Security clearance appeals proceedings are different from proceedings in a court, though some portions may resemble court proceedings in some ways. They are also different from each other, depending on who the Applicant works for and which agency “holds” the clearance. Although all agencies must apply the same substantive guidelines, the procedures used by the Department of Defense, the Central Intelligence Agency, the National Security Agency; the Defense Intelligence Agency, the FBI, the Department of Justice, the State Department, the Energy Department, Homeland Security, and the National Reconnaissance Office vary widely. We know this viscerally because we’ve worked with clients affected by the actions of each of these agencies.
Whichever agency conducts the security clearance appeals proceedings, the core considerations are supposed to be the same. There are thirteen standards or “guidelines” against which Applicants are assessed. These are: Criminal Conduct; Security Violations; Misuse of Information Technology Systems; Allegiance to the United States; Foreign Influence; Foreign Preference; Sexual Behavior; Personal Conduct; Financial Considerations; Alcohol Consumption; Drug Involvement; Emotional, Mental and Personality Disorders and Outside Activities. The details of the standards change from time to time, with the most recent set made effective in the summer of 2017.
Because of the national security concerns driving clearance requirements, the clearance process and the standards for denial and revocation are all stricter, more government-centric, and more unforgiving than conventional legal standards. The adjudicator must decide that grant of a clearance is “clearly consistent” with the national interest. At each stage of consideration the decisionmaker is to err on the side of denying clearance. Department of the Navy v.Egan, 484 U.S. 518, 531 (1988). This is a far cry from the “preponderance of the evidence” and the presumption favoring the defense in civil trials. The focus is quite clearly on the national interest, not the affected individual or company.
The governing standard includes consequences that go beyond simply the incline of the hill you must scale. There is no right to jury trial. Court review of adverse administrative decisions is so limited as to be virtually irrelevant. (For example, a Department of Justice position paper instructs that race and sex discrimination charges do not apply in security clearance reviews at the agencies and even in court.) Counsel may not be afforded access to the precise information on which the decision-making process has relied because there’s no national security need for affording counsel access to the restricted information.
The government’s position is that individuals in this system are in neither a criminal or civil process. They are simply being assessed by the holder of sensitive information to determine whether they may be afforded access to this information. While there is much to take issue with in this view, the courts have tended to accept the claim of executive authority concerning national security. The point to take away from this is that basic principles concerning the way we conduct ourselves in America may be relaxed or even give way for the sake of national security concerns.
1. Department of Defense Industrial Security Clearance Cases
Security clearance appeals proceedings here typically involve security clearances of officers and employees of contractors doing business with the Department of Defense. A useful schematic of the entire DoD review process may be found here. The reviewing agency must, in accordance with DoD Directive 5220.6, issue a Statement of Reasons (SOR) identifying facts and applicable guidelines relevant to its inclination. This directive lists the thirteen general areas on which the security clearance assessment will focus. You are given a definite time-frame in which a response to the SOR must be provided if the decision is to be contested, and you are invited to request the investigative materials from which the agency formed its position. Usually it takes longer to get the materials than the time frame allowed for the response, but also usually the deciding agency allows some extension of time to allow the Applicant to view the materials prior to responding.
Initial recommendations are by nature provisional and subject to individualized review by supervisory staff prior to the formal DOHA appeal review process. At that stage the good faith, reasonableness and general acceptance of societal norms by the human beings who exercise first-tier supervision can play a very important role in relaxing or overturning adverse initial recommendations. We caution that the security laws are as they are, and sympathy for the individual who may be no risk, but also conceivably might be a risk, will not win the day. But the security laws do themselves incorporate standards of reasonableness to some degree, and here is where there may be room to change the proposed action.
Often first-tier review does not result in relaxation or reversal of the adverse recommendation. If the applicant wishes to press the matter further, a more lengthy formal DOHA hearing process before an Administrative Law Judge must follow. The applicant may appear and present evidence, argue points of law relevant to the subject matter, and supplement such presentations with written briefs. After a transcript of the hearing is distributed the Administrative Judge will decide the matter in a reasoned opinion.
In court litigation aggressive dismissal of an opponent’s position is standard operating procedure. In security clearance appeals, acknowledging, addressing, and resolving governmental concerns that are not profoundly and clearly wrong is at least more effective. The best presentations show what is clearly wrong and explore what is left with the intent of saving what can be saved. (For example, there is a tendency to over-rely polygraph tests and reports. But polygraphs have become such a cornerstone of the evaluation process. A general challenge to all such tests as a component of the investigatory process will close minds and inspire a defensiveness that will be counterproductive to a successful appeal.) We caution that this is an area where those finding themselves in this forest should seek skilled legal advice and representation at the earliest possible time, and not seek to test the review waters without such counsel.
Personal appearances and marshaled facts presented at hearing have proved to be more successful than purely paper presentations. In fact, testimony before the Senate Armed Services Committee reports that for DOHA industrial security clearance cases (i.e., cases concerning defense contractor employees) clearances are denied in approximately 85% of the cases where no hearing has been requested, but in cases where a hearing is involved the denial rate drops to 60%.
2. Active Duty and DoD Civilian Personnel Security Clearance Cases
Security clearance appeals proceedings concerning active duty and DoD civilian personnel are controlled by DoD Regulation 5200.2-R. That regulation established the Personnel Security Appeals Board (PSAB) as the effectively final authority in reviewing clearances of civilian employees.
From the employee’s point of view, the process begins with an SOR and opportunity to respond, usually in a short time frame. In the usual case this is followed by a Letter of Denial (LOD). As with SORs, the Applicant is afforded the opportunity to secure an investigative file on which the agency has relied. After this issued the employee may appeal directly to the PSAB or seek a hearing at the Defense Office of Hearings & Appeals (DOHA), which is then conducted essentially the same as a civilian contractor case, except that the administrative judge’s decision is then forwarded on to the PSAB as a recommendation for its consideration.
3. Other Federal Agencies
Security clearance appeals proceedings at other federal agencies may also be grouped by whether the subject is a government contractor’s employee or a direct employee of the government. We have managed or participated in such proceedings at the CIA, the Department of Energy, the Department of Homeland Security (DHS), the Department of Justice (DoJ), NASA, the White House, and the Department of State (DOS). Like DoD military and civilian personnel cases, these cases typically begin with a Letter of Denial or Letter of Intent to Deny the security clearance. Again the response time is very short and opportunity to view an investigative file is provided.
The case will then be set for an appearance before a hearing officer or a Administrative Panel. The hearing procedure may be quite circumscribed. Often it amounts to no more than opportunity to personally appear and explain one’s actions. Each agency relies on the same substantive guidelines for determining disqualifying and mitigating criteria but has its own administrative procedures. For example, the CIA and NRO procedures typically begin with an appearance before a single individual, usually self-described as a reporter to decision-makers, in a small room where only the Applicant and his or her attorney may be present. The procedure with the Federal Air Marshals (FAMs) of the Transportation Security Administration (TSA) of DHS begins with an appearance before a “security appeals panel” where no witnesses may be presented but the Applicant can make a statement and be questioned. The appearance at NSA is at the final stage of the appeal, after a written appeal has been rejected, and is before a panel of senior NSA professionals.
The appearance or hearing will be held at a place determined by the federal agency. As with active duty and DoD civilian employee cases, the Applicant’s case should be prepared and submitted well in advance and should clearly and cogently lay out the case against the Applicant, the facts and documentary evidence responding to that case, and reasoned argument regarding how the probable facts should be weighed under the applicable guidelines.
Our security clearance lawyers handle cases nationally.
Our location in the Washington, D.C, area leaves us close to DOHA headquarters and hearing rooms.