KEYWORD: Guideline H
DIGEST: Nothing in the remand order authorized the Judge to solicit or receive new evidence. 
The Judge cited no authority for her direction to Applicant to perform certain acts.  There is no
authority for the Board or the Judge to mandate drug testing.  The right to examine documents
produced by an opposing party for errors or irregularities is basic.  Where either the substance or
the appearance of fairness and impartiality are in doubt, corrective action must be taken. 
Favorable decision Remanded to a new Judge.
CASENO: 09-02839.a1
DATE: 10/29/2010
DATE: October 29, 2010
In Re:
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Applicant for Security Clearance
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ISCR Case No. 09-02839
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Richard A. Stevens, Esq., Department Counsel
FOR APPLICANT
Alan V. Edmunds, Esq.
2
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On September 15, 2009, DOHA issued a statement of reasons (SOR) advising Applicant
of the basis for that decision—security concerns raised under Guideline H (Drug Involvement) of
Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant
requested a hearing.  On February 23, 2010, after the hearing, Administrative Judge Mary E. Henry
granted Applicant’s request for a security clearance.  Department Counsel appealed pursuant to the
Directive ¶¶ E3.1.28 and E3.1.30.  The Appeal Board issued a remand decision, dated May 17, 2010,
instructing the Judge to issue a new decision correcting certain identified errors.  On July 30, 2010,
the Judge issued a Decision on Remand, again granting Applicant’s request for a security clearance.
Department Counsel appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30.
Department Counsel raised the following issues on appeal: whether the Judge erred by
exceeding the scope of the remand order and whether the Judge’s favorable decision is arbitrary,
capricious, or contrary to law.   
The Judge found that Applicant has a history of infrequent and sporadic use of marijuana
over a lengthy period beginning at age 14.  She concluded that Applicant reconsidered her marijuana
use and credibly stated an intention to abstain permanently.  The Judge concluded that Applicant’s
marijuana use was mitigated.  The Board summarized the Judge’s original findings of fact and
conclusions thoroughly in our prior decision, ISCR Case No. 09-02839 (App. Bd. May 17, 2010).
The thrust of the Judge’s findings and conclusions on remand are consistent with those in the prior
decision.
Department Counsel argues that the Judge did not comply with the requirements of the
remand order, insofar as the Judge reopened the record and solicited new evidence, which she then
considered in her remand decision.  The Board finds Department Counsel’s argument persuasive.
The Appeal Board has authority to remand a case to a Judge for the correction of errors.  “If
the case is remanded, the Appeal Board shall specify the action to be taken on remand[.]” Directive
¶ E3.1.33.2.  The case will then be assigned to a Judge “for correction of error(s) in accordance with
the Appeal Board’s clearance decision.  The assigned Administrative Judge shall make a new
clearance decision in the case after correcting the error(s) identified by the Appeal Board.” Id. at ¶
E3.1.35.  In this case, the Board’s remand order instructed the Judge to consider conflicts in the
record evidence, to consider the viability of a Guideline H mitigating condition in light of conflicting
evidence, and to consider the effect of character witnesses’ lack of knowledge about Applicant’s
history of marijuana use when weighing the evidence proffered by the character witnesses.  No
portion of the Board’s instruction directed or even suggested that the record be reopened for the
purpose of obtaining additional evidence.  
Without prompting from either party, the Judge issued a Remand Order, dated June 2, 2010,
wherein she stated, “Given that this case involves past drug use, Applicant is requested to submit
to a drug test within 48 hours of her receipt of this Order and to provide a written documentation of
the results of this test no later than June 23, 2010.”  On June 4, 2010, Department Counsel filed a
Motion to Rescind the Judge’s Remand Order, arguing that nothing in Executive Order 10865 or in
1They are identified in the record as Applicant’s Exhibits S and T.
3
DoD Directive 5220.6 provides an administrative judge with the authority to order an applicant to
undergo mandatory drug testing.  Applicant filed a response to Department Counsel’s motion on
June 10, 2010, wherein she argued that the Board’s Remand Order set no limitations on the Judge
regarding what portions of evidence the Judge was to review, and that the Judge’s Order of June 2,
2010 would not lead to the creation of new evidence but was merely allowing for a necessary
updating of evidence.  Applicant then filed a Motion to Re-Open the Record on June 14, 2010,
asking that the record be reopened to allow an updating of evidence in the form of drug test results
from after the date of the hearing.  Department Counsel filed a response opposing the motion on
June 15, 2010.  On June 17, 2010, the Judge issued a second Order, rescinding her Order issued on
June 2, 2010, and granting Applicant’s Motion to Re-Open.  The Judge directed Applicant to submit
a sworn affidavit concerning her drug use since the hearing and to submit a new drug test report
within 10 days of the receipt of the Order.  Applicant complied, and these two items were made part
of the record after remand.1  
In this case, the Judge exceeded the scope of the Board’s Remand Order by soliciting and
then receiving new evidence from Applicant through a process that was initiated by her issuance of
an order sue sponte.  As stated in a preceding paragraph, nothing in the Board’s Remand Order can
reasonably be construed as authorizing or even permitting a post-appeal expansion of the record in
this case.  The Judge cites to no authority that gives her the power to direct Applicant to perform
certain acts, post-hearing and post-appeal, the effect of which is the creation of new evidence to be
added to the record and considered.  There is no authority for the Judge or the Board to mandate
drug testing.  See ISCR Case No. 98-0066 at 4 (App. Bd. Aug. 28, 1998).  Similarly, there is no
authority for the Judge to order Applicant to produce evidence in the form of an affidavit that speaks
to her drug use.  A party is not entitled to have the case reopened to allow the introduction of
evidence that comes into existence after the close of the record.  See ISCR Case No. 00-0250 at 3
(App. Bd. Feb. 13, 2001).  The Judge has no authority to order the supplementation of the record
with evidence that comes into existence after the close of the record.      
Apart from a lack of authority and the language in the Directive, the Judge’s action in
supplementing the record evidence after the appeal process has begun runs afoul of the general legal
principle of finality.  As the Supreme Court has noted:
“Administrative consideration of evidence . . . always creates a gap between the time the record is
closed and the time the administrative decision is promulgated [and, we might add, the time the
decision is judicially reviewed]. . . . If upon the coming down of the order the litigants might
demand rehearings as a matter of law because some new circumstance has arisen, some new trend
has been observed, or some new fact discovered, there would be little hope that the administrative
process would ever be consummated in an order that would not be subject to reopening.”  Vermont
Yankee Nuclear Power Corp. v. Natural Resources Defense Counsel. Inc., 435 U.S. 519, 554-555
(1978)(quoting earlier Supreme Court decision).  
2The wording of the Judge’s June 17, 2010 Order strongly suggests that she adopted Applicant’s proposition
that the Judge had the discretion to review all relevant evidence and that this discretion was enhanced by the fact that
the record evidence in the case was “outdated” and “required updating.”  Even assuming that this supposed criterion for
expansion does not run afoul of the Directive, as well as the tenets of finality and fundamental fairness, it is wholly
undefined, subjective, unworkable, and therefore arbitrary and capricious.
3A review of the administrative record in this case reveals that Applicant’s counsel sent Department Counsel
copies of the documents they were submitting in response to the Judge’s June 17, 2010 Order and that this was done
contemporaneously with the submission of the documents to the Judge.  Notwithstanding this fact, and notwithstanding
the fact that Department Counsel did not subsequently raise specific objections to the form and content of the documents,
the actions of Applicant’s counsel were not the result of anything contained in the Judge’s June 17, 2010 Order, as the
order was completely silent on the issue of submitting the documents to Department Counsel for examination prior to
their admission.  The Judge’s error cannot be deemed harmless in that the effect of her silence on Department Counsel’s
subsequent actions cannot be known, and the Judge’s method of proceeding suggests that the Judge was working toward
a predetermined result. 
4
There is also the issue of fundamental fairness.  Applicants are entitled to receive their full
measure of due process under Executive Order 10865 and the Directive.  Applicants are not entitled
to relief that ignores or circumvents the pertinent provisions of Executive Order 10865 or the
Directive.  Furthermore, applicants are entitled to have the provisions of Executive Order 10865 and
the Directive applied in a fair, impartial and even-handed manner.  Ignoring the pertinent provisions
of Executive Order 10865 or the Directive to give an applicant the benefit of an expanded record
would have the practical effect of depriving other applicants of the fair, impartial and even-handed
application of the law to which they are entitled.2  
The Board also notes that the manner in which the Judge directed her Order to be carried out
was prejudicial to the procedural rights of Department Counsel.  After erroneously giving Applicant
the unilateral right to expand the record, the Judge compounded the error when she did not direct
that Department Counsel be given the opportunity to examine the documents proffered by Applicant
and raise any specific objections as to form or content that might directly affect admissibility or the
weight given to the evidence.  The right to examine the documents actually produced by the
opposing party for errors or irregularities is basic, notwithstanding the fact that the Judge in this
case, by denying Department Counsel’s objections to Applicant’s Motion to Re-Open, already
deemed the anticipated evidence relevant to the proceedings.3     
The Judge’s actions in expanding the record sue sponte and the particular manner in which
she proceeded, as described earlier in this decision, raise the issue of whether the Judge still retains
the substance and the appearance of fairness and impartiality.  The standard for determining bias is
whether the record of the proceedings below contains any indication that the Judge acted in a
manner that would lead a reasonable, disinterested person to question the fairness and impartiality
of the Judge.  See, e.g., ISCR Case No. 03-07245 at 3-4 (App. Bd. May 20, 2005).  Where either the
substance or the appearance of fairness and impartiality are in reasonable doubt, appropriate
corrective action must be taken.  See ISCR Case No. 98-0066 at 4 (App. Bd. Feb. 9, 1999).   The
Board concludes that such a situation exists in this case.  The proper resolution is to remand this case
to another Judge. The new decision should be based on the record as it existed at the time the Board
ordered the first remand, if both parties consent.  However, because credibility may be an important
5
issue in this case, if either party requests a new hearing, then the new Judge should convene one
expeditiously.       
Because the Board has reached a resolution of this case based on the issue of the Judge
expanding the scope of the remand order, the Board need not address the other issues raised by
Department Counsel.
Order    
In accordance with the Board’s preceding discussion, the Judge’s decision granting
Applicant a security clearance is REMANDED to a new Judge .
Signed: Michael Y. Ra’anan        
Michael Y. Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: Jeffrey D. Billett              
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: Jean E. Smallin                
Jean E. Smallin
Administrative Judge
Member, Appeal Board