Security Clearance Appeals

If you are reading this, you may have received 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.

Being represented by counsel improves your chance of winning the appeal but, whether you retain counsel or not, this page contains some useful information about the security clearance appeals process.

1. Sometimes Concerns Come Down to Bad Answers on Forms.

Your problem may arise because you omitted or misstated facts on the basic application forms. Some 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. If you are past that point, read on.

2. Accurate Answers Presenting Bad Facts.

Your responses may identify facts that simply demand 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, you should discuss the issue with a knowledgeable security clearance lawyer promptly.

3. Your Rights on Appeal

The Foundation of Your Rights

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

The Nature of Your Rights

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 of civil court, these rights are very limited. 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 the claim of the petty tyrant you worked for five years ago, and 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 appropriate times

Job Offer Contingent on Clearance

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.

There is little you can 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 is no security clearance case to address, and the clearance process is ended.  (The lesson, if you are reading this before accepting such a job offer, is to secure the prospective employer’s promise to continue to sponsor you for the job through a review process if you are initially denied.

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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 cases and can give you insights useful for your case.

  • We’ve seen hundreds.
  • We know which arguments are persuasive and which generally fail, helping you understand whether your approach is on the right track.
  • And we can be your advocate when you need someone who speaks to the decision-maker in the decision-maker’s language. We can say things about you that might sound self-serving if you said them yourself.

We can distinguish between the winnable case and the long shot. We candidly discuss our view of your case with you before we will agree to being retained for the full appeal process. We will decline cases where we believe we cannot make a difference.

If you have the right to appeal and you are far enough along in the process so that you must present your full case for final decision, review our note on the varied appeals processes.

Our security clearance lawyers handle cases nationally.

Our location in the Washington, D.C, area leaves us close to DOHA headquarters and hearing rooms.

CONTACT US ABOUT YOUR SECURITY CLEARANCE PROBLEM.

By Eric-Eisen

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Posted in: Business & CommercialSecurity Clearance

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