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.
As a recent ClearanceJobs.com article referenced, the Department of Defense is now providing Common Access Card (CAC) holders the same measure of due process afforded to security clearance applicants – namely, the right to appeal a denial in most cases.
If you have applied for a CAC and received such a denial, here is what you need to know:
What is a CAC and How Does it Differ From a Security Clearance?
A CAC is the Department of Defense Personal Identity Verification (PIV) card required under Homeland Security Presidential Directive (HSPD) 12. That’s a lot of legalese that essentially translates to this:
It is identification that gives you access to federal or other secure facilities (e.g. ports).
A CAC is different than a security clearance in that the latter authorizes access to classified material, while the former only authorizes access to sensitive spaces. For example, working in construction on a military base probably would not require a security clearance, but it would require a CAC because a military base is considered sensitive space.
Conversely, if you have a security clearance, you can almost guarantee the need for a CAC (or your agency’s equivalent).
Why Fight a Denial?
In the post 9/11 era, millions of Americans require CAC’s as a condition of employment – including everyone who works on military bases. The reason for fighting a denial is simple, really: lose the CAC, lose your job. Once a CAC is denied or revoked, an applicant must wait a minimum of one (1) year before reapplying.
How Do I Fight a Denial?
DoD Instruction 5200.46 lays out the process by which those who are denied a CAC may appeal the decision. The process contemplates a two stage appeal, wherein applicants first respond to a letter of denial (LOD) issued by the employing DoD component or the Defense Office of Hearings and Appeals (DOHA), as may be applicable. If the applicant’s written response is sufficient to mitigate concerns, the CAC is granted. If the written response is insufficient to mitigate concerns, new federal civilian and contractor applicants may appeal the decision in writing to a three member panel.
Contractor employees whose CAC is being revoked instead have the option of appealing the revocation to DOHA in a formal hearing before a federal Administrative Law Judge. The added due process protections for current employees are based on the “property interest” that many employees have in a pre-existing job.
Can I/Should I Hire An Attorney?
If your CAC has been denied or revoked you are entitled to be represented by an attorney at your own expense. Before deciding to represent yourself, you should consider the ramifications of losing your case: loss of your job, loss of your livelihood, and the inability to work in most federal employee or contractor positions for at least a full year.
As with security clearances, many of these cases can be won with a nominal investment of finances and time. A competent security clearance attorney should be able to provide you with a good assessment of your chances at success before you ever shell out a dime.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
 There are some cases in which the applicant is denied on employment suitability grounds (see 5 C.F.R. § 731) or debarred from employment or contracting work for particularly egregious conduct. No right to appeal exists in those cases.