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 many security clearance applicants, one of the trickier aspects of the SF-86 is how to answer question 25.2: “Have you ever had a security clearance eligibility/access authorization denied, suspended, or revoked?”

The question seems straightforward, until one considers the multitude of scenarios that could be considered a denial. I regularly receive phone calls with questions like this:

“I was denied an interim clearance, but ultimately granted the final clearance. Does that count as a denial?”

“My employer’s federal contract fell through while my clearance application was being processed. How does the government view the fact that they simply stopped processing my background investigation?”

“My tentative employment offer was withdrawn on ‘suitability grounds.’ Is that the same as a security clearance denial?”

Denial Means Denial

From a legal standpoint, the answer to these questions – and many other similar ones – is that the applicant can check “no” in response to question 25.2 on the SF-86. A security clearance denial or revocation occurs only upon completion of a security clearance investigation and final determination by an adjudicating authority that granting the applicant a security clearance is not “clearly within the national interest.” Before that ever happens, the applicant will be issued a Statement of Reasons (or similar document) outlining the security concerns and providing the applicant with the opportunity to respond. There is some measure of due process involved.

A denial of an interim security clearance is thus not considered a denial for the purposes of this question on the SF-86 (provided that the applicant is ultimately granted the final clearance). The government’s cancellation of a background investigation mid-stream is not a denial or revocation, because no final determination was ever made on the clearance either way. This same analysis applies to a situation where an applicant’s employment is terminated prior to a final adjudication on the security clearance (which is considered a “loss of jurisdiction” and/or an “administrative withdrawl,” depending upon the circumstances).

Security Clearance Suspension – You’ll Know if it happens

With respect to a security clearance suspension, a suspension only occurs where the individual already holds a clearance and receives formal notice by a supervisor and/or security official that the security clearance is being suspended pending investigation of an allegation of misconduct on the part of the clearance holder. There is little ambiguity surrounding a suspension: the clearance holder must be provided with formal written notice and would typically be escorted out of classified space with physical access privileges revoked. Suffice it to say, you’ll know it if it happens.

Suitability vs. a Security Clearance

Finally, applicants for federal employee positions should be aware that a “suitability denial” is different than a security clearance denial. Although the grounds for a suitability denial are often the same as a security clearance denial, they are governed by different laws and are treated differently for security purposes. Suitability denials typically occur where an applicant has been extended a tentative offer of federal employment and the employing agency subsequently discovers something that they believe would not make the applicant a “good fit” for the agency. For example, certain agencies have heightened suitability standard regarding marijuana usage that would otherwise not rise to a level of security clearance denial.

Each agency has a different process for handling appeals of suitability denials, but there are often significantly less due process rights afforded to the applicant – especially with the intelligence agencies. This can be a confusing area of the law. When in doubt seek the advice of a qualified security clearance attorney.

 

This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation. 

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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