If your security clearance is denied or revoked, you have a right to an appeal. However, an appeal at the Defense Office of Hearings and Appeals (DOHA) may not be what you think it is. The appeal, if you choose to make one, occurs after you have submitted an answer to a Statement of Reasons (SOR) and your case has been decided by a DOHA Administrative Judge (AJ).
What Does It Mean to Appeal Your Clearance Denial or Revocation?
It’s important to understand that an “appeal” of a security clearance decision at DOHA is a written argument asking the DOHA Appeal Board to overturn a DOHA AJ’s decision. An appeal is not the written response to an SOR, nor is it the subsequent presentation of your case to a DOHA AJ for a decision based on a hearing or based on the written record without a hearing. At their website DOHA provides a description of the appeal process.
Either the Applicant or the DOHA attorney (Department Counsel—DC) can appeal an AJ’s decision. About 20 % of DOHA AJs’ decisions are appealed. A “Notice of Appeal” must be submitted with 15 days of the AJ’s written decision, and an appeal brief must be submitted in writing within 45 days of the AJ’s written decision—there’s no personal appearance before the DOHA Appeal Board.
The DOHA Appeal Board
The Board is comprised of three DOHA AJs. The DOHA Appeal Board doesn’t take a fresh look at the case and arrive at its own decision. The Board only reviews the material issues raised by either party to determine whether there were factual, procedural, or legal errors. The Appellant must raise a claim of a specific error and identify how the AJ committed the error. No new evidence can be considered. In most appeals, the Appellant claims that the AJ’s conclusions were arbitrary and capricious, because they were not supported by the evidence or because the AJ ignored or gave too little weight to certain evidence.
In a previous article about security clearance eligibility decisions by DOHA AJs, I wrote:
You may think that if you represent yourself at a DOHA hearing and lose, you can then get an attorney to appeal the clearance denial for you and possibly get the decision reversed. Don’t count on it. Very few appeals are successful. Out of 26 appeals to the DOHA Personnel Security Appeal Board (PSAB) handled by attorneys from March to October 2012, only 2 appeals were successful. During the same period, 40 Applicants appealed their own cases [pro se], and none were successful.
Success Rate for Appeals
That’s a success rate of 8% for Applicants represented by attorneys and an overall success rate of only 3%. But 66 cases is a very small sample. Sheldon I. Cohen, an attorney who is now retired, did a study of all 898 DOHA Appeal Board decisions from January 2000 through May 2006, and he found that less than 1% of Applicant appeals at DOHA resulted in an unfavorable decision being reversed. Of those 898 appeals, 745 were appeals by Applicants. Applicant appeals resulted in six (0.8 %) clearance denials being reversed and 23 (3 %) denials being remanded. DOHA DC appealed 153 favorable decisions and were able to get 82 (54 %) of them reversed and 42 (15 %) of them remanded. Most remanded cases get re-written by the same AJ in a manner that satisfies the Appeal Board without changing the outcome.
From January 2000 through May 2006, there were about 4,250 case decisions at DOHA, but only 153 were reversed or remanded on appeal.
[The record of appeals] in itself is not surprising since it is to be presumed that trial judges in most cases know the law and will decide the facts in accordance with the law. It is also to be expected, of course, that errors will occur in a small number of cases which is why the judicial process allows for appeals. – Sheldon I. Cohen
It’s equally unsurprising that DOHA DC are far more successful in their appeals than Applicants. DOHA DC understand the law and represent the Government on scores of cases each year. They can choose the cases they think are worth appealing. Applicants on the other hand only have one case—their own—and often misunderstand the permissible basis for an appeal.
DoD Directive 5220.6, “Defense Industrial Personnel Security Clearance Review Program” (The Directive) states at Enclosure 3:
The Appeal Board shall address the material issues raised by the parties to determine whether harmful error occurred. Its scope of review shall be to determine whether or not:
1. The Administrative Judge’s findings of fact are supported by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record. In making this review, the Appeal Board shall give deference to the credibility determinations of the Administrative Judge;2. The Administrative Judge adhered to the procedures required by E.O. 10865 and this Directive; or3. The Administrative Judge’s rulings or conclusions are arbitrary, capricious, or contrary to law.
The Board defines the “arbitrary and capricious” standard as one that requires an AJ to examine the relevant evidence and articulate a satisfactory explanation for the conclusions, including a rational connection between the facts found and the choice made.” ISCR Case No. 12-00406 (App. Bd. March 31, 2014). Additionally, “[i]n deciding whether the Judge’s rulings or conclusions are erroneous, [the Board] will review the decision to determine whether: . . . it does not consider relevant factors; it reflects a clear error of judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere difference of opinion.” ISCR Case No. 17-03229 (App. Bd. June 7, 2019).
Best Bet is to Get a Clearance Attorney or Consultant
There is a strong presumption that an AJ is impartial and unbiased; however, an Applicant can also raise a claim that the AJ was biased or prejudiced. It not enough that the Applicant personally believes the AJ was unfair. To be successful, the record must contain indications the AJ acted in a manner that would lead a reasonable person to question his or her fairness. Once a DOHA AJ denies or revokes your clearance, it’s extremely difficult to get the decision reversed or remanded—all the more reason to get professional help from a personnel security consultant or attorney and do best possible response to an SOR and presentation to a DOHA AJ. All of this applies to defense contractor personnel being processed for security clearances that don’t involve Sensitive Compartmented Information (SCI) or other Special Access Programs (SAPs). Other security clearance applicants are subject to an appeal process described in Executive Order 12968, DoD Manual 5200.02, Title 10 Code of Federal Regulations, Part 710, and Intelligence Community Policy Guidance 704.3.
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