KEYWORD: Guideline F
DIGEST: The Judge erred by failing to issue a clearance decision on remand. Case remanded.
CASENO: 17-03043.a2
DATE: 06/11/2019
DATE: June 11, 2019
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In Re: )
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----------------------- ) ISCR Case No. 17-03043
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Applicant for Security Clearance )
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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
January 16, 2018, 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 November 27, 2018, after the hearing, Defense Office of Hearings and Appeals (DOHA)
Administrative Judge Mark Harvey denied Applicant’s request for a security clearance.  Applicant
appealed pursuant to Directive ¶¶ E3.1.28. and E3.1.30.
At the hearing, the Judge read the contents of Applicant’s exhibits into the record and
returned them to the Applicant.  Those documents were not included in the record.  In a prior
decision on March 12, 2019,  we concluded the Judge failed to preserve a complete record which
impaired our ability to perform our review function.  We remanded the case to the Judge “to identify
the documents that Applicant desired him to consider and include these documents in the record.” 
 
In an undated document entitled “Remand Order,” the Judge noted, at p. 2, that “The four
documents are provided as directed by the Appeal Board.”  He also stated,  “The Appeal Board did
not ask me to take any action beyond the collection of the four documents” and, at p. 1,  “The
decision denying Appellant’s access to classified information remains in effect, subject to the
decision of the DOHA Appeal Board.”  On April 4, 2019, the Hearing Office sent to Applicant the
“Remand Order” with a cover letter that described the Judge’s product as an “unfavorable security
clearance decision.”  Applicant appealed the Judge’s Remand Order.  We accepted Applicant’s
Notice of Appeal.
In retrospect, the Appeal Board erred in accepting the Notice of Appeal (NOA).  Directive
¶ E3.1.28. provides that either party may appeal an Administrative Judge’s clearance decision.  We
have no authority to accept an appeal of a Remand Order.  Instead of accepting the NOA, we should
have referred the matter to the DOHA Director for appropriate corrective action.1  However, having
accepted the NOA and permitted the parties to submit briefs, we are issuing this decision.
The Judge erred by failing to issue a clearance decision.  Directive ¶ E3.1.35. provides:
Upon remand the case file shall be assigned to an Administrative 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.  The
Administrative Judge’s clearance decision after remand shall be provided to the
parties.  The clearance decision after remand may be appealed pursuant to items
E3.1.28. and E3.1.35., above. [Emphasis added.]
1The Board does not have supervisory jurisdiction or authority over the conduct of Department Counsel or
Hearing Office Administrative Judges.  See, e.g., ISCR Case No. 02-04344 at 3 (App. Bd. Sep. 15, 2003).
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Additionally, the DOHA Director’s Memorandum, dated March 12, 2019, which returned the case
to the Judge, stated that the case was remanded to him “to make a decision in accordance with the
Directive.”  The Judge was also required to comply with those requirements.
Directive ¶ E3.1.25. provides that “The Administrative Judge shall make a written clearance
decision in a timely manner setting forth pertinent findings of fact, policies, and conclusions as to
the allegations in the SOR, and whether it is clearly consistent with the national interest to grant or
continue a security clearance for the applicant.”  The Judge’s Remand Order fails to meet those
requirements of a clearance decision.
Given the circumstances, we conclude that we must remand the case to the Judge for issuance
of a new decision in accordance with the Directive.
Order
The case is REMANDED.  
Signed: Michael Ra’anan                
Michael Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: James E. Moody                 
James E. Moody
Administrative Judge
Member, Appeal Board
Signed: James F. Duffy                   
James F. Duffy
Administrative Judge
Member, Appeal Board
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