Appealing a Denial or Revocation of a Clearance
Don’t face a security clearance denial or revocation alone. Let an experienced attorney guide you through the process.
Failure to obtain or losing a severity clearance can be devastating since the clearance is usually essential to employment and advancement. Before a clearance is denied or revoked, the adjudicator sends notice to the applicant or holder of the clearance in the form of a Letter of Intent (LOI).
Statement of Reasons Outcomes
The LOI contains an enclosure called the Statement of Reasons (SOR) that enumerates the specific reasons for the proposed adverse action on the clearance. For a favorable outcome, the respondent must address each item on the SOR to the satisfaction of the adjudicator. Our experienced attorneys can draft a complete response to give you the best chance at a favorable outcome. Generally, the response takes one or a combination of three forms.
- The information contained in the SOR is erroneous. For example, the SOR consists of adverse, erroneous information on a credit report or mistaken identity in a criminal background check.
- The information contained in the SOR is accurate, but it does not meet the threshold to deny or revoke a clearance.
- The information in the SOR is accurate and the adjudicator could deny or revoke the clearance, but there are extenuating or mitigating circumstances. For example, the adverse financial information is correct, but the issue has been settled or there is a credible plan to address the issue.
Appeal Decisions
An individual whose security clearance has been denied or revoked by the Department of Defense (DoD) Consolidated Adjudications Facility (CAF) or another adjudication facility has the opportunity to appeal the decision.
The process for doing so differs between military and civilian personnel and contractors. Executive Order 12968, “Access to Classified Information,” prescribes the process for military and civilian personnel. Executive Order 10865, “Safeguarding Classified Information Within Industry,” outlines the process for contractors. In each case, speaking with a qualified attorney upon notice to deny or revoke a security clearance may be the difference between obtaining or keeping the clearance-or not.
For contractor personnel, the denial, revocation and appeal process are the responsibility of the Defense Office of Hearings and Appeals (DOHA). The individual may request a hearing before a DOHA administrative judge in order to provide additional, relevant information and will have the opportunity to cross-examine witnesses. Upon completion of the hearing, the administrative judge will render a decision. If the decision is to deny or revoke the security clearance, the individual has the opportunity to appeal the decision to the Appeal Board. The Appeal Board will review the case file and render its decision. This decision is final and concludes the appeal process.
Conclusion of Appeal Process
At the conclusion of the appeal process, an individual whose security clearance has been denied or revoked may not reapply for a security clearance for one year from the date of the final decision. The individual may reapply for a security clearance through his or her employing activity if there is a need for access to classified information. The individual is responsible for providing documentation that the circumstances or conditions which resulted in the denial or revocation have been rectified or sufficiently mitigated to warrant reconsideration. The Department of Defense (DoD) Consolidated Adjudications Facility (CAF) or an adjudication facility may accept or reject the reapplication.
In addition to national security determinations, applicants and personnel may be subject to credentialing and/or suitability or fitness determinations. The policy and regulations under which these determinations are made varies by position type as do the procedures that are followed in the event of an unfavorable decision. If an appeal process is available, notification of the process and the requirements for appealing will be provided by the adjudicating agency. Questions about which process applies or how the process works should be directed to your agency.
For example, for positions in the competitive service, positions in the excepted service that non-competitively convert to the competitive service, or career appointments to the Senior Executive Service, when a suitability action is taken in accordance with title 5, Code of Federal Regulations part 731, the individual can appeal the decision to the Merit Systems Protection Board. The adjudicating agency will provide written notice of the decision and include the requirements for filing an appeal.
- PO1 L.R.