What can an applicant do when a federal agency processing their security clearance is unresponsive and nonfeasant? The Defense Counterintelligence and Security Agency (DCSA) Consolidated Adjudication Service (CAS), which handles the vast majority of clearance adjudications, prohibits applicants from contacting them directly (DCSA CAS FAQs #23). All inquiries must be made by an applicant’s security officer, but often the only response is that adjudication is pending.
Currently, the only other solution is to contact your U.S. representative or senator and ask for their help. Unfortunately, the staffer in the congressman’s office who is handling your request probably has no knowledge of how the security clearance system works. The staffer usually accepts and passes along any answer the Government agency provides, even if it’s completely unresponsive to the information requested.
What has been needed for a long time are ombudsmen, who are knowledgeable of the security clearance process.
I had a client (“Subject”) several years ago. She was an Intelligence Specialist in the U.S. Navy Reserve and a DoD cleared contractor employee with a Top Secret/Sensitive Compartmented Information (TS/SCI) clearance. In October 2016, her employer submitted information that resulted in an “Incident Report,” her termination of employment, and the suspension of her access to classified information. In April 2017 Subject answered a Statement of Reasons (SOR), and in March 2018, she received a “Letter of Revocation” (LOR) from the DoD Consolidated Adjudication Facility (CAF) (now called DCSA CAS). In November 2018 after her appeal at the Defense Office of Hearings and Appeals (DOHA), her clearance was restored by the Navy Personnel Security Appeals Board (PSAB) and she was able to return to work involving classified defense information. There were lengthy delays at each stage of the process. For more than a year and a half, Subject was unable to work in her occupational field and was not allowed to perform her normal duties as a Navy reservist. She had a significant loss of income and incurred large expenses in her effort to have her clearance reinstated.
One to two years to reach a final clearance eligibility decision in a problematic case should not be acceptable, but it’s very common. Usually, a large portion of that time is spent on the investigation, but in Subject’s case there was no investigation by or for DoD after the Incident Report was submitted. No additional information was requested or obtained by DoD CAF before or after they received Subject’s SOR response.
Here’s what DoD Manual 5200.02, “Procedures for the DoD Personnel Security Program (PSP),” (April 2017) says about how much time some of these stages should take:*
Suspension cases must be resolved as quickly as circumstances permit. Suspensions exceeding 180 days must be closely monitored and managed by the adjudication facility concerned so as to expeditiously reach a new national security eligibility determination. (paragraph 9.4.i.)
The central adjudication facilities will provide the written LOD or LOR as promptly as individual circumstances permit but no more than 60 calendar days from the date of receipt of the individual’s reply to the SOR and LOI, provided no additional information is deemed necessary to render the national security eligibility determination. (paragraph 10.4.a.(4)(c))
If an LOD or LOR cannot be completed within the time frame allowed, the individual will be notified in writing of this fact, the reasons why, and the date the written LOD or LOR is expected to be completed, which will not normally exceed a total of 90 calendar days from the date of receipt of the reply to the SOR and LOI. (paragraph 10.4.a.(4)(e)
The AJ [DOHA Administrative Judge]will schedule a personal appearance (generally within 30 calendar days from receipt of the request), and arrange for the production of a verbatim transcript of the proceedings. (Appendix 10B, paragraph 3.)
The PSAB will: Process appeals with appearances before DOHA within 30 calendar days of receipt of the recommendation of the AJ. (Appendix 10A, paragraph b(2))
Here’s what happened with this case:
- 4 months – from the submission of the Incident Report to the issuance of an SOR and the suspension of Subject’s access to classified information.
- 11 months – from Subject’s SOR response to DoD CAF’s LOR.
- 2 months – from Subject’s Notice of Appeal to the “personal appearance” hearing at DOHA.
- 3 months – from the DOHA appeal hearing to the DOHA AJ’s recommendation to the Navy PSAB.
- 3 months – for the Navy PSAB to issue its decision to reverse DoD CAF’s clearance revocation and to reinstate Subject’s clearance.
Since there was no investigation or inquiry of any kind by or for DoD (other than the SOR), there was no logical explanation for why it took DoD CAF 4 months to issue an SOR and 11 months to review Subject’s response to the SOR and decide to revoke her clearance.
For almost all of my clients, DoD CAF/DCSA CAS has taken more than 60 days to make a decision after receiving the applicants’ responses to SORs. None of my clients have ever received written notification regarding a delay in adjudication in accordance with DoDM 5200.02, paragraph 10.4.a(4)(e).
The two requests we sent to Subject’s senator were a waste of time. On September 29, 2017, DoD CAF responded to the senator’s first inquiry by stating:
We received [Subject’s SOR] response on April 5, 2017. We are presently conducting a thorough, multi-level review of the information [Subject] provided, along with all other available/relevant data. Unfortunately, we cannot speculate when a final eligibility determination will be rendered.”
There was nothing in DoD CAF’s response about the time or notification requirements in paragraph 10.4.a.(4) of DoDM 5200.02. The senator’s office accepted this as being responsive to their inquiry and merely passed it on to Subject. DoD CAF did not respond to the senator’s second inquiry in February 2018 until more than a month after Subject received the LOR. Again, nothing specific was said about the delay, as if to imply that the clearance revocation somehow justified the 11 months it took to make the decision. Over the years, I’ve had mixed results in my dealings with congressional staffers. More often than not, congressional interest in security clearance case does little to speed up the process or even compel the Government agency to follow the rules.
Interestingly, Subject applied for a Department of State (DoS) contractor position in January 2017. DoS completed a background investigation in August 2017. On March 1, 2018 DoS issued their equivalent of an SOR. Subject immediately appealed to the DoS Contractor Review Panel (CRP), using the same SOR response she sent to DoD CAF. On March 27, 2018 the CRP reversed the original DoS unfavorable decision, found Subject suitable to work as a contractor employee for DoS, and granted her a Top Secret clearance.
There are much worse cases. I became involved in a DoD CAF/DOHA case after it had already been in process for about five years. In another case, I represent a CIA applicant who submitted a security clearance application in February 2016, was denied clearance a year later without ever being investigated, and is now waiting on a second-level review—seven years and still no final decision. Repeated inquiries have resulted in the same response: “Your case is in the queue.” A review of recent DOHA cases will confirm that significant delays in clearance processing still occur frequently.
Government Security Management Offices and FSOs have little choice but to accept delays as being normal and unavoidable. They lack the ability to look behind the curtain and see why the delays occur. They also lack the authority to pressure an adjudicative agency to do their job and comply with rules. The usual explanation for a long delay is the existence of a case backlog; however, a case backlog is not an explanation for why it takes several months to adjudicate an SOR response, when other SOR responses are being adjudicated in half that time. To be fair, most of the delays occur before the SOR is issued.
Presidential Executive Order (E.O.) 12968 provides procedural due process for clearance denials and revocations. Excessive delays effectively deny due process. Because the provisions of the E.O. cannot be administratively or judicially enforced, an ombudsman is the best way to solve unjustifiable delays in security clearance processing. An ombudsman’s office should be created at DCSA and at the Office of the Director of National Intelligence (ODNI). The National Classification Management Society (NCMS), the Intelligence and National Security Alliance (INSA), the National Industrial Security Program Policy Advisory Committee (NISPPAC), and other stakeholders in the personnel security clearance process should advocate for the creation of ombudsmen positions.
* DoD Regulation 5200.2, which was replaced by DoDM 5200.02, contained these same time and notification requirements, except that it required DOHA to conduct an appeal hearing and submit its recommendation to the PSAB within 60 days of receiving the appeal request.
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William H. Henderson is a former Army Counterintelligence Agent and a retired federal clearance investigator. In 2007 he began helping clearance applicants from the pre-application stage through representation at hearings. Since 2012, he’s been the Principal Consultant at the Federal Clearance Assistance Service (FEDCAS). His two books on security clearances have been used at five universities and colleges, he has contributed scores of articles to ClearanceJobs.com, and he’s been retained as an expert witness in several state and federal lawsuits.
