If you find yourself facing a security clearance denial or revocation, one of the administrative due process rights of which you can avail yourself is a hearing, or “personal appearance.”
There are some nuanced legal differences between hearings and personal appearances, but for the purpose of this article we’ll consider both as an opportunity to present oral argument and evidence to a deciding official or administrative judge. This is a critical step in the appeal process, because it allows the deciding official or administrative judge to look you in the eye, assess your sincerity, and evaluate your credibility.
Favorable determinations regarding your candor, sincerity, and credibility are all critical components to winning your case if a positive outcome cannot be achieved solely with a written appeal and one of these traits is at issue in the proceedings (for example, the government is alleging that you lied on your SF-86 or that your promise to abstain from repeat drug use is insincere given the prior history). Character is best assessed, and the best impressions are often made, in person.
On the other hand, the significant majority of security clearance cases do not involve such fundamental questions of character. Common cases involving foreign influence, delinquent debts, and even mental health concerns can often be just as effectively challenged by appearing before the deciding official or administrative judge by video-teleconference (VTC), if your agency allows it.
VTC technology has improved significantly in recent years, and it can be far more practical for applicants stationed at far-flung postings to walk down the hallway to a VTC facility than incur the time and expense of traveling back to the United States or across the country. My office has previously represented clients in VTC proceedings from the U.S.-Mexico border, Japan, Korea, the Middle East, and Europe. Other than the time difference and occasional technology snafu, the arrangements have allowed for meaningful interactions between the applicant and the administrative judge or deciding official.
But before you settle solely on the convenience factor, keep in mind that you likely have a lot riding on the outcome of this process and may wish to carefully consider other factors. Among them: might an accent or language barrier make appearing in person a smarter choice? Do you have evidence to provide or explain that is best (or can only be) presented in person? Does your case require discussing classified information which cannot be accomplished by VTC?
Assuming the answer to all these questions is “no” and your case doesn’t rest on the administrative judge or deciding official’s assessment of your character, a hearing by VTC may be a perfectly reasonable solution. However, if you answered “yes” to any of these questions or the case does involve fundamental questions of character, you shouldn’t underestimate the value of showing up in person.
Finally, applicants should bear in mind that not all agencies currently offer the opportunity for a hearing or personal appearance by VTC. The Departments of Defense and Energy, and most components of the Department of Homeland Security do currently offer applicants a VTC option. CIA, NSA, other components of the intelligence community, and some smaller clearance-granting agencies do not. At those agencies, an applicant’s only option for an in-person presentation is to travel to the Washington, D.C. area.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
