As promised last week, I jumped into the last 30 Defense Hearing and Appeals security clearance decisions that were appealed from recent review hearings. The results were somewhat predictable, but there were a couple of surprises and a few humorous anecdotes.

Over Half Based on Financial Considerations

Of the cases, 18 involved financial considerations. Of those cases, three centered around student loans, and three were based on delinquent tax debt. Also a financial case included drug use as another basis for denial. Four cases were issues involving drug or alcohol abuse, three were criminal or personal conduct, and two were foreign influence. At least three of the cases researched also referenced untruthfulness during the investigation. Finally there were three cases that I didn’t mention on the merits as they were sent back for adjudication due to a procedural error by the government (improper notice, failure to include evidence, untimely emergency). These numbers are consistent in proportion to the categories of adjudication hearings I broke down last week.

One point of interest is that the government appealed three decisions, and all three were successful, which resulted in denial of clearance. Two involved criminal conduct and one was financial considerations. In those cases, the appellate court noted the judge “ruled inconsistent with the evidence”

Several of the denials were due to the appellant trying to introduce new evidence on appeal, which is a non-starter. Most of the others were deemed “no judicial error” and found at the lower hearing level.

You’ve Got to Be Kidding Me

Some “I can’t believe what I’m reading” moments were truly entertaining as I mucked through the decisions. One case for financial considerations was appealed on the sole basis of “I really need a job”. Another person had filed five bankruptcies in 28 years and had two of those dismissed for failure to comply with the court. Two appellants tried to invoke COVID relief measures arguments on their student loans even though their debt was four to five years old with little to no payment during that time frame. Most of the appeals, however, were based on the judge failing to follow the “whole person” standard when adjudicating. None of these were successful. In fact, outside of the three procedural errors and the appeals by the government, no decisions were reversed.

Top Takeaways

After reviewing cases the last two weeks, I think there are some lessons to be had by those contesting denial of clearance.

1. Don’t expect to win your appeal. That means, bring all of your mitigation strategies and evidence of such to the initial hearing. You can’t introduce new evidence after the hearing, absent some really rare circumstances.

2. Read past cases that are similar in facts to yours to see what might work in saving your clearance.

3. Lying about lying is not a winning play. Tell the truth from the outset.

4. Consider hiring an attorney specialized in security clearance law to at least give you a consult. They may be able to give you sound advice based on their experiences with a particular judge or topic.

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Joe Jabara, JD, is the Director, of the Hub, For Cyber Education and Awareness, Wichita State University. He also serves as an adjunct faculty at two other universities teaching Intelligence and Cyber Law. Prior to his current job, he served 30 years in the Air Force, Air Force Reserve, and Kansas Air National Guard. His last ten years were spent in command/leadership positions, the bulk of which were at the 184th Intelligence Wing as Vice Commander.