Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com.
For the roughly five percent of security clearance applicants who find themselves facing a denial, the idea of an appeal is, well, appealing. I receive phone calls on a weekly basis from people inquiring about just that. Technically, however, the appeal is the last step in a three stage process. To better put the appeal stage in context, let’s take a look at the process as a whole:
Step One: The Statement of Reasons
The first step in fighting a security clearance denial is responding to a Statement of Reasons (also called a “Letter of Denial” or “Notification of Denial,” depending upon the federal agency in question). The Statement of Reasons tells the applicant the government’s exact concerns and allows the applicant an opportunity to respond in writing and hopefully mitigate those concerns. In some situations, the government will send the applicant a list of interrogatories (questions) to answer prior to issuing a Statement of Reasons. In either case, there are two important things to understand: (1) an effective response to the Statement of Reasons can result in the granting of a clearance without the need for a formal hearing – saving the applicant significant time and money; and (2) the applicant locks him or herself into a story (and thus a defense) with his or her response. Some applicants try to save money by responding to the Statement of Reasons themselves and then hiring an attorney to “fix things” at the formal hearing. Doing so severely limits the attorney’s effectiveness because the applicant has now boxed the attorney into his or her (sometimes inartful) answers. Ironically, fixing problems is also frequently more expensive than preventing them.
Step Two: The Administrative Hearing
In the Statement of Reasons response, the applicant will indicate whether s/he desires an in-person hearing before an Administrative Law Judge or wishes to have the Judge make a decision solely upon a review of the applicant’s file and the applicant’s written response. (This assumes that the clearance is not administratively granted by an adjudicator upon review of the Statement of Reasons response). With rare exception, I do not advise applicants to forgo the in-person hearing. The human connection is a powerful one, and personalizing the applicant for the judge often pays dividends.
Assuming an in-person hearing is chosen, it will typically be scheduled four to eight weeks out either in the Washington, D.C. area or at a federal building close to the applicant’s home. With slight variations depending upon the federal agency and the applicant’s position (employee vs. contractor), hearings are essentially mini court trials complete with a court reporter, government attorney, and witnesses. Applicants who underestimate the process find themselves unprepared for the serious nature of the proceedings. On the other hand, applicants who arrive at their hearing well prepared can often poke major holes in the government’s case and earn a favorable outcome. The trick is to be better prepared than the government’s attorney.
Step Three: The Appeal
In the event that the judge denies the applicant his or her clearance, the appeal is one final step the applicant can take. Unfortunately, there is a common misconception that an appeal is effectively an opportunity to re-litigate one’s case. It is not. Rather, an appeal is limited to challenging the judge’s decision based on technical grounds: for example, that the judge was mistaken in a point of law; that the judge exhibited improper bias against the applicant; that an item of evidence was erroneously admitted or not admitted into evidence; or, some other procedural irregularity of a similar nature. The judge’s findings of fact are generally binding on the appeals board (just as they would be in a traditional court), hence the inability to re-argue the facts – and the importance of getting things right the first time.
As you can see, the process for fighting a security clearance denial can be lengthy and challenging. Yet many people conquer it and emerge with both their security clearance and their dignity intact. As I tell my clients, “your past doesn’t have to define you.”
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.