We often represent government contractors and federal employees in the security clearance appeals process at the Defense Intelligence Agency (DIA). Each federal agency is different in evaluating security clearance cases and the DIA is no different.
The DIA security clearance appeals process is initially governed by Executive Order 12698, which delegates clearance processing to the individual federal agencies. However, each agency handles things differently. Lastly, the DIA has its own rules for handling security clearance appeals. These DIA rules are enforced by the Defense Intelligence Central Adjudication Facility (DICAF).
The DIA Security Clearance Appeals Process Steps
The security clearance process at the DIA is known as having more due process built in than most of the other IC agencies. It is more like the Department of Defense (DoD) process than the other IC agencies. That said, the basic rules remain the same under the Executive Order and Security Executive Agent Directive 4 (SEAD 4).
The DIA security clearance process is managed internally by their security office. Like many other federal agency security clearance processes, there are some unique steps in the process. The typical steps in the DIA security clearance process are as follows:
1. Individual is Notified of Revocation or Denial of Security Clearance or Upgraded Access
When a DIA clearance holder or applicant runs into security concerns, the DIA, after some review and follow-up in the investigation process, will make a decision. Either they resolve the security concern, as is, and adjudicates favorably or they issue a Notice of Intent to Revoke or Deny (also known as a Statement of Reasons (SOR)). This document will provide the security concerns at issue and other rights in a Memorandum.
The security concerns will be set forth briefly in a 2-3 page letter response. The letter will usually provide copies of the security guidelines at issue and a section which discusses the process for responding.
There is a right to request a review of the decision. Additionally, there is a right to request the DIA Clearance File containing documents in the case. Individuals appealing the DIA decision will want to ensure that they specifically request that they are seeking a Personal Appearance (hearing) as well. Currently, these rights must be exercised within 10 days to be timely. Keep in mind that these deadlines have shifted over the years, so it is important to read the SOR carefully. Timing for appeals is key.
2. Receipt of the Security Clearance File
If requested, you will receive the DIA Security Clearance File before you have to draft your response. You will be provided with documentation relied upon by the DIA in denying or revoking the security access. As opposed to some agencies, the DIA does a fairly good job of explaining the specific security concerns at issue.
When the Clearance File is received it is important to subsequently file a written response and to prepare for the PA at the DIA. In the response letter, if a PA has been requested, you will be scheduled for a hearing in due course. These PAs, unless something changes in the future, will be conducted in person.
3. Written Response to the DIA
Upon receipt of the Clearance File, the individual will generally want to provide a detailed written response in preparation for the PA. It is important to provide supporting documents, in advance, to give the adjudicator time to review them in advance of the PA. The documents usually need to be provided within a sufficient time prior to the scheduled PA.
4. The Personal Appearance Hearing
The next step in the DIA security clearance process is for the individual to present their response to the adjudicators during the PA. We have represented individuals both in the DC and Reston locations for these purposes.
The DIA will notify you by letter about PA hearing scheduling. You should retain a security clearance lawyer to assist you with this presentation. These types of hearings typically take about an hour or more in length. The individual seeking to overturn the initial security clearance decision should be prepared to respond to the concerns at issue and also for potential questions by the adjudicators.
The meeting will typically have a number of participants including a panel of individuals. There will likely be DIA counsel, a DIA psychologist and other adjudicators from DICAF. They will then issue a decision on the security access appeal following the PA.
5. Appeal to the Defense Intelligence Security Appeals Board (DISAB)
Following the PA, a written decision will be rendered. If the decision is unfavorable, the individual has the ability to appeal the decision to a second step appeal at the DISAB. The second step appeal is conducted by a panel of senior security officers. This stage is in writing only and must be submitted within 15 days of the receipt of the denial. It is important to note that you must also complete the election to appeal to the DISAB form within 5 days of receipt from the denial. Again, deadlines over the years change, so it is important to review your particular paperwork.
6. Final Clearance Decision and Next Steps
Once the second step review is completed by the DISAB, the panel will issue a final decision. If unfavorable, then the individual will not be able to apply for a security clearance through DIA for one year. A DIA denial, in some cases, can also affect a Department of Defense security clearance (and clearances with other agencies) as well.
The DIA Clearance Process for Federal Employees
The security clearance process for DIA federal employees is different than that for government contractors that was described above. The dual nature of being employed and maintaining a security clearance causes the DIA to bring an employment action (removal) following a final security clearance revocation. If you do not prevail in the revocation action, a removal by DIA from federal employment will be proposed and will likely be upheld.
When an individual is defending against security clearance issues/appeals at the DIA it is pretty important to obtain legal advice. The appeals process can be fairly detailed and intense and representation is recommended.
