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Can I Appeal Security Clearance Decisions and Save My Cleared Career
Learn about your options to appeal a security clearance revocation from national security attorney Brittany Forrester, Esq.
Did you receive an unfavorable decision after your Defense Office of Hearings and Appeals (DOHA) hearing before an Administrative Judge? Under Department of Defense (DoD) Directive 5220.6, DoD employees and contractors are provided an opportunity to appeal a decision to deny or revoke a security clearance.
After the hearing has been held, the Administrative Judge will issue a written decision. This written decision includes findings of fact and conclusions of law and is based upon the record evidence, the current national Adjudicative Guidelines, and case law.
In all decisions, DOHA applies the “clearly consistent with the interests of national security” standard. The U.S. Supreme Court has held that the “clearly consistent with the interests of national security” test indicates that “security-clearance determinations should err, if they must, on the side of denials.” Dept. of Navy v. Egan, 484 U.S. 518, 531 (1988).
Deadline to Appeal
The Administrative Judge’s decision may be appealed by the losing party to the DOHA Appeal Board. Notices of Appeal must be received by the Board within fifteen (15) calendar days of the date that appears on the Judge’s decision. The Board will notify the appealing party when its appeal brief is due.
What to Include in Your Appeal
The appeal brief should clearly articulate what the Judge did wrong and why the Judge’s error changes the outcome of the case. An Applicant may retain counsel to submit the appeal brief on his or her behalf or may proceed on their own.
The Appeal Board’s authority is to review the Judge’s decision for error. As a result, the Appeal Board is not permitted to receive or consider new evidence that was not initially before the Hearing Office Judge. The prevailing party is permitted to respond to the appeal brief with a reply brief.
How Your Appeal is Reviewed
After each party has submitted its brief, the case is presented to a panel of three DOHA Appeal Board Judges. This panel reviews the entire case file that was before the Hearing Office Judge, to include the initial written response, hearing testimony, and hearing exhibits. The panel also considers both the appeal and reply briefs and issues a written decision.
Appeal Decision-Making Process
The Appeal Board gives deference to the Judge’s credibility determinations in deciding whether the Administrative Judge’s findings of fact are supported by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the record.
The Appeal Board determines whether the Administrative Judge adhered to the procedures required by Executive Order 10865 and DoD Directive 5220.6. The Appeal Board can remand or reverse for errors of law or fact or where the Administrative Judge’s rulings or conclusions are arbitrary, capricious, or contrary to law.
While prior DOHA decisions are persuasive, they are not binding on the DOHA appeal panel. However, the appeal panel often cites to past decisions when articulating the analysis of its decision.
Course of Action if Your Appeal is Not Successful
Should the appeal panel deem the clearance to be ultimately denied or revoked, an Applicant can reapply for security clearance twelve (12) months from the Hearing Office Judge’s decision date.
Things to Consider Before Deciding to Appeal
As new testimonial or documentary evidence is not considered on appeal, the appeal process can be challenging. When reviewing whether to appeal the decision or wait twelve (12) months to reapply, it is important to consider the chance of success on appeal.
Oftentimes, Judges do not articulate in the decision a clear analysis of the mitigating conditions or the whole person concept which leaves an opportunity to attack those deficiencies on appeal. Alternatively, the Judge may have made a credibility determination the Applicant may disagree with, but the Appeal Board often gives deference to the Judge’s credibility determinations as the Hearing Judge was present during the hearing testimony.
Taking these factors into consideration, it is important to understand the strategy of the appeal to understand whether it may be worth it to move forward or to wait to reapply. For example, in cases such as Guideline E, Personal Conduct, involving a lack of candor, it may be difficult to appeal the decision if the Judge discredits the Applicant’s testimony but considers each piece of evidence specifically in the decision. As such, a full review of the hearing testimony along with the documentary evidence should be reviewed when determining the likelihood of success on appeal.
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Tully Rinckey attorneys understand that issues involving security clearances can be challenging, and they will handle your matter with the attention it deserves. If you have additional questions about rejection, or revocation of a security clearance, our team of attorneys is available to assist you today. Please call (888) 677-2608 to schedule a consultation or schedule a consultation online.
Brittany D. Forrester, Esq., is a Senior Associate at Tully Rinckey PLLC, where she focuses her practice primarily on national security law with experience in federal employment matters. Brittany represents clients who have security clearance issues with agencies such as the FBI, CIA, NSA, DIA, DOD, NRO, NGA, and DOE.
