How Do You Appeal a Federal Security Clearance Denial?
If you need a security clearance in order to work for the federal government, finding out that your security clearance application has been denied can be devastating. Fortunately, however, a denial isn’t necessarily the end of the process. Federal employees and job applicants can appeal their security clearance denials in many cases—though doing so requires a clear understanding of the processes and procedures involved.
Responding to Your Statement of Reasons (SOR)
When a federal agency denies a security clearance application, it must provide a written explanation to the applicant. This written explanation is called a Statement of Reasons (SOR).
If you have received a Statement of Reasons, your SOR should outline the basis for the denial of your security clearance application. It should also explain the process for formally responding to the SOR—which starts with submitting a written response that specifically admits or denies each of the allegations in the SOR and is signed under oath or affirmation.
The reasons for your security clearance denial will be based on the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (the “Adjudicative Guidelines”). As Section 147.2(c) of the Adjudicative Guidelines explains, “The ultimate determination of whether the granting or continuing of eligibility for a security clearance is clearly consistent with the interests of national security must be an overall common sense determination based upon careful consideration of [certain issues], each of which is to be evaluated in the context of the whole person.” The issues considered when evaluating security clearance applications—and which can lead to security clearance denials—include:
- Allegiance to the United States
- Foreign influence
- Foreign preference
- Sexual behavior
- Personal conduct
- Financial considerations
- Alcohol consumption
- Drug involvement
- Emotional, mental and personality disorders
- Criminal conduct
- Security violations
- Outside activities
- Misuse of information technology systems
As the Adjudicative Guidelines also explain, “[a]lthough adverse information concerning a single criterion may not be sufficient for an unfavorable determination, [an] individual may be disqualified if available information reflects a recent or recurring pattern of questionable judgment, irresponsibility, or emotionally unstable behavior.” Thus, when reviewing your SOR, it is imperative to make sure you understand all of the factors that contributed to your denial so you can address them accordingly.
Preparing a written response to an SOR requires a careful, comprehensive and forward-thinking approach. It also must be done promptly. In most cases, you must submit your response within 20 days, and if your response is even a day late, this can result in your denial becoming final.
Responding to a Statement of Reasons can have three potential outcomes. The first and best-case scenario is that the denial is reversed based on the information you provide. The second possibility is that the agency upholds your denial and an administrative law judge (ALJ) affirms the denial without a hearing. Third, the agency may uphold your denial, and if you submit a timely request, the ALJ will schedule a hearing for your appeal.
The Importance of Preparing a Comprehensive Response to Your SOR
Generally speaking, the more information you include in your response to the SOR, the better. You want to give the agency every reason to reverse its decision and, if necessary, give the ALJ every reason to rule in your favor. While you can—and generally should—request a hearing, you should treat the hearing as an opportunity to reaffirm your position and overcome any new challenges rather than a second chance to provide information in response to the SOR. If you can provide a clear written explanation of the issues with the SOR, this will generally put you in the best position possible to achieve a favorable resolution.
Another reason to devote substantial time and attention to your SOR response is that if the ALJ rules against you, you can appeal this decision as well. However, at this stage of the process, the appeals board will typically only consider the evidence that has already been presented. Rather than serving as an additional opportunity to present evidence in your favor, this appeal primarily serves as an opportunity to raise procedural issues with the events that have already transpired (i.e., that the ALJ failed to give due consideration to certain favorable evidence).
Hiring a Lawyer to Assist with Your Security Clearance Denial Appeal
Even though submitting a written response to your SOR may seem like a fairly informal process, it is important to hire a lawyer to assist you. Your written response needs to be clear, complete and technically compliant, and it must effectively address all of the issues that are responsible for your security clearance denial. A lawyer who is familiar with the Adjudicative Guidelines and the appeals process will be able to help you prepare a well-crafted response that anticipates the agency’s counter-arguments as well as any questions the ALJ may have about your background or qualifications.
What If You’re Running Out of Time?
As we discussed above, most SORs have a strict 20-day response deadline. Sometimes the deadline can be slightly longer (i.e., 30 or 45 days), but the deadline is always strict—if you miss it, you don’t get a second chance. So, what if you didn’t take action immediately after receiving your SOR, and now you are running out of time?
In this scenario, you might be able to request an extension. For example, the U.S. Department of Defense (DOD) regulations governing security clearance denials state: “Requests for an extension of time to file an answer may be submitted to the Director, [Defense Office of Hearings and Appeals (DOHA)], or designee, who in turn may grant the extension only upon a showing of good cause.” This means that an extension is not guaranteed. As a result, if you are running out of time to respond to your SOR, you should contact a lawyer promptly, and your lawyer can help you determine your best path forward.
Speak with a Lawyer About Your Federal Security Clearance Denial
If you have received a Statement of Reasons and would like to know more about what you should do next, we invite you to get in touch. To speak with a lawyer about your federal security clearance denial in confidence, please call 410-514-6099 or contact us online today.