How to Appeal a Denied or Revoked Security Clearance

Virginia is home to more federal employees than any other state, coming in second only to the District of Columbia by raw numbers. In a state where so many professionals depend on security clearances for defense, intelligence, and federal contracting work, being denied a security clearance or having one revoked can mean losing one’s livelihood. And while government employees and contractors who have had their security clearance denied or revoked do have some recourse, the process and rules for appealing those denials and revocations differ significantly from corporate HR processes. As such, you should consider working with an experienced Norfolk federal employment attorney if your security clearance is in jeopardy.

How to Get a Security Clearance

Obtaining a security clearance is not simply a matter of “applying” for one. Instead, a federal agency or contractor must sponsor an employee for a clearance. That process involves several stages:

Initiation: The sponsor submits a request that contains a detailed questionnaire covering personal and financial matters, as well as foreign relationships.
Investigation: A government agency, usually the Defense Counterintelligence and Security Agency, conducts a background investigation.
Adjudication and decision: An adjudicator uses federal guidelines to evaluate the candidate’s fitness for access to classified information and renders a decision.
Continuing evaluation: Clearance holders are subject to ongoing monitoring.

Amu errors, omissions, or inconsistencies by the applicant during this process can lead to a denied clearance if left uncorrected.

Grounds for Denial or Revocation

Security clearance determinations are based on 13 adjudicative guidelines that generally cover areas such as allegiance to the United States, foreign influence, financial responsibility, alcohol or drug use, and personal conduct. The idea is that each candidate’s “whole person” is evaluated, with adjudicators taking into account all relevant factors and weighing both positive and negative information appropriately.

Common grounds for denial or revocation of security clearances include:

Falsification or omission in the candidate’s provision of information
Close or undisclosed foreign contacts
Significant debts or a history of irresponsible financial behavior
Criminal arrests, substance abuse, or mental health issues
Misuse of classified materials
Security violations

For each guideline, the rules direct adjudicators to consider both aggravating and mitigating circumstances, so the mere fact that something in an applicant’s history raises a security concern does not necessarily mean that they won’t get a security clearance. For more information about aggravating and mitigating factors in security clearance adjudications, please speak to a Norfolk federal employment attorney.

The Appeal Process

The exact process for appealing a denied or revoked security clearance depends on whether the applicant is a federal employee or government contractor, as well as the agency for which the applicant is seeking a security clearance. However, the process generally proceeds as outlined below. For more specific information about the circumstances of your appeal, please speak to a Norfolk federal employment attorney.

Notice of Denial or Revocation

If an agency intends to deny or revoke a security clearance, it must provide written notice — a letter of intent and a statement of reasons (SOR) — setting forth the specific grounds on which the application was denied and citing the applicable adjudicative guidelines. Recipients then have a set period in which to respond (usually 30 days). The SOR is a critical document for the appeals process because it outlines the candidate’s specific deficiencies, providing a basis for the appeal.

Review, Prepare, and Obtain Records

Most applicants have only a short time in which to respond to a security clearance denial or appeal. As such, they should make the most of it by reviewing each allegation in the SOR thoroughly and preparing a sufficient response. Part of that process is obtaining the evidence on which the agency relied in denying the application, as well as any mitigating evidence to which the applicant has or can gain access. For example, if the SOR identifies outstanding medical debt, the applicant could present a payment plan they have successfully followed since the debt accrued.

Prepare a Written Response

Assemble all of the arguments and evidence you have prepared into a written response and submit it to the appropriate party. The written response should generally be a point-by-point rebuttal of the objections raised in the SOR, supported by exculpatory evidence. It’s particularly important to secure professional assistance at this stage, as an experienced attorney can ensure the applicant presents the strongest possible arguments.

Request a Hearing (Optional)

Applicants whose security clearances have been denied or revoked may also request a hearing, either in lieu of or in addition to submitting a written response. The hearing is conducted before an administrative law judge and is quasi-judicial in nature, meaning that the applicant has an opportunity to testify under oath, present evidence and witnesses’ witnesses, and cross-examine the government’s evidence. While written responses are considerably less involved than formal hearings, hearings give applicants a much better opportunity to make their case directly to a decision-maker and to respond to adverse evidence in real time.

Await a Decision

Upon the submission of a written response or the conclusion of a hearing, the agency will issue a decision. The range of options for decisions includes issuing or reinstating the clearance, recommending further corrective action, or denying or revoking the clearance. If the applicant is still unhappy with the appeal’s outcome, they may be able to appeal to a higher authority, such as the agency’s Personnel Security Appeal Board or a federal court.

Save Your Security Clearance With Help From a Norfolk Federal Employment Attorney

A denied or revoked security clearance can have devastating impacts for federal employees and government contractors. If your security clearance is in jeopardy, you will need experienced and capable legal counsel to have the best chance of saving it. To get started, please contact a Norfolk federal employment attorney at Pierce / Jewett by calling 757-624-9323 or using our online contact form.