Most federal agencies have their own written “due process” procedures for handling security clearance denials and revocations. Those procedures vary somewhat from agency to agency, but they are rooted in and should conform to the requirements of Presidential Executive Order (EO) 12968 or 10865.
EO 12968 requires that applicants be provided:
- A written explanation of why their clearance is being denied or revoked (this is commonly called a Statement of Reasons or SOR);
- An opportunity to reply to the SOR in writing and to request a review of the decision.
- The right to request documents on which the denial or revocation is based (if requested, the documents must be provided within 30 days), and the right to request their entire investigative file (if requested, the file must be provided prior to the time set for a written reply).
- The right to be represented by counsel or other representative at their own expense.
- Written notice of and reasons for the results of the review, the identity of the deciding authority, and written notice of the right to appeal.
- An opportunity to appeal an unfavorable review to a high level 3-member panel in writing (decisions of the panel shall be in writing, and final).
- An opportunity to appear personally and to present relevant information at some point in the process before an adjudicative or other authority.
EO 10865 applies only to federal contractors and provides essential the same due process as EO 12968 plus a qualified opportunity to cross-examine persons who have made statements adverse to the applicant.
Difference Between SF86 and federal employment suitability or fitness standards
These due process procedures only apply when a person has had a security clearance denied or revoked. They don’t apply to people who are disqualified for a job due to federal employment suitability or fitness standards. This can sometimes be confusing when a person submits a “Questionnaire for National Security Positions” (Standard Form 86—SF86) for a federal job that requires security clearance in addition to a favorable suitability/fitness determination. When that occurs, the suitability/fitness determination is usually made first, and if it is unfavorable, the case is never adjudicated for security clearance eligibility.
Understanding the Security Clearance Lingo
The wording used by different agencies can also be confusing. Rarely is the term, “security clearance,” used in official documents. “Eligibility for Access” or “Access Eligibility” is often used in place of security clearance and means the same thing. Some SORs are clearly labelled as SORs and sent as an attachment to a letter advising the applicant of the Government’s unfavorable access eligibility determination. Sometimes there is no separate SOR; instead the “SOR” is woven into the text of the letter. The letters are commonly called a Letter of Intent, Letter of Instruction, Letter of Denial, Notification Letter, or Notice of Determination, but usually are not labelled as such. They start with sentences similar to:
- A preliminary determination has been made that it is not clearly consistent with the national interest for you to have access to classified information.
- The Agency disapproved you for access to classified information.
- Based on an evaluation of information gathered during your security processing, a determination has been made that you will not be granted access to.
- This letter serves as notification that the Office of the Chief Security Officer is revoking your access to classified information.
Adjudicative Agency Vs. Investigative Agency
Getting the documents on which the denial or revocation is based and/or the entire investigative file within the prescribed time can be difficult, especially if the adjudicative agency (agency making the clearance decision) is not the same as the investigative agency. Only the agency that created a document is authorized to release it. The adjudicative agency will provide you information on where to obtain the documents, but if it’s another agency, you probably won’t get the documents before the suspense date for submitting the SOR response. Very few agencies comply with the 20-day response requirement of the Freedom of Information and Privacy Act (FOIPA) or the 30-day response requirement of EO 12968.
Ignored Time Requirements
The due process requirements of EO 12968 adequately protect an applicant from arbitrary or capricious security clearance decisions, but they offer no protection from being unfairly denied a clearance due to an agency’s inaction. Other than the requirement to provide the applicant documents on which the denial or revocation is based, EO 12968 doesn’t prescribe any time requirements for the steps in the process. A completed background investigation can sit at an adjudicative facility indefinitely without a decision. DoD Manual 5200.02 (Procedures for the DoD Personnel Security Program) states that final clearance decisions should be made within 60 days of receiving an applicant’s response to an SOR, but the DoD Consolidated Adjudications Facility (CAF) routinely ignores this requirement. Other agencies don’t specify any time requirement for adjudicating an SOR response or scheduling a hearing, nor do they have time requirements for processing appeals.
Denial Based On Delay
Since an applicant can’t submit a rebuttal or appeal until an unfavorable decision is made, an agency can circumvent the due process requirements of EO 12968 and effectively deny a security clearance by choosing not to make a clearance decision. Often an applicant will give up and pursue uncleared employment or the applicant’s sponsor will withdraw clearance sponsorship, terminating the process and usually resulting in a “Loss of Jurisdiction” (LOJ). LOJ can occur anytime clearance sponsorship is terminated while there is an adjudicative action pending.
Examples Over the Years
The most egregious case I’ve seen was a person who submitted an SF86 in January 2011 and had his background investigation completed in January 2012. It wasn’t until four years later that DoD CAF issued an SOR. He was finally granted a clearance in November 2016. I’m also familiar with another applicant who submitted his “SOR” response to the CIA over three years ago. Repeated inquiries have resulted in letters from the CIA stating that his case is “in the queue” waiting to be adjudicated. What makes this case especially unconscionable is that the CIA denied this person a clearance without having conducted an investigation. Even if he gets the clearance denial reversed, he’ll have to start all over from the beginning.
Building Access Denial
Then there’s the building pass (security badge). There have been and continue to be cases where people are denied due process by Government security officials who control building passes. This was mentioned in a 2014 DoD Inspector General report. It usually affects only cleared contractor employees who need access to a Government building to do the job they were hired for. Denying a contractor employee a building pass effectively prevents them from accessing classified information and doing their job, and it usually results in them losing their job. The denial of a building pass can also affect a cleared federal employee specifically hired to work on a joint project in a building controlled by another federal agency. The federal agency that controls access to the building can refuse to issue the employee of the other agency a building pass because it doesn’t like something in the employee’s background that didn’t result in clearance denial. There are no Government-wide rules requiring agencies to give people the right to appeal the denial of a building pass. When there’s a security concern (even one that’s been favorably adjudicated), it’s much less cumbersome and expensive to simply deny a person a building pass than to go through the multi-step process for denying or revoking a security clearance.
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