Appealing Your Security Clearance Denial: Why You Need An Attorney
If you are a federal employee, a government contractor, or a member of the military, a security clearance can make your career. Consequently, a security clearance denial can just as easily break your career. In this legal guide, you will learn what can lead to a security clearance denial and how an attorney can help you during the security clearance denial appeals process. Use the table of contents to move around the article for specific information.
Table of Contents
- The Law
- 13 Factors the Government Considers
- Reasons for Denial
- Statement of Reasons
- Letter of Intent
- Appeals for Federal Employees
- File a Formal Appeal
- Appeals for Government Contractors
- Let Us Help
“A clearance does not equate with passing judgment upon an individual’s character. Instead, it is only an attempt to predict his possible future behavior and to assess whether, under compulsion of circumstances or for other reasons, he might compromise sensitive information. It may be based, to be sure, upon past or present conduct, but it also may be based upon concerns completely unrelated to conduct, such as having close relatives residing in a country hostile to the United States. To be denied clearance on unspecified grounds in no way implies disloyalty or any other repugnant characteristic. The attempt to define not only the individual’s future actions, but those of outside and unknown influences renders the grant or denial of security clearances an inexact science at best.” Dep’t of the Navy v. Egan, 484 U.S. 518, 520, 108 S. Ct. 818, 820 (1988)
A security clearance investigation will shine a spotlight on the darkest corners of your past. An investigator’s primary objective is to gauge national security risks. Therefore, you can expect every detail of your life to be thoroughly scrutinized.
A multitude of past blemishes could bar you from obtaining a security clearance — from drug use to defaulting on a mortgage to a history of mental health issues. Essentially, any behavior that could leave you vulnerable to bribery or extortion will raise a red flag.
Call a Security Clearance Attorney
Security clearances allow federal employees to perform essential functions of their jobs and advance in their careers. In many cases, no security clearance means no job — regardless of your qualifications or experience.
However, if your security clearance has been denied or revoked, do not lose hope. There is legal recourse available. Still, the appeals process is both highly technical and extremely time-sensitive. An experienced security clearance denial attorney can mean the difference between a successful security clearance appeal or a failed one.
Our security clearance denial attorneys at Robinson & Henry, PC will ensure that your written response to the appropriate government agency has been thoroughly researched, is clearly stated, and fully mitigates the agency’s concerns. Call 303-688-0944 today to begin your free case assessment. Your future could be on the line.
Security clearances are governed by a complex framework of intersecting laws and regulations. Most important are Executive Order 12968, “Access to Classified Information” and Department of Defense Regulation 5200.2- R, “Personnel Security Program.”
Issued by President Bill Clinton in 1995, Executive Order 12968 laid out the principles governing the security clearance process. Under these regulations, U.S. officials must conduct an extensive background check on all security clearance applicants. They will then use the information discovered during the background investigation to determine whether someone qualifies for a security clearance.
If an agency denies your clearance, you have an opportunity to conduct discovery and respond in writing. For example, you could provide a letter of explanation and affidavits from other people.
13 Factors the Government Considers
The government uses 13 adjudicative guidelines to determine whether someone should obtain access to confidential information. These decisions are based on national security and a “common sense” judgment of an individual’s overall trustworthiness. View a breakdown in this infographic:
A. Allegiance to the United States
Guideline A concerns unlawful speech or action to influence, harm, or overthrow local, state, or federal government, or to prevent others from exercising their constitutional rights.
Involvement in extremist organizations, such as hate groups, anti-government patriot groups, and single-issue groups (ex. Earth Liberation Front) falls into this category. Even if you did not participate in illegal activities, membership alone in an organization that advocates or supports illegal activities can create an allegiance issue under Guideline A.
B. Foreign Influence
Having strong ties to family or friends living overseas could potentially pose a national security risk. The rationale is that you could be coerced into providing classified information due to threats to (or from) these foreign influences.
For example, someone from Iraq applies for a security clearance. This person maintains contact with family members still living in Iraq and even provides financial support. Additionally, civil unrest and terrorist activity in their home county pose a heightened risk of coercion. This person is vulnerable to threats that could force them to decide between loyalty to the U.S. and protecting their family.
C. Foreign Preference
If the government denies your security clearance under Guideline C, this means investigators are concerned that you could be prone to providing information or making decisions that are harmful to national interests.
Possessing a current foreign passport, or previously seeking or holding political office in a foreign country, could raise concerns in the security clearance process.
D. Sexual behavior
Sexual behavior is rarely an issue in the security clearance process unless another illicit factor is involved. Examples include viewing illicit content on a government device, watching illegally posted material on a pornographic website, or being part of an illicit sex business such as human trafficking or prostitution.
Potential disqualifying conditions include:
- sexual behavior of a criminal nature — regardless of whether you were prosecuted
- a pattern of compulsive, self-destructive, or high-risk sexual behavior that you are unable to stop
- sexual behavior that would leave you vulnerable to coercion, exploitation, or duress
- sexual behavior of a public nature and/or that which reflects lack of discretion or judgment
E. Personal Conduct
This guideline encompasses a wide variety of dishonest or unreliable behavior not specifically covered under other adjudicative criteria. Most security clearance denials involving personal conduct concern intentionally falsifying relevant information on the Standard Form-86 (the questionnaire that security clearance applicants fill out for background investigation purposes).
Other “personal conduct” issues include:
- failure to cooperate with the background investigation
- a pattern of dishonest, unreliable, or rule-breaking behavior
- vulnerability to coercion
- association with people involved in criminal activity
- violation of a written commitment made as a condition of clearance or employment
F. Financial Considerations
Most potentially disqualifying conditions under Guideline F can be distilled to one particular security concern: delinquent debt. Specifically, how you handle that delinquent debt is often a deciding factor in the security clearance process. If you ignore your financial obligations, it stands to reason that you may also ignore your responsibility to safeguard classified information.
G. Alcohol Consumption
Don’t worry — your occasional glass of wine with dinner will not trigger a security concern. However, if your drinking habits speak to a deeper, ongoing problem, that may sound alarms. Investigators are looking for indicators of current alcohol abuse or dependence. The adjudicative guidelines state that:
“Excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses and can raise questions about an individual’s reliability and trustworthiness.”
Put quite simply, alcohol abusers are more likely than others to engage in careless or impulsive behavior that could result in the unauthorized disclosure of classified information. Here are a few red flags:
- Evidence of impaired judgment or misconduct while under the influence of alcohol
- Negative impact on work/school performance, finances, personal or professional relationships
- Failure to comply with court-ordered alcohol education, evaluation, treatment, or abstinence
- Diagnosis of alcohol abuse or alcohol dependence by a qualified medical professional
- Relapse after completion of an alcohol treatment program
H. Drug Involvement
Under federal law (50 U.S.C.S. § 435b), you cannot be granted a security clearance if you are currently using illegal drugs. Using illegal drugs a few months prior to submitting a clearance application form can be considered current use.
Past drug abuse is evaluated based on:
- which drugs you used
- frequency of drug use
- how recent the drug use
- circumstances of drug use
- effects of drug use (ex. mental health, employment, finances, arrests)
I. Emotional, Mental, and Personality Disorders
This guideline takes into account the mental, personal, and emotional issues that can impact your judgment and lead to impaired reliability or trustworthiness. A diagnosis is not necessary to raise a psychological condition concern. A history of dysfunctional, violent, or bizarre behavior can sometimes be enough grounds to deny a security clearance if it is not properly mitigated.
Executive Order 12968 states:
“No negative inference concerning the standards in this section may be raised solely on the basis of mental health counseling. . . . However, mental health counseling, where relevant to the adjudication of access to classified information, may justify further inquiry to determine whether the standards of subsection (b) of this section are satisfied, and mental health may be considered where it directly relates to those standards.”
J. Criminal Conduct
Criminal activity “[b]y its very nature… calls into question a person’s ability or willingness to comply with laws, rules and regulations.” 32 CFR Subtit. A, Ch. I, Subch. D, Pt. 147
Criminal offenses are divided into three categories: infractions, misdemeanors, and felonies. For security clearance purposes, an infraction is a crime for which the maximum possible penalty is a fine. A misdemeanor is a crime for which the maximum possible penalty is incarceration for up to one year. A felony is a crime for which the maximum possible penalty is incarceration for more than one year.
An exception in the Standard Form-86 allows applicants to withhold information about certain expunged drug convictions. This exception only applies to drug convictions and expungement orders in a federal court.
Consequently, you must list all applicable dismissed charges and convictions on the Standard Form-86 — even if the record was sealed, expunged, or otherwise stricken from a state or local court record.
K. Security Violations
This guideline deals with your ability to securely handle protected information. The statute spells out a variety of potentially disqualifying actions, including:
- deliberate or negligent disclosure of classified or other protected information to unauthorized people
- collecting or storing classified or other protected information in any unauthorized location
- inappropriate efforts to obtain or view classified or other protected information outside one’s need to know
It is difficult to find examples of honesty. Therefore, investigators will look for past behavior that indicates untrustworthiness.
For example, one applicant left a building unsecured, kept combinations to two safes written on a piece of paper in his wallet, and failed to “double-wrap” sensitive material during its transport. The judge noted the applicant’s “carelessness and inattention to established procedures” when charged with the protection of sensitive material, according to clearancejobs.com (a career network for people with federal security clearances).
L. Outside Activities
Outside activities can raise a security concern if those activities pose a conflict of interest with your security responsibilities. This could include employment or service with:
- the government of a foreign country
- any foreign national, organization, or other entity
- a representative of any foreign interest
- any foreign, domestic, or international organization/person engaged in analysis, discussion, or publication of material on intelligence, defense, foreign affairs, or protected technology
M. Misuse of Information Technology Systems
The final guideline refers to “noncompliance with rules, procedures, guidelines, or regulations pertaining to information technology systems.” CFR § 147.15
The following factors are evaluated in determining the security significance of IT system misuse:
- knowing and willful rule violation
- frequency and extent of rule violation
- amount of potential or actual harm
- the intent of the conduct and degree of malice
Reasons for Denial
You may be denied your security clearance for a wide variety of different reasons.
Some of the most common reasons include:
- Financial problems: Recent bankruptcy, high debt levels, bad credit, or other financial issues could lead to a denial. Any of these issues could put you at risk of exchanging classified information in exchange for financial security.
- History of mental health treatment: It may seem unfair, but a history of receiving psychological counseling or other mental health treatment could cause problems in the security clearance application process. This is especially problematic for current or former military members who are often encouraged to seek treatment as a precautionary measure.
- Foreign influence: If you have extensive contact with people in other countries — especially if you are a child of immigrants, married to an immigrant, or are an immigrant yourself — you may run into problems on this issue. Ownership of overseas property could also be grounds for concern.
- Substance abuse issues: A history of substance abuse — whether involving a drug-related arrest, citation, or alcohol rehabilitation treatment — may lead to your security clearance being denied.
Statement of Reasons
If your security clearance has been denied, you will receive a Statement of Reasons (SOR) from the responsible government agency. This document is extremely important, as it will become the foundation of your appeal.
An SOR details the investigating agency’s factual basis for your security clearance denial or revocation. It is typically issued immediately after a security concern develops. That concern will be reviewed by the federal agency in question.
Letter of Intent
The SOR will be accompanied by a Letter of Intent (LOI). The LOI lists the intent of the agency to deny or revoke a security clearance based on the information stated in the SOR.
The LOI is essentially a warning that investigators found something questionable in your background check. This letter will be either sent to you directly if you are a government employee or sent to your security officer if you are a government contractor.
Appeals for Federal Employees
For federal employees, the appeals process begins with submitting a formal written response to the issues raised in the SOR. It is absolutely necessary that your response lists mitigating factors that could merit a reconsideration of the agency’s decision. Furthermore, the SOR response should also cite relevant legal precedents.
Your written response will be sent to the security clearance adjudicator who is overseeing your case. For most applicants, that adjudicator will be the Department of Defense Consolidated Adjudications Facility (DoDCAF). Several other agencies also have their own separate, but similar, appeals processes.
Upon receiving your formal response, the adjudicator will review your claim and may either:
- approve the security clearance, thus resolving the issue in your favor,
- ask for additional information; or
- deny the application once again.
File a Formal Appeal
If the agency chooses option C, then it may be time to file an official appeal. This will generally include a hearing where you can submit evidence and witness testimony before an administrative judge. After hearing the case, the administrative judge will then issue a recommendation.
Keep in mind that the judge will issue only a recommendation and not a final decision. The final decision is up to the agency’s Personnel Security Appeals Board (PSAB). Still, the judge’s recommendation will carry substantial weight.
Appeals for Government Contractors
The appeals process for employees of private contractors is slightly different from the process for federal workers. Contractors should still receive an SOR from the agency in question — most often the Defense Office of Hearing and Appeals (DOHA) — but they will typically only have 20 days to submit a response to this letter.
The agency will review the response and make a determination. If your written response is not sufficient to overturn the denial, then you should request an official hearing immediately.
Time is of the Essence
You must respond to the SOR or LOI within a certain time frame. In most cases, you will have 15 calendar days from the point of the decision to request a hearing with an administrative judge. Failure to respond within that time frame could mean forfeiting your rights to the security clearance appeals process.
Understand the SOR
Before responding to the SOR, make sure you fully understand the facts as they are listed. The SOR includes the guidelines by which the clearance was revoked or denied. The document may list financial considerations, for example, or past drug offenses.
Request the Investigative File
You have the right to request a copy of your investigative file at any time after the investigation is completed. This will give you access to the records or documents on file that influenced the agency’s decision to deny your security clearance.
Respond to Each Fact
The SOR will spell out in clear and simple terms why your security clearance was denied. For instance, if you have outstanding debt and a home in foreclosure, the SOR will list both issues.
Your responsibility is to confirm, deny, or mitigate each item. When attempting to mitigate the facts, you must include documentation to support your case. For example, you can show receipts that prove your outstanding debt has been paid off.
Just the Facts
Appealing to a judge’s emotions will not help you here. Instead, provide documentation showing concrete proof that your behavior has changed. You will likely have a much better outcome.
Never Admit Anything Not 100% True
If any of the facts stated in the SOR are not entirely accurate, and you doubt the allegations or the accuracy of the details, then it is appropriate to deny the allegations outright.
This is critical, as admitting to anything not entirely true relieves the government of its burden to prove the specific allegations. If you deny the allegation, the government will have to move forward by showing actual proof.
You should never admit to a partially wrong allegation without clarifying what is incorrect. Similarly, you should clarify which part is correct if you are denying a partially true accusation.
Request a Hearing
This is crucial. If you do not formally request a hearing, you waive your right to one. Many applicants waive their right to a hearing by submitting a written response only. When applicants respond on their own, their responses are almost always incomplete or at least fail to mitigate the important issues.
In many cases, a formal hearing greatly increases your chance of winning your appeal. You and your attorney will have the opportunity to speak directly to the judge. Judges also place much more weight on direct testimony, making the appeals hearing the recommended course of action.
Once you request a hearing, your case will be assigned to an administrative judge for a clearance decision based only on the written record.
Security Clearance Denial Appeals Hearing
Security clearance cases generally have two parts to an appeal:
(1) responding to the relevant security concerns (individual disqualifying and mitigating factors)
(2) overall mitigation
The Whole-Person Concept
National security adjudicators are much more interested in lifestyle patterns than they are in any single activity or event. This is also referred to as the ‘whole person’ concept, and it means that no single issue will result in an automatic security clearance denial.
The whole-person concept evaluation focuses on whether you, even with security concerns, are an acceptable security risk. Under this concept, an adjudicator will consider the totality of your conduct and all relevant circumstances.
When mitigating security issues, you should submit information that specifically addresses the applicable conditions. You should also submit information regarding other positive aspects of your life, such as:
- major lifestyle changes
- recognition for professional and academic achievement
- participation in charitable, civic, and service organizations
- other constructive community and professional involvement.
Here are the nine mitigating factors considered in an appeal:
- the nature, extent, and seriousness of the conduct
- the circumstances surrounding the conduct, including whether you knowingly participated
- the frequency and recency of the conduct
- your age and maturity at the time of the conduct
- the extent to which you voluntarily participated in the conduct
- the presence or absence of rehabilitation and other permanent behavioral changes
- the motivation for the conduct
- the potential for pressure, coercion, exploitation, or duress
- the likelihood of continuation or recurrence
Nature and Seriousness of the Conduct
Not all misconduct is created equal. Does your debt come from school loans or a mortgage, rather than from gambling? Does your criminal record stem from possession of drugs, rather than selling or distributing them? These are significant differences — point them out.
Circumstances Outside Your Control
Not everything in your past is your fault. Did you have to work your way through college without much extra support from your parents? This may lead to debt piling up. Do you have a history of trauma or abuse that may help explain your past behavior?
Honesty is truly the best policy when you are appealing a security clearance denial. Being open about circumstances outside your control may put your disqualifying behavior in context for the judge.
Frequency of the Conduct
Was this a one-time occurrence? A huge mistake that will never happen again? Point out that the conduct only occurred one time. Show that you learned from your mistake and moved on.
Age and Maturity
Did the disqualifying conduct happen during your teenage or college years? You’ve probably learned a few life lessons since then. Demonstrate to the adjudicator that you have matured greatly. It is well documented that teenagers and young adults lack the brain development to properly assess risk in the way that more mature adults can.
Steps You Took to Address the Issue
Did you fully address the conduct? For example, have you completed a rehab program for past drug or alcohol issues? Are you continuing to abstain from illegal substances and attending therapy or support groups? If you are in debt, do you have a manageable repayment plan? Show documented proof that you are keeping up with your monthly payments.
Let Us Help: Talk to a Security Clearance Attorney Today
Appealing a denied security clearance is a highly technical process. You need the right attorney by your side — your career could be on the line.
If you received a Letter of Intent to deny, suspend, or revoke your clearance, the military law attorneys at Robinson & Henry PC can help. Our attorneys will work with you to gather evidence of your character that will show your adjudicators the “whole person,” not just the potential security risks. Call 303-688-0944 today to begin your free case assessment.