By John V. Berry, Esq., www.berrylegal.com
The security clearance appeal process seems to be constantly changing as laws and regulations are updated in response to current events. News events, like the Edward Snowden matter and others have caused additional scrutiny on the security clearance process itself and no doubt will be the cause of additional changes to the security clearance appeal process in the future. Our law firm practices security clearance law and this article provides an update on the security clearance appeals process for federal employees and government contractors.
Following a security clearance denial there are a number of appellate options for federal employee and government contractors. The security clearance process generally unfolds as follows:
The Statement of Reasons (SOR)
The Statement of Reasons (SOR) is the centerpiece of any security clearance case. The allegations contained within the SOR will be the start of any legal defense to the issues raised. When we meet with potential clients who have been issued an SOR we first go over the allegations in depth, find out whether any or all of the allegations are true and whether there are any mitigating factors to the security concerns. A high level of detail is needed at this point in order to fully respond to the SOR. Following the SOR, the process moves to the response and appeals stage, depending on where an individual is employed.
Clearance Appeals Process for Federal Employees
For federal employees, the SOR is the start of the clearance review process. Generally, the next step, depending on the individual federal agency involved is for the individual to respond to the SOR through the individual agency and the Department of Defense Central Adjudication Facility (DoDCAF) (other federal agencies like CIA, NGA, DOE, etc. have their own separate appeals processes).
Generally, a federal employee will respond to a Letter of Intent to Deny a Security Clearance (LOI), which is attached to the SOR. The federal employee then has the opportunity to rebut the allegations in the SOR to a security clearance adjudicator in writing. If the adjudicator agrees with the federal employee’s written response the matter is then resolved and the person is granted their security clearance. If not, the next stage is for the federal employee to appeal the adverse decision.
A federal employee’s appeal of an adverse decision by DoDCAF is completed either by requesting a decision from their agency’s personnel security appeals board (PSAB) or by requesting the appointment of an administrative judge (and a hearing) from the Defense Office of Hearings and Appeals (DOHA). As we recommend for government contractors, we also generally recommend that a federal employee appeal an adverse clearance decision from DoDCAF to DOHA first. The DOHA administrative judge will then hold a hearing, permit an individual to present evidence and examine witnesses and will then issue a recommended decision which will then go to the PSAB for consideration. The PSAB, generally consisting of 3 members, will then vote on whether or not to grant the security clearance. Generally, it is better to have a full record before the PSAB in order to provide the best chance of success.
Clearance Appeals Process for Government Contractors
For government contractors, the process of rebutting an SOR is a bit different. A government contractor will generally have the option of responding to the SOR in writing or through a personal appearance before an administrative judge at the DOHA. We generally advise government contractors that the best approach to such appeals is to request a hearing before an administrative judge. We have found in many cases that live testimony can potentially make the difference between obtaining or not obtaining a positive result regarding their security clearance.
If a written appeal (no hearing) is made, then DoDCAF will send the applicant a File of Relevant Material (FORM) which will contain the evidence against them in obtaining a clearance and they will then have the opportunity to respond in writing to the FORM. However, if one elects an administrative judge and hearing, there will be the opportunity to present all of an individual’s evidence in support of maintaining or obtaining one’s clearance and to fully examine witnesses to attempt to mitigate existing security concerns. If the hearing goes forward, the administrative judge will then review the evidence presented and will then issue a decision. If no response is elected or made, the contractor’s security clearance will be denied.
If an adverse clearance decision is made, either in response to the written record or by an administrative judge, then the individual will have the opportunity to appeal the decision to the DOHA Appeal Board. Following the ruling by DOHA or the DOHA Appeal Board, the decision is generally final and not subject to further appeal. Following the DOHA decision, the contractor’s employer is notified of the decision about the security clearance and the procedures for later attempting to obtain a security clearance are provided.
When facing a security clearance appeal it is important to obtain legal representation in order to provide the best opportunity to maintain or obtain an individual’s security clearance. Our law firm stands ready to represent and advise individuals on appeals issues in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.