A security clearance denial is never the news an applicant wants to hear, especially when they are anxious to get into a new job and start earning a salary. [Want cleared salary data? Download the 2022 Security Clearance Compensation Report.] One ClearanceJobsBlog subscriber is frustrated with the Defense Office of Hearings and Appeals (DOHA) process, their lawyers, and the fact that he is still has yet to work in a cleared position because of the associated procedures.
Can he sue DOHA for wages he’s lost out on? Here are the details of his case:
March 2021: Favorable Decision received.
April 2021: DOHA Lawyer submits Appeal, spelling my last name wrong and getting my case number wrong, which pushes everything back two weeks. I get informed that my case has been appealed.
April 2021: DOHA issues extension for DC, citing “overwork”.
May 2021: Appeal Brief submitted by DC.Department Counsel (DC) introduces arguments in contradiction of record evidence and the FORM. For example, in the SOR and FORM, the Government (and DC) said that I am under the foreign influence of a “country of heightened risk.” In the Appeal Brief, they spontaneously upgraded the country to a “hostile country,” and by that token claimed the Judge failed to adequately address a relevant concern.
This post-decision switcheroo is one of many that they pulled in the Appeal Brief.
May 2021: I respond to Appeal Brief.
July 2021: Appeal Board remands the case to the initial Judge.In the decision, the Appeal Board points out that Other Clearance Case with the exact same DC who pulled the exact same switcheroo in 2020 was flatly affirmed in the Applicant’s favor – no remand, no nothing. As per 5220.6, it was assumed that the Judge, in fact, did their job correctly and so DC’s attempt to stir the pot post-decision was rejected.
In my case, however, this switcheroo constitutes “an issue that should have been appropriately presented to the Judge”. This apparently raises “due process” concerns.
In the decision, the Appeal Board also points out their choice to remand my case “cannot become a practice” for DOHA. The Chair of the Appeal Board notes that “it would be beneficial” for the Judge’s post-remand decision to discuss how the presence of three factors of heightened risk influenced his analysis.
I know the strong and weak points of my application, but I do think that the Judge covered what they had to cover and applied relevant mitigating circumstances (of which there are a bunch, and they’re solid).
DOHA seems to allow its lawyers to capriciously re-word all of their arguments post-decision and then gives weight to those arguments – why else would the decision be remanded?
I was awarded a clearance in March. It’s now July, the remanding will likely take a few months, and the DC will likely appeal any decision in my favor (as I would appeal any reversal), which means I very much doubt I will actually be working in 2021.
I’m not trying to whine, but it seems like DOHA is bluntly bending the rules in their own favor. I couldn’t submit any new arguments during the appeal process, and I had big life changes that would have been positively impactful on any clearance determination, but some government lawyer can come alone and swap a country’s designation post-decision and DOHA gives that weight?
Can I actually sue for harm here? At least for the monetary equivalent of the salary I’m not making? DOHA’s failure to adhere to its own “due process” is going to cost me serious money.
I’ll start with maintaining a security clearance is never a right, but a privilege. It sounds like there could be additional information relating to foreign influence that concern DOHA, and not just the country designation escalating alone.
That being said, the availability of a potential reimbursement is noted in a Department of Defense Directive 5220.6.
Bill Henderson, contributor at ClearanceJobs notes, “There is a provision in the Directive (E3.1.42 thru E3.1.46) for reimbursing applicant for lost wages. It’s for wrongful clearance denials, revocations and suspension, but it seems that in spirit it should also apply to your situation.”
E3.1.42 reads: “An applicant may file a written petition, under oath or affirmation, for reimbursement of loss of earnings resulting from the suspension, revocation, or denial of his or her security clearance. The petition for reimbursement must include as an attachment the favorable clearance decision and documentation supporting the reimbursement claim. The Director, DOHA, or designee, may in his or her discretion require additional information from the petitioner.”
When your security clearance is denied, revoked, or suspended, and you eventually do end up getting it reinstated, you could be entitled to a settlement.
So, sure, if you’d like to sue, you have the option. But don’t count on the lawsuit giving you all your money back…because it could end up costing you more. As with any legal situation, consult with an attorney, consider your options, and make sure you have a solid case before you proceed.
