NEWS + ADVICE
What Happens if Your Security Clearance is Suspended or Revoked
Your security clearance can be suspended or revoked at any time. A suspension or revocation can occur as a result of an incident report or as a result of information discovered during the course of your updated background investigation.
An incident report is a report submitted to the agency notifying it of a developed circumstance which could affect your continued eligibility to hold a security clearance. One example is being charged with a criminal offense. If this happens, you are required to notify your facility security officer, who is then required to notify the agency that granted you a clearance. If the agency determines that the conduct described in the incident report is sufficient to propose to suspend or revoke your clearance, it will send notification to your company notifying you of such.
Department of Defense
If you are a Department of Defense contractor, you will receive what is called a Statement of Reasons (SOR) from the Department of Defense Central Adjudication Facility (DoD CAF). The SOR will outline the reasons the DoD CAF is proposing to suspend or revoke your clearance and will provide instructions for responding to the proposal. Depending on your clearance level, your response to the SOR will either be adjudicated (decided) by an adjudicator at the DoD CAF or by an administrative judge at the Defense Office of Hearings and Appeals (DOHA).
Evaluation by CAF
If your response is evaluated by an adjudicator at the CAF, your response will consist of a detailed written response to the allegations outlined in the SOR. You must admit or deny the allegations.
If you deny the truthfulness of the allegations, you will need to provide a detailed reason and provide any documentation which corroborates your assertions. If you admit any of the allegations, you will need to provide a detailed explanation regarding how the concern has been mitigated.
The adjudicator will review your response to the SOR and will render either a favorable or unfavorable adjudication. If the adjudicator renders an unfavorable adjudication, you have the ability to appeal to the Personnel Security Appeals Board (PSAB). You can either provide a written appeal to the PSAB or you can request a personal appearance in front of a DOHA administrative judge.
If you choose a personal appearance, you will present your case to the administrative judge and the judge will render a recommendation, which will be forwarded to the PSAB. The PSAB will review the original SOR, your SOR Response, and the recommendation of the administrative judge and will make a decision regarding your eligibility for a clearance. The decision by the PSAB is final and cannot be appealed.
Evaluation by Administrative Judge
If your response is evaluated by an administrative judge, you can either request a hearing in front of the judge or request to provide only a written response to the judge. If you request a hearing, you will present your case in front of the judge at a formal hearing. You are entitled to be represented by an attorney. The government will also be represented by an attorney. The hearing is recorded.
After the judge receives a copy of the hearing transcript he will review all information collected during the hearing and will render a decision. If you elect to provide a written response, the government attorney will send you the government’s arguments as to why you should not retain your clearance. You will then provide a written response addressing the government’s concerns. The judge will then review all documentation and will make a decision regarding your clearance.
If the judge denies your clearance, you can appeal the decision to the Appeal Board via a written appeal. If you appeal, the government attorney will have the opportunity to submit a reply brief to your appeal brief. The appeal board will review both briefs and will then render a decision. The decision by the appeal board is final.
Most of the intelligence agencies will send you an untitled letter explaining why the agency has revoked your security clearance. You will generally have two levels of appeal with an intelligence agency and are permitted a personal appearance in front of an agency representative at either your first level or second level appeal. If you elect a personal appearance at the first-level appeal, you will not be able to have a personal appearance at the second-level appeal.
You can be represented by an attorney at the personal appearance. Similar to a written appeal to the CAF, you will admit, deny, explain, and/or mitigate the allegations made against you.
Other Federal Agencies
Other federal agencies have various methods of appealing a suspension or revocation of a clearance. Some only have one level of appeal while others have up to three levels of appeal. Some provide for personal appearances or hearings, while others do not. No matter what method of appeal is provided for, you must still clearly address and mitigate the agency’s reasons for suspending or revoking your clearance.
Whether you are responding to an SOR or appearing in front of a judge, you are entitled to be represented by an attorney. An experienced attorney can assist you with explaining to the agency how and why any concerns have been mitigated.
Greg Rinckey, Esq. is the Managing Partner of Tully Rinckey PLLC, one of the largest federal sector employment law firms in the country. Mr. Rinckey is a recognized leader in the military and federal employment law sectors. Nicole Smith, Esq., a Tully Rinckey PLLC Associate, represents government employees and contractors in a wide range of security clearance matters, to include providing security clearance application assistance and working with clients going through appeals processes for denials, revocations and suspensions. Ms. Smith spent nine years as a national security background investigator.This entry was posted on Wednesday, October 01, 2014 7:00 am