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more_legal_areas security-clearance_denialA security clearance appeal may be an appropriate action for an individual whose security clearance was denied or revoked. Security clearance grants access to restricted national security information, knowledge of which is necessary for the completion of certain duties, projects, and occupations. Military members, federal employees, law enforcement, private-sector employees, government contractors, and others may need security clearance to gain access to important classified or secret information.
In order to gain security clearance, an individual must undergo a mandatory background investigation into their personal character and conduct. After a security clearance application is completed by the applicant, investigators all over the world will begin to gather information about the applicant including: birth verification, citizenship of the applicant and family, education, employment history, military service, criminal background, civil and criminal litigation involvement, credit history, time spent abroad, association with undesirable individuals and foreign nationals, lifestyle, drug and alcohol use, mental health, and much more.
After the investigators have gathered and assembled this information into a Report of Investigation, they will send this report to the requesting government agency. This agency determines whether to grant or deny security clearance to the applicant. To make this decision, the government agency will apply the “clearly consistent with the interests of national security” standard. The Supreme Court has also ruled that, “security clearance determinations should err, if they must, on the side of denials.”
Because the government defaults to denial of security clearance when it is not completely clear whether or not the individual is fit for clearance, many people who need security clearance to complete an essential responsibility may initiate security clearance appeals. The opportunity for appeals exists after denial of security clearance, though the process functions much differently than the criminal or civil legal appeals processes.
The security clearance appeals process is stricter and less forgiving than other legal procedures. The government has much more power during security clearance appeals and standard legal checks and balances may not apply. Once an Administrative Judge makes a decision regarding an applicant’s security clearance, either party (applicant or Department Counsel) may request security clearance appeals to remand or reverse the judgment.
The Appeals Board will typically uphold the Judge’s decisions during a security clearance appeals hearing. This board will evaluate the original hearing to ensure that the judge adhered to Executive Order procedures. If the security clearance appeals board finds the judge’s decisions arbitrary, contrary to the law, or capricious, the board may remand or reverse the judge’s order.
While in theory there is a well-established security clearance appeals process available to those seeking clearance, in practice it is not always easy to appeal an adverse administrative decision. It may be difficult to access the information upon which the denial of security clearance was founded, making it difficult to build a strong security clearance appeals case. The best resource for a person seeking security clearance appeals is a qualified and experienced attorney.
Retaining the professional services of an experienced security clearance attorney early in the security clearance application process, or any time thereafter, is the best way to protect and maximize your interests during this process. Early involvement of a legal professional increases the likelihood you will receive a favorable outcome in security clearance appeals and all related matters. If your security clearance has been denied or revoked and you would like to learn more about security clearance appeals, please contact us to speak with a qualified and experienced attorney.