by PNNL – Pacific Northwest National Laboratory

For millions of Americans, a national security clearance is required to gain employment and maintain a job working with a large variety of government and military agencies. The Defense Security Service has a Central Adjudication Facility called the Defense Industrial Security Clearance Office (DISCO) where they process about 150,000 personal security clearances each year. Some individuals are granted clearance by the DISCO after this process; however for many people the investigation process may bring up a few reasons why an agency may doubt their application for security clearance.

When this happens the case is transferred to the Defense Office of Hearings and Appeals.

DOHA

The DOHA handles all security clearance applications in question. Once a case is handed to the DOHA, they can request further investigation, interview the applicant, require psychological evaluations, and send out written interrogations. Annually, the DOHA receives and process about 40,000 cases.

The ratio of favorable adjudicated cases by the DOHA is very good. In about 96% of cases, they grant or continue existing clearances, and the process ends. For the remaining 4% the DOHA decides to revoke or deny the clearance and all are issued a Statement of Reasons.

Statement of Reasons

The Statement of Reasons details every specific reason why the applicant may not have been granted clearance and alerts the candidate of their right to appeal this decision with a written rebuttal or a hearing. About 10% of those who receive a Statement of Reasons simply accept it without rebuttal and the process ends with no clearance. The other 90% must challenge the denial with first a written rebuttal submitted within 20 days, clearly outlining a denial or admittance of each allegation made in the Statement of Reasons. This is the point in which consulting with a qualified and experienced security clearance attorney may be necessary and helpful in challenging the denial decision. The Edmunds Law Firm, for example, has a strong history of regaining clearance for their clients based on the written rebuttal alone, and also has a strong reputation in the courtroom.

After the DOHA receives the rebuttal, they send the applicant a File of Relevant Materials (FORM), which gives the applicant 30 days to send another written explanation addressing the materials and any remaining allegations or concerns from the DOHA. If, after receiving this written explanation, the DOHA feels the allegations were unfounded, they can grant clearance to the applicant. If this is not the case, the application is assigned to an individual Administrative Judge who will consider the case with or without a hearing. About 88% of the cases reviews by the administrative judge without a hearing will be denied clearance.

Hearing

A hearing can be requested by either the applicant or a DOHA attorney. At this point in the process, it is very important to seek the professional legal counsel of a security clearance denial attorney, like The Edmunds Law Firm.  The attorney, at this point, requests information from the DOHA regarding witnesses and evidence against the applicant to prepare an explanation or rebuttal in court. The applicant must be present in person at the hearing, which will be held in a city near the applicant’s residence or place of employment. Any witnesses called in the hearing may be subject to cross examination.

After the hearing, the Administrative Judge reviews the evidence and makes a written decision regarding the status of the applicant’s security clearance as well as an inclusion of all policies, facts, findings, and conclusions about the allegations outlined in the Statement of Reasons. If clearance is granted after the hearing, the DOHA notifies the applicant as well as their employer. If they are still denied security clearance after the hearing, they have the opportunity to appeal.

Appeal

On average, about 20-30% of the hearing decisions are appealed. A written appeal must be submitted by the applicant within 15 days, which is then put in front of a board of three administrative judges. Because no new evidence is submitted between the hearing and the appeal, most appeals make the claim that the evidence doesn’t support the decision or there was not enough consideration take regarding the mitigation evidence during the hearing. The board of three administrative judges in appeal court can consult with the administrative judge who proceeded over the hearing for more clarification.

The decision made in the court of appeals is final. Any applicant whose clearance has been officially denied or revoked by the administrative judges is not allowed to reapply for clearance for at least a full calendar year from when the first denial decision was made

Seeking Security Clearance Denial Counsel

When faced with the first steps of a security clearance denial, it is a good idea to seek legal help in regaining or gaining security clearance. A DOHA attorney will know the ins and outs of the security clearance application and process and will be able to offer valuable advice and assistance in securing the necessary clearance to gain or continue employment.

Related National Security Articles