Just recently, a DoD contractor contacted my office in a panic. He had received notice hours earlier that his employer was terminating him for “inability to obtain a security clearance”; yet he was adamant that he had never been notified of a problem with his application. As a ClearanceJobs.com reader, this applicant knew enough to ask questions and seek out competent legal counsel. What he didn’t know was what, exactly, was happening or how he might be able to fix it. Fortunately for him, he’s hardly the first person to find themselves with what’s called a ‘default denial’.

Default Denial

What he was experiencing happens to a small but consistent number of security clearance applicants each year. The “default denial” (or “default revocation”) occurs when a clearance holder is issued security interrogatories or a Statement of Reasons by a federal agency and fails to respond. The government assumes that the non-response is intentional and proceeds to deny or revoke the clearance “by default.” The employer is then notified of a clearance denial or revocation and proceeds to immediately separate or reassign the employee – often without realizing that the employee never received the government’s correspondence.

DoD Has Majority of Default Denials

The vast majority of default cases occur at the Department of Defense. Whereas other federal agencies issue personnel security-related correspondence directly to the clearance-holder or applicant, DoD insists on delivering its correspondence through local security managers or facility security officers (FSO’s). This sometimes causes the correspondence to be lost or misdelivered – especially when the end-recipient is at a different location from the security manager or FSO – and creates the mistaken appearance that the documentation has been received by the end-recipient even if he or she never signs a receipt.

This is a policy problem that DoD can and should fix. Security professionals should insist on it rather than be co-opted into playing delivery-person and assuming the risk of failure that rightly belongs to the government.

What to Do With a Denial

In the meantime, however, anyone being told that their security clearance was denied or revoked without an opportunity for administrative due process should understand that this is not how the system is supposed to work. Executive Orders 12968 and 10865 (among other Orders, rules and policies) afford anyone facing the denial or revocation of a security clearance the opportunity to challenge that decision. It is an important right and one that should be exercised in the vast majority of cases except those where doing so would mean jeopardizing other rights such as the right of a defendant to remain silent in a criminal trial.

To do so in a default case, the security clearance holder or applicant must contact the relevant federal agency’s personnel security office, explain the situation, and request an opportunity for the erroneously forfeited administrative due process. Ideally, the cognizant local security manager or FSO should be enlisted in the effort; a letter confirming the non-delivery of the interrogatories or Statement of Reasons is very helpful (but not necessarily required) to convince security officials that the default was, indeed, predicated on a mistake. Then, once the default decision is reversed, the clearance-holder or applicant should follow-through and take full advantage of the appeal process to make their case. Many denial and revocation cases are winnable with the right approach.

 

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

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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