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Military Law Newsletter - Spring 2011

Military Law News

Rebutting and Appealing Security Clearance Denials

by William H. Henderson

The Defense Industrial Security Clearance Office ( DISCO ) is a Central Adjudication Facility (CAF) that is part of the Defense Security Service. DISCO processes about 150,000 personnel security clearances each year for DoD contractors and contractors of 23 other federal agencies. These are referred to as industrial cases. DISCO favorably adjudicates more than 94% of these cases after the investigations are conducted by the Office of Personnel Management. If DISCO cannot affirmatively find that it is clearly consistent with the national interest to grant or continue a personnel security clearance, the case is referred to the Defense Office of Hearings and Appeals ( DOHA ) for further review. DOHA has the option to request further investigation, send out written interrogatories, interview the applicant, and/or require the applicant to undergo a psychological evaluation. Of the approximately 8,000 cases received each year, DOHA favorably adjudicates about 72% and directs DISCO to grant or continue the clearances. DOHA makes preliminary decisions to deny or revoke clearances on the remaining 28%. When this occurs, DOHA sends the applicant a “Statement of Reasons” detailing the specific reasons why it intends to deny or revoke the clearance and advises the applicant of their right to submit a written rebuttal and their right to a hearing.

The Department of Energy (DOE) has its own Office of Hearing and Appeals that makes initial decisions and handles appeals on industrial and non-industrial security clearances. DOE’s procedures are similar to DOHA’s.

THE STATEMENT OF REASONS (SOR)

About 23% of applicants who receive an SOR drop out of the process by not responding to the SOR; their clearances are denied or revoked without further action. For an applicant who chooses to rebut the SOR, the written rebuttal must be received at DOHA within 20 days from the date the applicant receives the SOR. This rebuttal can be made with or without a request for a hearing. Applicants may request an extension of time to file a rebuttal to the SOR, but they must have a good reason. The rebuttal must include written answer that admits or denies each allegation in the SOR and should provide detailed information that rebuts, explains, or mitigates each allegation.

Upon receipt of the SOR rebuttal, DOHA sends the applicant a File Of Relevant Materials (FORM). The applicant has 30 days from receipt of the FORM to submit a written response to the FORM, setting forth objections, rebuttal, extenuation, mitigation, or explanation, as appropriate. If a review of the rebuttal to the SOR and/or response to the FORM determines that the allegations are unfounded, or evidence is insufficient for further processing, DOHA withdraws the SOR and DISCO grants or continues the clearance. Otherwise, the case is assigned to a DOHA Administrative Judge (AJ) who will consider the case with or without a hearing.

About 88% of case decisions based only on a review of the written record by a DOHA AJ result in clearance denial or revocation. About 65% of case decisions based on a hearing result in clearance denial or revocation. About 70% of applicants who respond to an SOR request hearings.

THE HEARING

Either the applicant or a DOHA attorney (known as a Department Counsel—DC) can request a hearing. If a hearing is requested, the applicant will be notified at least 15 days in advance of the time and place of the hearing. The hearing will be held at a location within a major city near the applicant’s place of employment or residence. The AJ may require a pre-hearing conference. The applicant must appear at the hearing in person with or without an attorney or a personal representative. Hearings are generally open, except when the applicant requests that it be closed, or when the AJ determines that there is good cause for keeping the proceedings closed.

As far in advance as practical, the DC and the applicant may request information from the opposing party regarding witnesses or other evidence to support or rebut, explain, extenuate or mitigate information contained in the SOR that may be presented at the hearing. At the hearing witnesses and other evidence are subject to cross examination, and a verbatim transcript is made of the hearing.

After the hearing, the AJ makes a written decision that includes not only the clearance decision but also all findings of fact, policies, and conclusions regarding the allegations in the SOR. This written decision is sent to both the applicant and the DC. DOHA then directs DISCO to make appropriate notification to the applicant’s employer. If the clearance is denied or revoked, the applicant is notified of appeal procedures.

THE APPEAL

Either the applicant or the DC can appeal the DOHA AJ’s decision. About 20% to 30% of these decisions are appealed. This must be done in writing within 15 days of the AJ’s decision. A ppeals go before a DOHA Appeal Board of three AJs. A written appeal brief must be received by the Appeal Board within 45 days from the date of the AJ’s original decision. If the DC appeals, a copy of the brief is sent to the applicant. The applicant has 20 days to submit a written reply brief, if any. No new evidence is received or considered by the Appeal Board; therefore, most appeals claim that the evidence did not support the decision and/or insufficient weight was given to applicant’s mitigating evidence. Except for rare circumstances where there were procedural errors, an Appeal Board’s decision is final. The Appeal Board issues a written decision addressing the material issues raised on appeal, and a copy is sent to both parties. The Appeal Board can affirm, reverse, or remand a case to the original AJ with instructions for further review.

In the vast majority of appeals, the DOHA Appeal Board affirms clearance denials. An applicant whose clearance has been finally denied or revoked is barred from reapplying for a clearance for a period of one year from the date of the initial adverse clearance decision. Industrial and non-industrial applicants do not have a right to contest security clearance denials or revocations in the courts. Documents entitled, “Prehearing Guidance” and “Appeal Instructions” are posted at the DOHA website.

INDUSTRIAL VERSUS NON-INDUSTRIAL CLEARANCES

There are differences between the adjudication of industrial cases at DOHA and the adjudication of cases involving military/federal civilian applicants and cases involving Special Access Programs. In non-DOHA cases, applicants who receive an SOR (also known as a Letter of Intent or a Letter of Instructions—LOI) do not have a right to a hearing. The applicant’s written rebuttal to the SOR is reviewed by a supervisory adjudicator who makes the clearance decision. If the applicant’s clearance is denied or revoked, the applicant then has a right to appeal. In making the appeal, the applicant has the choice of submitting a written appeal with supporting documents directly to their Personnel Security Appeal Board (PSAB) or requesting a personal appearance before a DOHA AJ. Procedures and timelines for SOR rebuttals and appeals differ slightly for each CAF/PSAB. Applicants who choose to appear before a DOHA AJ to present their appeal are permitted to explain their case (with or without an attorney or personal representative) and submit supporting documents, but it is not a hearing. They may present witnesses on their behalf, but there usually is no cross examination. The DOHA AJ evaluates all the information presented and makes a written clearance recommendation to the applicant’s PSAB. PSABs are composed of three members and decisions are made by a majority vote. PSABs notify applicants of their final decision and include reasons for their decision.

At first glance it may seem that applicants in industrial cases have greater procedural protections and administrative remedies than in non-industrial cases, because of their right to a hearing. But that hearing is an adversarial process in which the Government is represented by an attorney experienced in security clearance matters, and the applicant may not be able to afford equal representation. When industrial applicants appeal their cases, they cannot introduce new evidence; whereas, applicants in non-industrial cases can submit new evidence, and the PSAB can take an entirely fresh look at the case and make what they believe to be the appropriate decision without regard for the lower-level decision. Lastly, in industrial cases, either party (the applicant or the DOHA DC) can appeal the decision of a DOHA AJ, but in non-industrial cases only the applicant has the right to appeal to a PSAB.

Note: This article was originally published in 2008 and updated in November 2012. In October 2012 DISCO and DOHA became part of a new consolidated DOD CAF and have been renamed Industrial Division A and Industrial Division B, respectively. 

William H. Henderson is a retired federal clearance investigator, President of Federal Clearance Assistance Service ( FEDCAS), and author of Security Clearance Manual and Issue Mitigation Handbook .

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