Security Clearance Appeals Process

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If you are reading this article, you've probably received some form of notice to the effect that your security clearance application or clearance status is in trouble.

1. Bad Answers on Forms; A common Problem.

There is a chance you have a security clearance problem because your completion of a required form was sloppy and omitted or misstated facts. Sometimes this is due to confusion (some questions are not clear), sometime to haste in completing a lengthy form, or sometimes an applicant makes a conscious election to read an ambiguous question in a way that they thought would keep them out of trouble but only got them into trouble. These cases wouldn’t have happened had the prospective Applicant had early counseling.

• Beware of inconsistencies that require further investigation. For example, an applicant may neglect to list something that was on an earlier form, such as a full list of kin. Or an applicant may understand a word to have one meaning where it can have multiple meanings, such as the case of a woman who was asked where her parents resided and responded “Iran” when in fact they resided in the United States but happened to be visiting Iran at the time.

• Be sure that when you properly supplement a response to a national security questionnaire during a subsequent personal interview or polygraph, you are proactive and pre-emptive in doing so and dispell any inference of an intent to deceive in how the questionnaire was completed. If you don't, the examiner may conclude that what appeared to be a minor issue is not so minor. For example, an applicant might have reported on a security form that he or she was never arrested, when they in fact were arrested as a minor, but the arrest record was sealed or expunged. Or an applicant might report that they used an illegal drug once and then, in questioning, conceded that they used the drug several times. In these instances, a prudent initial-level clearance officer will set the matter for a more deliberative decision process. Meaning the Applicant will face an appeal.

Even if you take care with your forms there may be facts that simply demand a deliberative process beyond the first level. This doesn't mean you have no hope; the very conservatism that tends to incline lower-level review officers to flag problems and start the appeals process can in many cases be effectively neutralized by the orderly presentation of additional information and argument. Before discussing how that works, a brief review of the law concerning the appeals process is warranted.

2. Rights on Appeal Generally

The modern formal security clearance process is the result, first, of a Supreme Court decision, Greene v.McElroy, 360 US 474 (1959), which rejected the prior process based on its lack of defined standards or opportunity for an involved individual to present evidence, and second of a series of executive orders and agency regulations implementing processes that are intended to comply with the Greene case while satisfying administrative concerns for efficient and effective screening and hiring systems. The "granddaddy" executive order, Executive Order 10865, which provided for hearing opportunity and some ability to confront and cross-examine witnesses to rebut a case against granting clearance, was issued a year after Greene by President Eisenhower.

By the standards of civil court actions, these rights are extremely limited. They do not protect against bad decisions made on misinformation and hunches and there is effectively no court review. Hearsay is generally allowed so that, for example, the tribunal will consider the rantings of the petty tyrant you worked for ten years ago who, after you quit in disgust, lodged a "revenge" memorandum accusing you of violating company rules. In one notable case involving an applicant with family in Morocco, a friendly and peaceful tourist destination, the judge speculated that unidentified terrorists could sweep in from the mountains and kidnap the applicant's family, placing secrets of the US at risk. In fact, Morocco ranks with Finland and Iceland in terms of kidnappings and nations like the United Kingdom, Canada and Germany report more than 100 times the Moroccan kidnapping rate. (Actually the UK has over 500 times the Moroccan rate.) The reviews of adverse decisions are little better. What this means is that if you are going to appeal a proposed action or preliminary determination, you must start with a strong case and must present it in an organized and compelling manner that leaves no questions unanswered.

Some right of appeal is always better than none. We receive may inquiries from people who have been promised a job conditional on their obtaining a security clearance and then were told that since they did not pass the initial screening the job offer is revoked. There is little we can do in such matters; the reviewing agencies take the position that with the revocation of the offer there is no job requiring a security clearance. Since there is no need for the clearance, all processing on the clearance question ends. As to this group, there effectively is no security clearance case to address. (The lesson, if you are reading this before accepting such a job offer, is to secure the prospective employer’s promise that it will continue to sponsor you for the job through a review process if you are initially denied.)

We have been successful in security clearance appeals in securing the relatively rapid reversal of adverse security clearance actions. The key to that success lies in our early involvement in the review process and, of course, the cases we select based on our judgment of what stands a fair chance of successfully being appealed. Our knowledge of the area allows us to readily distinguish between the reasonable investment (for example, a client with a clean record denied a security clearance because of the examiner's poorly supported sense that he used "countermeasures" in a polygraph examination) and the long shot.

3. How Are Security Clearance Cases Adjudicated?

Security clearance proceedings are different from civil actions and different from each other, depending on who the Applicant works for. There are ten potential adjudication facilities in the Department of Defense alone and other agencies, such as the Central Intelligence Agency, have their own processes. We've worked on matters before Air Force Central Adjudication Facility; Army Central Personnel Security Clearance Facility; Department of the Navy Central Adjudication Facility; National Security Agency; Defense Intelligence Agency; Defense Industrial Security Clearance Office, Defense Office of Hearings and Appeals,.and the Central Intelligence Agency.

Wherever a case is heard, the core considerations are supposed to be the same. There are thirteen standards or “guidelines” against which Applicants are assessed. These are: Criminal Conduct; Security Violations; Misuse of Information Technology Systems; Allegiance to the United States; Foreign Influence; Foreign Preference; Sexual Behavior; Personal Conduct; Financial Considerations; Alcohol Consumption; Drug Involvement; Emotional, Mental and Personality Disorders and Outside Activities. The details of the standards change from time to time. In December of 2005, the White House issued new guidelines developed by a working group that slightly depart from the prior guidelines. The switch to these new guidelines has proven slow, the move is not wholly organized and sometimes (though with decreasing frequency by now) agencies have been found to be using the prior guidelines.

Because of the national security concerns underlying security clearance requirements, the clearance process and the standards for denial and revocation of clearances are all considerably stricter, government-centric, and more unforgiving than conventional legal standards applicable in other situations. The governing standard is whether the grant of a clearance is "clearly consistent" with the national interest, and at each stage of consideration the decisionmaker is to err on the side of denying clearance. Department of the Navy v.Egan, 484 U.S. 518, 531 (1988). This is a far cry from the "preponderance of the evidence" and the presumption favoing the defense in civil trials, and the focus is quite clearly on the national interest, not the affected individual or company.

The governing standard includes consequences that go beyond simply the incline of the hill an applicant must climb to prevail. There is, generally speaking, no right to jury trial and judicial review of adverse administrative decisions is so limited as to be virtually irrelevant. An example underscoring this point is a recent Department of Justice position paper that instructs that an individual who has good grounds to prove that his or her security clearance revocation was motivated by racial or sex discrimination will have no opportunity even to raise this claim in court, let alone seek damages and cure where discrimination exisits. Similarly, in our experience counsel may not be afforded access to the precise information on which the decisionmaking process has relied because, while the information may be useful in defense of a clearance, there is no national security need for affording counsel access to the restricted information. This is most troubling in light of our tradition of open justice and the right of confrontation. However, the government's position is that individuals in this system are in neither a criminal or civil process; they are simply being assessed by the holder of sensitive information to determine whether they may be afforded access to this information. In short, basic principles concerning the way we conduct ourselves in America may be relaxed or even give way for national security.

1. Industrial Security Clearance Cases

These typically involve security clearances of officers and employees of contractors doing business with the Department of Defense. If the reviewing agency is inclined to deny or revoke a clearance, it must, in accordance with DoD Directive 5220.6, issue a Statement of Reasons (SOR) identifying facts and applicable guidelines relevant to its inclination. This directive lists the thirteen general areas on which the security clearance assessment will focus. The Applicant is given a definite time-frame in which a response to the SOR must be provided if the decisions is to be contested, and is also invited to view the investigative materials on which the agency relies. Usually it takes longer to get the materials than the time frame allowed for the response, and our experience is that the deciding agency typically allows some extension of time to allow the Applicant to view the materials prior to responding.

Initial recommendations are by nature provisional and subject to relatively quick individualized review by supervisory staff prior to the formal DOHA appeal review process. At that stage the good faith, reasonableness and general acceptance of societal norms by the human beings who exercise first-tier supervision can play a very important role in relaxing or overturing adverse initial recommendations. We caution that the security laws are as they are, and sympathy for the individual who may be no risk, but also conceivably might be a risk, will not win the day. But the security laws do themselves incorporate standards of reasonableness to some degree, and here is where there may be room to change the proposed action.

If first-tier review does not result in relaxation or reversal of the adverse recomendation, and the applicant wishes to press the matter further, a considerably more lengthy formal DOHA hearing process before an Administrative Law Judge must follow. This process includes opportunities to appear and present evidence, to argue points of law relevant to the subject matter, and to supplement such presentations with written briefs. A transcript of the hearing will be prepared and the Administrative Judge will decide the matter based upon the formal record of the case by issuing a decision including findings of fact and conclusions of law.

Generally speaking, in the litigation context aggressive dismissal of an opponent's position is standard operating procedure. In our experience, acknowledging, addressing, and resolving of the identified governmental concerns is at least as effective at the early phase of review as is a standard defense grounded on complete rejection of the concerns raised. The best presentations on behalf of affected individuals or companies use both techniques, together, to develop an environment where imperiled security clearances can be saved. (For example, we have seen outrageous over-reliance on polygraph tests, which links below indicate are unreliable, but we recognize that polygraphs have become such a cornerstone of the evaluation process that we believe a general challenge to all such tests as a component of the investigatory process will close minds and inspire a defensiveness that will be counterproductive to a successful appeal.) We caution that this is an area where those finding themselves in this forest should seek skilled legal advice and representation at the earliest possible time, and not seek to test the review waters without such counsel.

In the first formal level of appeals, personal appearances and marshalled facts presented at hearing have proved to be more succesful than purely paper presentations. In fact, testimony before the Senate Armed Services Committee reports that for DOHA industrial security clearance cases (i.e., cases concerning defense contractor employees) clearances are denied in approximately 85% of the cases where no hearing has been requested, but in cases where a hearing is involved the denial rate drops to 60%.

2. Active Duty and DoD Civilian Personnel Security Clearance Cases

These cases are controlled by DoD Regulation 5200.2-R. They begin with a Letter of Denial or Letter of Intent to Deny/Revoke (LOD) the security clearance. As with SORs, the Applicant is afforded the opportunity to secure an investigative file on which the agency has relied. The Applicant is provided a very short time frame, typically within 10 days of receipt, to respond. Typically, the clearance is revoked and the case is put before an administrative officer. While there is a personal appearance opportunity, there is no “prosecutor” and no witnesses may be called. The sole government representative present will be the officer. The Applicant may provide written statements or other documentary evidence, make an oral statement and respond to questions from his or her own counsel (and the Administrative Judge). The officer will prepare a recommendation and forward it along with the record of the case to the service’s Personnel Security Appeal Board (PSAB) of the Central Adjudication Facility (CAF). That Board will either accept or reject the officer’s recommendation.

Because of the limitations on evidence, these proceedings typically require that the Applicant’s case be prepared well in advance. We believe the that the pre-hearing submission in these matters is critical. It should clearly and cogently lay out the case against the Applicant, the facts and documentary evidence responding to that case, and reasoned argument regarding how the probable facts should be weighed under the applicable guidelines.

3. Other Federal Agencies

These cases involve the denial or revocation of a security clearance to civilian employees of, and contractor employees for, other federal agencies other then DoD. This includes the CIA, the Department of Energy, the Department of Homeland Security (DHS), the Department of Justice (DoJ), NASA, and the Department of State (DOS). Like DoD military and civilian personnel cases, these cases typically begin with a Letter of Denial of or Letter of Intent to Deny (collectively LOD) the security clearance. Again the response time is very short – usually 10 days – and opportunity to view an investigative file is provided.

The case will then be set for an appearance before some kind of hearing officer or a “hearing” before an Administrative Panel. The hearing procedure may be quite circumscribed and amount to no more than opportunity to personally appear and explain one’s actions. Each agency establishes its own administrative “procedures” for these panels, while still relying upon the same “substantive” “guidelines” from DoD Directive 5220.6 for determining disqualifying and mitigating criteria in making the ultimate security clearance determination. For example, the CIA procedure typically begins with an appearance before a single individual, usually self-described as a reporter to decision-makers, in a small room where only the Applicant and his or her attorney may be present. The procedure with the Federal Air Marshals (FAMs) of the Transportation Security Administration (TSA) of DHS begins with an appearance before a “security appeals panel” where no witnesses may be presented but the Applicant can make a statement and be questioned. The appearance or hearing will be held at a place determined by the federal agency.

As with active duty and DoD civilian employee cases, the Applicant’s case should be prepared and submitted well in advance and should clearly and cogently lay out the case against the Applicant, the facts and documentary evidence responding to that case, and reasoned argument regarding how the probable facts should be weighed under the applicable guidelines.

Our security clearance lawyers handle cases nationally.

Our location in the Washington, D.C, area leaves us close to DOHA headquarters and the reviewing process.

CONTACT US ABOUT YOUR SECURITY CLEARANCE PROBLEM.