For a significant number of jobs requiring a security clearance, the ability to obtain an interim clearance is a condition of employment. The issue is moot if the selectee already has a security clearance (or at least favorably adjudicated eligibility for one), but that isn’t always the situation. For those who don’t, the ability to obtain the interim clearance is thus literally the difference between a paycheck and the unemployment line.

With so much at stake, the opaqueness of the interim security clearance process can be understandably frustrating.  Here is what anyone pursuing an interim clearance should understand:

INTERIM SECURITY CLEARANCE IS A RISK MANAGEMENT DECISION

In a perfect world, interim clearances would be unnecessary because the government would be so efficient and timely in the background investigation and adjudication process that a final eligibility decision could be made in a matter of a few weeks.  Unfortunately, that is far from the case. Because the government doesn’t typically have the luxury of waiting the months to years it takes for a final eligibility decision to fill an open position, some compromise must be made. That compromise is the interim clearance.

Fundamentally, an interim eligibility determination is a risk management decision. It is made based upon a review of the SF-86 and some preliminary database checks; no real “investigation” is conducted. If the subsequent background investigation unearths potentially disqualifying information that the government was unaware of previously, the interim clearance can be revoked immediately and without any due process.

DENIAL OF AN INTERIM CLEARANCE AFFORDS NO APPEAL RIGHTS

Regardless of whether an interim clearance is granted and subsequently revoked or simply denied outright, there is no right to challenge that decision.  Only upon a final, unfavorable eligibility decision do the administrative due process rights afforded by Executive Orders 12968 and 10865 kick in.  While this may seem unfair given the potential repercussions to the applicant, the courts have consistently held that the Executive Branch has wide latitude in administering its personnel security program.  The only “due process” to which an applicant is entitled is whatever administrative due process the President decides to afford[1].

DENIAL OF AN INTERIM CLEARANCE IS NOT REPORTABLE

If there is any silver lining to the denial of an interim clearance it is that such a denial is not considered a “denial” within the meaning of the SF-86 form.  In other words, the denial of an interim security clearance is not reportable on future security clearance applications.

MANY PEOPLE WHO ARE DENIED AN INTERIM CLEARANCE ULTIMATELY RECEIVE THEIR FINAL CLEARANCE

Finally, it is worth knowing that the denial of an interim security clearance doesn’t always mean that the applicant will ultimately be denied the final clearance. Many interim denials occur because adjudicators simply do not have enough information to make a risk management decision or are left with concerns that can be mitigated once a more complete, “whole person” picture of the applicant has emerged following a background investigation. Unfortunately, an applicant who is terminated by their employer prior to that final eligibility determination being made will not be afforded the opportunity to receive a final decision or avail him/herself of any subsequent appeal rights. That’s due to a policy called “loss of jurisdiction”, whereby the government declines to continue expending resources on an applicant who is no longer being sponsored for a clearance.

Fortunately, there is much that can be done before the SF-86 is submitted – for example, effectively utilizing the comments section on the SF-86 to provide mitigating information – that may increase the applicant’s chances of success.

 

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

[1] There is almost certainly an exception for Executive Branch security clearance decisions which violate constitutionally-guaranteed protections (e.g. denial of clearance based upon color of skin or religion) but that remains – incredibly – an unsettled area of law.

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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