If you are in the process of appealing the loss or denial of your security clearance, you probably feel quite intimidated. Applying for a confidential, secret, or top-secret security clearance (or “L” and “Q” clearance with the Department of Energy) can open all your life details to analysis and interpretation. The process following the loss or denial of clearance can be even scarier. Most clearance suspensions or denials involve drug or alcohol involvement, sudden financial debt or affluence, reckless sexual behavior, gambling addiction, undue foreign influence, technology misuse, or other behavior the government considers a risk to national security.
If you are a federal employee or government contractor, and your security clearance has been suspended, numerous avenues of recourse are available to you. If you believe that your clearance has been wrongfully suspended, or you have been wrongfully denied a security clearance, you can request a hearing on the matter and potentially pursue an appeal beyond that.
The best way to do it is with the help of a New Mexico security clearance attorney.
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How to Respond to a Suspension
If your security clearance has been suspended, it is critical to understand the deadlines and procedures in place for appealing that initial decision. Usually, a license is suspended pending revocation or reinstatement. Executive Order 12968, signed by President William J. Clinton, attempted to streamline and simplify the processes governing security clearance application, review, suspension/revocation, and appeals. However, the procedures for each agency can be slightly different, and it is important to contact an attorney as early in the process as possible to make sure you do not miss an important deadline.
An individual whose license is suspended on the basis that the individual no longer meets the standards for access to classified information usually receives prompt notice that his or her license has been suspended. The notice should inform the license holder of the agency’s concern(s) and include a copy of the procedures and deadlines involved.
Frequently, the license holder must request a hearing, and the agency must provide a comprehensive and detailed written explanation of the basis for its preliminary decision and the documents involved in its decision. A license holder has the right to be represented by counsel of his or her choice and to request any reports, documents, or other records in the investigation file. The license holder also has the right to submit a written reply to the initial findings and concerns of the agency. It is important to have the advice of a security clearance attorney before writing this reply.
Once you, as the license holder, request a hearing, your attorney will work with the attorney for the government agency and the hearing officer to create a schedule of key events and deadlines to exchange materials. Most often, the license holder will need to hire an expert witness or witnesses to testify on his or her behalf at the hearing—yet another reason to hire an FBD Law attorney, as we regularly work with experts in these types of cases.
It is crucial that any favorable evidence be placed in the record before or during the hearing. In some cases, the hearing officer may also grant the license holder an additional short period of time to supplement the record after the hearing is held. If something is not made part of the record, it does not exist for the purposes of your security clearance. The license holder may also need to enter treatment or therapy to help address the agency’s concerns and demonstrate a commitment to the process of self-improvement.
The license holder has an opportunity to appear personally at the hearing and usually must do so if he or she hopes to retain the clearance. A court reporter will be present to make a stenographic transcript of what is said. Most often, the license holder will be able to participate in the hearing close to home, as most agencies have adopted the option to appear locally by video. Some proceedings, especially for issues involving top-secret clearances, require the license holder to appear in person at the agency headquarters, usually in the Washington, D.C. area.
Generally, the hearing officer issues a decision within 30 days of the hearing, and the agency most often approves the hearing officer’s decision. The license holder may have a right to appeal the hearing officer or agency’s final decision to an Appeals Board, which is almost always final. The Appeals Board may only review materials contained in the record.
How to Respond to a Denial
The federal government may need up to six months to approve or deny your application for security clearance, although it can take longer, and the government has no deadline. If you are denied, you will be issued a notice (a “Statement of Reasons” or SOR) that describes the specific reasons, disqualifiers, or areas of concern that determined the decision.
If you are a federal employee who disagrees with the decision, you can first request to see the documents and records on file that led to the denial. You can then respond in writing to the reasons cited in the SOR. This response (which may be required in as few as 15 days) should explain why the decision may be wrong, show any mitigating factors that would deserve reconsideration of the decision, and cite relevant legal precedents.
If the clearance adjudicator agrees with you, you can expect your clearance to be given. If not, you must move on to the formal hearing stage.
You may also be given a list of conditions (with the reasons for denial) that if you meet, your denial may be reconsidered. Every case is different, but your mitigating factors might include proof that you have engaged only occasionally in an act or weren’t involved in it for a long time, or you have completed a counseling program linked to the disqualifying factor, or you have no connections to a country considered a risk. There are a host of mitigating factors that could prove your eligibility for access to classified information and finally grant you a security clearance.
Appealing the Decision
If you are a federal employee or a government contractor, you can formally appeal a security clearance revocation or denial. As a federal employee, you can request a hearing before the appeals board or administrative judge, where your case will be heard and evaluated.
If you are a government contractor, expect to be asked a series of questions that you must answer within 20 days. You must also state whether you want to have a written decision or a formal hearing about your response. In both cases, the documents and records related to the decision will be available to you. A formal hearing may involve further evidence and witnesses and contractors with important security concerns usually prefer it.
Can You Reapply?
Federal contractors, civilian government employees, and military employees can reapply for a security clearance after one year. Just because you were previously denied a security clearance does not mean that you will not be able to get one when you reapply. Today, keeping your current job or applying for others is often conditional upon your ability to get and keep a certain required level of security clearance eligibility, including for Positions of Trust (POTs). In many cases, no security clearance means no job. You may be the most qualified candidate for a position, but you won’t get the job if you can’t get the clearance that goes with the job.
If you are facing a security clearance denial, you should seek help from a skilled and experienced attorney. The lawyer will make sure your written responses are clear and properly researched, and that they are completely inclusive of the mitigating factors that can verify your security clearance.
At your hearing, your security clearance attorney will know how to present your mitigating evidence to the appropriate board or judge. Your lawyer will keep your appeal moving forward on time.
If your case is complex, your attorney can question witnesses and better understand what kind of information hearing officers and judges need to thoroughly evaluate your case.
Our team at FBD Law has experience in this area. We’re here to offer you the help you seek and answer your questions. Contact FBD Law and schedule your first consultation.