{"id":1128,"date":"2016-10-11T15:43:20","date_gmt":"2016-10-11T19:43:20","guid":{"rendered":"http:\/\/eisenshapiro.com\/law\/?p=1128"},"modified":"2019-08-06T17:29:25","modified_gmt":"2019-08-06T21:29:25","slug":"security-clearance-appeals","status":"publish","type":"post","link":"https:\/\/eisen-shapiro.com\/law\/2016\/10\/11\/security-clearance-appeals\/","title":{"rendered":"Security Clearance Appeals"},"content":{"rendered":"

If you are reading this, you may have\u00a0received preliminary interrogatories or some form of Notice of Decision or Statement of Reasons (SOR). If so, you know that your application or status is in trouble and you are facing some kind of security clearance appeals process.<\/p>\n

Being represented by counsel improves\u00a0your chance of winning the appeal<\/a>\u00a0but, whether you retain counsel\u00a0or not, this page contains\u00a0some<\/em> useful information about the security clearance appeals process.<\/p>\n

1. Sometimes\u00a0Concerns Come Down to\u00a0Bad Answers on Forms.<\/h4>\n

Your problem may arise because you\u00a0omitted or misstated facts on the basic application forms.<\/a>\u00a0Some questions are simply not clear. In some cases, you may have been in a hurry or distracted when you completed the form. Sometimes an applicant makes a conscious election to read an ambiguous question in a self-serving way. There may be inconsistencies between forms. These and other potential problems or mistakes can be avoided by early counseling<\/a>. If you are past that point, read on.<\/p>\n

2. Accurate Answers Presenting Bad Facts.<\/h4>\n

Your responses may identify facts that simply\u00a0demand a deliberative process beyond the first level review. This doesn’t mean you have no hope. The very conservatism that tends to incline lower-level review officers to flag problems and start the appeals process can in many cases be effectively neutralized by the orderly presentation of additional information and persuasive argument in the course of that process. If you’ve not done so already,\u00a0you should discuss the issue with a knowledgeable security clearance lawyer promptly.<\/p>\n

3. Your Rights on Appeal<\/h4>\n

The Foundation of Your Rights<\/h5>\n

The modern formal security clearance process begins with the Supreme Court’s decision in Greene v.McElroy, 360 US 474 (1959)<\/a>. In that case the Court showed great deference to the executive on national security matters, but had some trouble\u00a0with the\u00a0lack of defined standards or opportunity for an involved individual to respond. Greene<\/span>\u00a0was followed by a series of executive orders and agency regulations implementing standards and\u00a0procedural protections while maintaining an\u00a0efficient and effective screening and hiring system. The “granddaddy” executive order, Executive Order 10865<\/a>, provided for the hearing opportunity and some ability to confront and cross-examine witnesses. It\u00a0was issued a year after Greene<\/span> by President Eisenhower.<\/p>\n

The Nature of Your Rights<\/h5>\n

You have the right to be told of the basis for the decision and to appear and respond regarding the facts and the application of the governing policies given those facts. By the measure\u00a0of civil court, these rights are very\u00a0limited. They do not protect against bad decisions made on misinformation and hunches. If the process is followed, court review changes no outcomes. Hearsay is generally allowed. The tribunal will give weight to\u00a0the claim of\u00a0the petty tyrant you worked for five\u00a0years ago,\u00a0and to risks that you think of as ranging from remote to inconceivable. What this means is that if you are going to appeal a proposed action or preliminary determination, you must start with a strong case and must present it in an organized and compelling manner at the\u00a0appropriate times<\/p>\n

Job Offer Contingent on Clearance<\/h5>\n

Some right of appeal is always better than none. We receive inquiries from people who have been promised a job conditional on their obtaining a security clearance. When they failed to get an interim clearance after a first-level paper review and inquiry, the job offer is revoked.<\/p>\n

There is little you\u00a0can do in such matters. The reviewing agencies take the position that if you are no longer offered to fill the job requiring the security clearance there\u00a0is no security clearance case to address, and\u00a0the clearance process is ended. \u00a0(The lesson, if you are reading this before<\/em> accepting such a job offer, is to secure the prospective employer\u2019s promise to\u00a0continue to sponsor you for the job through a review process if you are initially denied.<\/p>\n

* \u00a0 \u00a0 \u00a0 \u00a0 * \u00a0 \u00a0 \u00a0 \u00a0 *<\/p>\n

The facts of each case are very important, but good facts don’t necessarily lead to good outcomes. An experienced security clearance lawyer has seen many\u00a0cases and can give you insights useful for\u00a0your case.<\/p>\n