SECURITY CLEARANCE DENIALS

THE PROCESS FOR OBTAINING A HEARING AFTER A DENIAL

  • When the Defense Security Service (DSS) or Office of Personnel Management (OPM) denies an employee’s Security Clearance, there are procedures that allow the federal employee or government contractor employee to appeal the decision. This is done through a hearing before the Defense Department’s Office of Hearings and Appeals (DOHA) or before the issuing federal employing agency to review his or her Security Clearance matter.
  • Federal employees have the right to appear in person before an administrative judge to plead their case in a proceeding known as a Personal Appearance.
  • The Defense Office of Hearings and Appeals (DOHA) is in charge of conducting industrial Security Clearance reviews for people who would like to appeal a Security Clearance denial.
  • Once an individual receives a Statement of Reasons (SOR), he or she will be given 20 days to respond. An extension for response may be granted upon request.
  • If the applicant wishes to appeal the denial, he or she can ask for a review by an Administrative Judge based only on the applicant’s file or request a hearing. The request for a hearing must be made in the response to the Statement of Reasons (SOR).
  • DOHA considers the Statement of Reasons (SOR) analogous to a civil court complaint or criminal indictment. DOHA is not legally allowed to render a decision based on grounds not alleged in the SOR.
  • A DOHA Administrative Judge will preside over the hearing and will ultimately make the decision regarding your case.
  • The hearing will be held in a metropolitan area near where you live or work.
  • Department Counsel (an attorney) represents the Government will present evidence and arguments supporting the allegations made against you in the Statement of Reasons (SOR). Before the hearing, the Department Counsel will send you a copy of the documents that will be presented to the Administrative Judge to support the allegations in the Statement of Reasons. Likewise, after a hearing is requested, the applicant will need to exchange all the documents the applicant wishes to present at the hearing with the government before it takes place.
  • Hearings are usually conducted like federal district court bench trials and will require testimonies from the applicant in addition to possible character witnesses.
  • An applicant can bring to the hearing any witnesses or written evidence that he or she would like the Administrative Judge hear or consider.
  • The applicant needs to clearly make his or her case as to why he or she is entitled to a Security Clearance. The law is that DOHA is required to err on the side of denials.
  • A decision can take several months.
  • When it comes to a serious legal proceeding like a Security Clearance hearing, it is essential that you have the legal support from an attorney. The attorneys at the Veterans Legal Center have the skill and experience necessary to effectively handle all the aspects of your security clearance hearing.

For Security Clearance cases (involving both industrial Security Clearances or federal employee) through the Department of Defense (DoD), the adjudication of a clearance can be conducted either by:

  1. An Administrative Judge review of the applicant’s relevant file known as File Of Relevant Material (FORM).
  2. The Applicant presenting a case at a hearing/appearance before an Administrative Judge.
  • Unless there is a compelling interest to the contrary, it is always best that you elect to present your case live before an Administrative Judge through your appearance at a hearing. The hearing gives the applicant a chance to argue against the Security Clearance denial.
  • Congressional testimony before the Senate Armed Services Committee involving Industrial Security Clearance cases (i.e., Defense Contractor employees) reports that Department of Hearings and Appeals (DOHA) Administrative Judges deny clearances in approximately 85% of the cases where no hearing is involved. In cases where the applicant requests a hearing before an Administrative Judge, the chances are 25% better with Clearances denied 60% of the time.
  • Either losing party (the Applicant or the Government) can appeal the Administrative Judge’s decision. In cases where the Administrative Judge has granted a Clearance, and the government appeals the Administrative Judge’s decision, on appeal the Appeal’s Board denies the Clearance approximately 70% of the time. In cases where the Administrative Judge has denied the Clearance, and the applicant appeals, on appeal the Appeals Board grants a Clearance in fewer than 2% of the cases.
  • The conclusion is inescapable. The best chance a person has to get or keep a Clearance is to request a hearing and present their case before the Administrative Judge.
  • Good representation at the hearing before the Administrative Judge will make a critical difference. If the Administrative Judge turns an applicant down at the hearing stage, the negative decision can be appealed.

It is fairly common for security clearance applicants to receive a Security Clearance denial, particularly on their first try. An applicant who has been denied a security clearance need not feel like he or she is unqualified for a position requiring a security clearance.

It is understandable that the government agencies that issue such clearances err on the side of caution when considering whether to entrust access to classified information to any individual.

  • Foreign influence
  • Foreign preference
  • Personal conduct
  • Financial and credit history
  • Drug and alcohol use

A Statement of Reasons (SOR) or Letter of Intent to Deny/Revoke(LOD) is a written statement from a government agency informing a Security Clearance applicant that he or she will not be granted Security Clearance or why his or her Security Clearance will not be continued and why the unfavorable administrative action is being taken.

The term Statement of Reasons (SOR) is used in industrial Security Clearance cases. The term Letter of Intent to Deny/Revoke (LOD) is used in federal employee cases. Reasons for denial will vary depending upon each person’s specific circumstances, but may involve such things as family in a foreign country, a criminal record, or past contact with illegal controlled substances.

After being denied a Security Clearance, you have a right to request a hearing before an Administrative Judge where you will have the opportunity to present your case during a security clearance hearing.

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