The idea of a security clearance denial is scary—and as it turns out, it’s confusing, too. The rules of denial are different for federal and military personnel and government contractors, says John Berry, a national security attorney. That can often lead applicants to uncertainty, wondering whether they’ll receive written notice from the agency, or the reasons why clearance was denied.
Here, we’ll attempt to clear up some of the most confusing aspects of security clearance denial.
You will likely get notice of your clearance denial.
When an investigation reveals significant unmitigated derogatory information, applicants can get a heads-up: an adjudicator will issue a “Letter of Intent,” or an LOI, to deny clearance. This is a preliminary decision—e.g., it’s not set in stone. It may also come with a “Statement of Reasons,” or an SOR, explaining what issues have been uncovered and why the clearance will be denied.
Like every rule though, there are exceptions: It’s important to note that some agencies issue a Letter of Denial, instead of an LOI, with an SOR. And while most clearance notices come in writing, some are delivered differently: A security officer might provide information to an applicant, says Berry. And “in many cases, employers will inform the individual that their clearance has not gone through and they are terminated,” he says, which isn’t exactly “notice.”
You can (usually) get reasons For your clearance Denial.
Again, an SOR often comes with a LOI, and it will shed light on the issues you face. However, Berry says federal and military personnel are more likely to get an SOR with their LOI. Government contractors, on the other hand, are “less likely to find out the reasons they have been denied,” he says. However, government contractors who do not receive an SOR can “file a Privacy Act request and attempt to determine what caused their denial,” Berry explains.
There are at least two reasons you won’t be able to find out why you will or have been denied clearance, however. If “an agency concludes the basis for the adverse action are classified and cannot be disclosed to you, or the director of the agency that was going to grant you access personally determines the interests of national security preclude providing you with due process procedures,” then you will not receive an LOI or SOR, says Bradley P. Moss, a national security attorney. The good news, though, is that “these two exceptions are rarely invoked,” Moss says.
It’s also worth noting that “different agencies will provide differing levels of detail on the reasons for a denial,” Moss explains. “There is no set standard that applies, although usually the agency will at least identify the factual issues and applicable disqualifying concerns.”
You can fight the denial decision.
If you’re notified that your clearance will be or has been denied, you can appeal the decision.
Executive Order 12968 gives security applicants two things: two levels of appeal—and that a “personal appearance” be afforded to the applicant at one of those levels of appeal. “Different agencies have different procedures for providing those two levels of appeal, particularly the personal appearance,” says Moss. For example, the Defense Office of Hearing and Appeals for Department of Defense contractors provides a “full-blown hearing with an administrative judge,” says Moss. “Others limit the appearance to a small conference room with security officials.”
The appeals process is not considered complete until the applicant has finished both levels of his or her appeal—or withdraws their appeal, says Moss. If both of the applicant’s appeals fail, then “the action is final,” he says. Applicants do not have a right to judicial review of their clearance.
