What Are Your Options if You’ve Been Denied a Federal Security Clearance?
The Law Firm of J.W. Stafford | April 14, 2023
Obtaining security clearance is essential for many jobs in the federal sector. Government employees, members of the military, and federal contractors may all need varying levels of security clearance; and without it, even well-qualified individuals may be unable to obtain the jobs they desire.
So, what are your options if you have applied for federal security clearance and your application has been denied?
The answer to this question depends on several factors. Among others, these factors include the reason for the denial as well as the type of security clearance you are seeking to obtain. As the Defense Counterintelligence and Security Agency (DCSA) explains:
“An individual whose security clearance has been denied . . . by the Department of Defense (DoD) Consolidated Adjudications Facility (CAF) or an adjudication facility has the opportunity to appeal the decision. The process for doing so differs between military and civilian personnel and contractors. Executive Order 12968, ‘Access to Classified Information,’ prescribes the process for military and civilian personnel. Executive Order 10865, ‘Safeguarding Classified Information Within Industry,’ outlines the process for contractors.”
With this in mind, determining your next steps starts with understanding why your security clearance application was denied. This will allow you to take any necessary steps to address issues with your background or your application. Then, once you address any issues, you can proceed with the next steps of appealing your security clearance denial.
Receiving a Letter of Intent or Statement of Reasons
Before we discuss the process of appealing a security clearance denial, it is worth touching on a related—but different—topic. This is the receipt of a Letter of Intent or Statement of Reasons.
If you have received a Letter of Intent or Statement of Reasons, this is not a security clearance denial. Rather, it is an indication that there are issues with your application that you need to address in order to avoid a denial. Responding to a Letter of Intent or Statement of Reasons is a far simpler process than filing an appeal. So, if you have received one of these notifications, you have not been denied a federal security clearance (at least not yet), and you will want to work with a lawyer to make sure you address the issues with your background or application in an appropriate and timely manner.
Understanding Why the CAF Denied Your Federal Security Clearance Application
When CAF denies your federal security clearance application, the first step you need to take is to figure out why this happened. If you previously received a Letter of Intent or Statement of Reasons, the denial most likely relates to either: (i) your failure to respond to this prior notification in a timely manner; or (ii) CAF’s determination that you failed to adequately address the issue(s) identified in the Letter of Intent or Statement of Reasons.
But, when CAF denies a clearance application, it will issue a Letter of Notification as well. This letter should further explain the basis for the denial. Some of the most common reasons for federal security clearance denials include:
- Missing information on the security clearance application (including missing personal, family, employment and financial information)
- Missing employment and/or personal references
- Missing explanations of drug usage or disqualifying drug use
- Missing, incomplete or outdated Certification or Release forms
- Criminal conduct
- Disqualifying personal conduct or financial circumstances
- Disqualifying emotional, mental, or personality disorders
- Evidence of foreign influence or outside activities
- Security violations
- Misuse of information technology systems
While some of these issues can be addressed through the appeals process, others cannot. An experienced lawyer will be able to explain whether you have a realistic chance of overcoming your security clearance denial; and, if so, your lawyer can explain the steps you need to take to get ready for your appeal. Your lawyer can also assist with addressing any particularly challenging issues, and your lawyer can help ensure that you have adequate evidence to successfully challenge your denial.
Appealing Your Federal Security Clearance Denial
Once you determine why CAF has denied your federal security clearance and you have taken the steps necessary to address the issues with your background or application, you can then take the steps necessary to challenge your denial. As noted above, the steps you need to take vary depending on whether you are seeking a position in the armed forces, in a federal office or agency, or with a government contractor.
Military and Federal Job Applicants
For military and federal job applicants, the first step is typically to submit an appeal to the Personnel Security Appeals Board (PSAB) or request a hearing before an administrative judge at the Defense Office of Hearings and Appeals (DOHA). If you submit an appeal to the PSAB, the PSAB will review the documentation you submit and make a final decision.
If you request a hearing before an administrative judge at the DOHA, your lawyer will be able to represent you during the hearing and present your case on your behalf. After the hearing, the judge will make a recommendation to the PSAB, which will then render a final decision. In either scenario, if the PSAB affirms your denial, you must typically wait a year before reapplying for a federal security clearance.
Federal Contractor Applicants
For federal contractors, the appeals process starts with requesting a hearing before an administrative judge at the DOHA. As summarized by the DCSA, “[i]f the [administrative judge’s] decision is to deny or revoke the security clearance, the individual has the opportunity to appeal the decision to the Appeal Board. The Appeal Board will review the case file and render its decision. This decision is final and concludes the appeal process.”
Speak with a Lawyer About Your Federal Security Clearance Denial
If you have received a Letter of Intent, Statement of Reasons or Letter of Notification denying your federal security clearance application, you should speak with a lawyer as soon as possible. To discuss your options with a lawyer at The Law Firm of J.W. Stafford, please call 410-514-6099 or request a confidential consultation online today.