Overview of the Security Clearance Appeals Process for Military, Civilian, and Government Contractors
Usually, a security clearance concern is raised at the investigation stage, following the applicant’s submission of the initial SF-86 or during the interview. There are numerous reasons as to why a security issue could develop. For instance, a security concern would be raised if an applicant did not disclose an arrest on the SF-86, which was subsequently revealed by the investigator. As another example, debt or other financial hardship could give rise to a security concern. Once security concerns are raised, they will be evaluated in order to make a determination as to whether or not the applicant should have access to classified information.
Evaluation of Security Concerns – DoDCAF
After a security concern is raised, a security review will be conducted by the agency adjudicator. The Department of Defense Central Clearance Facility (DoDCAF) acts as the agency adjudicator for most government contractors and civilian and military employees. DoDCAF is located in Fort Meade, Maryland, and is charged with processing security clearances for most federal employees and government contractors. DoDCAF will then review the case in order to determine whether a security clearance shall be granted or, alternatively, whether a Letter of Intent (LOI) to deny should be granted. Security clearances handles by other federal agencies, such as CIA, NSA, DIA, NGA, etc., follow a similar path at this point.
What is a Statement of Reasons (SOR)?
When a security clearance is not approved, the DoDCAF (or other agency adjudicator) will issue a Statement of Reasons (SOR). Prior to formally denying or revoking a clearance, the procedural guidelines require the federal agency to provide the applicant with a written Statement of Reasons (SOR). The SOR is the key document that must be reviewed and analyzed when attempting to prevent your security clearance from being denied or revoked.
In short, the SOR will explain the basis for the potential denial or revocation and will list the specific security concern(s) at issue as listed in the Adjudicative Guidelines. Below each specific security concern, the SOR will list the specific allegations of disqualifying incidents or conditions drawn from your investigative file.
The SOR will be accompanied by letter, which explains the procedure for formally responding to the SOR. In short, you will be required to submit a detailed written answer to the SOR under oath or affirmation, specifically admitting or denying each listed allegation.
Brett O’Brien Law, LLC practices security clearance law and represents both federal employees (military and civilian employees) and government contractors throughout the security clearance appeal process. It is important to keep in mind that the appeals process varies slightly depending on whether the individual is employed by a federal agency or as a government contractor.
Clearance Appeals Process – Military and Civilian Employees
For civilian and military employees, DoD Manual 5200.02, Procedures for the DoD Personnel Security Program, and Executive Order 12968, “Access to Classified Information,” proscribe the clearance appeals process.
Upon receipt of the SOR from DoDCAF, the first step for most federal employees is to notify DoDCAF of his or her desire to respond to the SOR. The federal employee will also want to decide at this stage whether or not they would like to obtain a copy of their investigative file and other documents that were relied on to support the adverse determination. We highly recommend that you request a copy of these records so that you can fully respond to the SOR and so that you can adequately address any errors in your file.
Although the time frame may vary depending on the agency, most employees have 30 days to respond to the SOR. Following receipt of the employee’s response to the SOR, the agency adjudicator (DoDCAF in most cases) will review the response and either: (1) grant the clearance; (2) ask for more information from the applicant; or (3) deny the clearance.
If the applicant is denied his or her clearance at this point, they will be sent a Letter of Denial (LOD), which will state the final reasons for the adverse decision and will advise the applicant of their right to appeal that determination. The federal employee would then either request a written decision (no opportunity for a hearing) from the Personnel Security Appeals Board (PSAB) or request a hearing before the an administrative judge (AJ) from the Defense Office of Hearings and Appeals (DOHA).
If the applicant does not request a Personal Appearance before an AJ, then the applicant will submit their written response, which will include additional documentary evidence in response to the remaining issues identified in the LOD directly to PSAB. PSAB is a three member board that will then decide whether or not to grant your security clearance. One member of PSAB will be from the personnel security field. The other two members will be from non-security fields. This is intended to ensure due process. The PSAB will then review the applicant’s response and make a final determination whether to grant or deny the security clearance.
If the applicant does request a Personal Appearance before an AJ, the applicant will submit their written response and additional documentary evidence to the DOHA AJ. The applicant will also then attend a hearing at which they will be entitled to present evidence and to examine witnesses. At the hearing, the applicant may be represented by legal counsel. The applicant will be expected to make an oral presentation and respond to any questions posed by their representative or the AJ. Following the hearing the AJ will recommend a decision to the PSAB for consideration. The AJ’s recommendation as well as a full transcript of the hearing will then be forwarded to PSAB for a final decision. The PSAB will then vote on whether to deny or grant a security clearance.
In the event that PSAB denies the issuance of the clearance, the appeal process will be closed. The applicant will have to wait at least one year from the date of the PSAB’s decision before requesting reconsideration.
Contractor Appeal Process
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Military & Civilian Employee Appeal Process
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Clearance Appeals Process – Government Contractors
For government contractors, the clearance process falls under DoD Directive 5220.6, Defense Industrial Security Clearance Review Program and Executive Order 10865, “Safeguarding Classified Information within Industry“. Usually, the government contractor will be provided with a letter of instruction from DOHA, enclosing the SOR, and will be asked to answer five questions. The SOR is issued to the applicant after a legal sufficiency review by a DOHA Department Counsel (DoD OGC). Your response to the SOR must be received by the DOHA within 20 days of the date you acknowledge receipt of it.
Following receipt of the contractor’s answer, DOHA can withdraw the SOR and grant a security clearance. Most cases, however, will instead move to the Personal Appearance or Written Appeal stage.
If a Written Appeal (meaning no hearing is requested by either the applicant or the Department Counsel), then the Department Counsel will send the contractor a File of Relevant Material (FORM). The FORM contains the evidence against the contractor that they must rebut in writing. The applicant has 30 days to respond to the FORM. The case will then be decided by the AJ on the basis of the written materials presented by both sides.
If the contractor elects a Personal Appearance before an AJ, they will have the opportunity to present evidence and examine witnesses. After the hearing, the AJ will review the evidence and then issue a final decision. The hearing will be held in a metropolitan area near where the applicant lives or works. The applicant can be represented by legal counsel. The Department Counsel represents the government and will present evidence and argument supporting the allegations made in the SOR. The applicant can bring any witnesses or written evidence they wish the AJ to consider. Once the hearing is complete, the AJ will issue a written decision.
The AJ’s written decision is based on findings of facts and conclusions of law and must be supported by the record. The standard the AJ applies is is the “clearly consistent with the interests of national security standard.” Pursuant to this standard, as set forth by the U.S. Supreme Court, security clearance determinations should err on the side of denials.
In the event of an adverse determination – whether in response to the written record or after a hearing, the contractor (as well as the Department Counsel) can appeal the adverse determination to the DOHA Appeal Board. On appeal, the DOHA Appeal Board will defer to the AJ’s credibility determinations.
The DOHA board is comprised of three DOHA lawyers and/or AJs. The DOHA Appeal Board can affirm, revise, or remand (send the case back to the AJ for further consideration). It should be noted that the DOHA appeal board has authority only over cases involving federal contractors and their employees. It does not have authority to hear security issues involving military members or civilian employees of the Department of Defense.