no harmful error in the Judge's decision.

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Appearances

her the Administrative Judge's decision is arbitrary, capricious, or contrary to law because it is based on an August 16, 2000 memorandum issued by the Assistant Secretary of Defense for Command, Control, Communicatio

Procedural History

eign Preference), Guideline B (Foreign Influence), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct). The Assistant Secretary of Defense for Command, Control, Communications, and Intelligence (ASDC3I) issued a memorandum, dated August 16, 2000, entitled "Guidance to DoD Central Adjudication Facilities (CAF) Clarifying the Application of the Foreign Preference Adjudicative Guideline" (hereinafter "ASDC3I memo"). A hearing was held on October 30, 2000. At the hearing, Applicant was notified about and given a copy of the ASDC3I memo. The Administrative Judge issued a written decision, dated May 24, 2001, in which he concluded it is not clearly consistent with the national interest to grant or continue a security clearance for Applicant. The case is before the Board on Applicant's appeal

Appeal Issues

> <CENTER>Appeal Issue</CENTER> The Administrative Judge's findings and conclusions about the matters covered by SOR paragraphs 2 (Guideline B), 3 (Guideline E), and 4 (Guideline J) are not at issue on appeal. Accordingly, the Board need not address or consider those findings and conclusions to deal with this appeal. Relying on the ASDC3I memo, the Administrative Judge concluded Applicant's continued possession of a foreign passport mandated an adverse security clearance decision. On appeal, Applicant makes several, interrelated arguments: (1) the Administrative Judge erred by accepting the ASDC3I memo as legally binding; (2) the ASDC3I memo constitutes "secret law" that cannot be applied in Applicant's case; (3) Applicant was not given sufficient notice of the ASDC3I memo; and (4) Applicant's stated intention to allow his foreign passport to expire is sufficient justification for making a favorable security clearance decision in his case. Applicant's arguments raise the issue of whether the Administrative Judge's decision is arbitrary, capricious, or contrary to law because it is based on the ASDC3I memo.

Conclusion

BR WP="BR2"> Signed: Michael Y. Ra'anan Michael Y. Ra'anan Administrative Judge Member, Appeal Board <SPAN STYLE="text-d