Industrial Security Clearance Denial Appeal Attorney

Appeals of denials of Industrial Security Clearances can be written or in person. It is beneficial to have an in person Hearing, rather than proceed by way of written argument to an Administrative Law Judge, or ALJ. An in person Hearing will be held before an Administrative Law Judge at a Defense Office of Hearings & Appeals facility, or at a location within 150 miles of the applicant. DOHA Hearing facilities are located in Arlington, Virginia (Washington, D.C.); Boston, Massachusetts; Chicago, Illinois; Los Angeles, California; and Seattle, Washington. In some instances, Hearings are held via videoconference.

At the Hearing, the Department is represented by the Department’s Counsel. The Administrative Law Judge will hear testimony from Department witnesses and review Department of Defense documents and exhibits forming the basis for the Industrial Security Clearance denial. The applicant can also bring witnesses to testify on his or her behalf and admit documents into evidence. The applicant will also be required to testify. Hearings can last anywhere from several hours to several days. The DOHA Administrative Law Judge does not make a decision at the conclusion of the Hearing.

DOHA Administrative Law Judges submit a written decision that states the factual and legal reasons for the decision. The United States Supreme Court ruled in Department of Navy v. Egan, that the granting of an Industrial Security Clearance must be clearly consistent with the interests of national security. The Administrative Law Judge’s written decision is final, but can be appealed by either party. The Department of Defense and the applicant can file a Notice of Appeal with the DOHA Appeal Board within 15 days of the date of the Administrative Law Judge’s written decision. The actual Appeal brief of the appealing party must be filed within 45 days of the date of the Administrative Law Judge’s written decision. The non appealing party has 20 days to respond and file an opposing Appeal brief. The Appeal Brief to the DOHA Appeal Board cannot present any new evidence not presented at the initial Hearing before the Defense Office of Hearings & Appeals. The DOHA Appeal Board consists of three Administrative Law Judges. The DOHA Appeal Board can sustain, overturn or remand the decision to grant or deny a DoD Industrial Security Clearance.

If the final decision is to deny the applicant an Industrial Security Clearance from the National Industrial Security Program, or NISP, the applicant can reapply. The applicant can reapply for an ISC one year from the final date of the denial decision, or the denial of the appeal. If the applicant is later granted an Industrial Security Clearance after being denied, the applicant can Petition for Reimbursement due to lost wages and other earnings. The Petition for Reimbursement must be filed with the Department of Defense’s General Counsel within one year of the applicant receiving an Industrial Security Clearance.

If you need to file an Appeal of a DoD Industrial Security Clearance denial, contact a DOHA Hearing Lawyer for representation.

DOHA Hearings are formal evidentiary Hearings. While Federal Administrative Law Hearings may have more relaxed rules of evidence, the procedures and regulations are more formal than many other Court settings. The Administrative Law Judge is a neutral finder of fact and decision maker. The ALJ cannot give you legal advice. The ALJ cannot assist you in cross examination of government witnesses, introduction of exhibits or teach you the law.

The Department of Defense is represented by Department Counsel, a legal team that is comprised of attorneys highly trained in Federal Administrative Law and Court litigation. Department Counsel is not present to assist you in obtaining an Industrial Security Clearance. Rather, the job of these lawyers at a DOHA Hearing is to prevent you from obtaining an Industrial Security Clearance.

Thus, it is important for an applicant who has been denied an Industrial Security Clearance to obtain his or her own attorney to represent them at a DOHA Hearing.

Applicants can only apply for an Industrial Security Clearance if they are employed, or receive a conditional offer of employment which the applicant has accepted, from a Government Contractor with a Facility Security Clearance, or FCL. Applicants for Industrial Security Clearances must file a form SF-86, or an Electronic Questionnaire for Investigations Processing, known as EQIP. DOD Defense Security Services Investigators use these detailed questionnaires to begin their investigation of the applicant. Clearance levels are Confidential, Secret, Top Secret and Sensitive Compartmented Information. The level of investigation, while always stringent, corresponds to the level of Industrial Security Clearance requested.

There are a number of reasons which can lead to an adverse decision denying an Industrial Security Clearance by the Department of Defense. These reasons are contained in United States Code of Federal Regulations 32 C.F.R. § 147:

32 C.F.R. § 147.3; Guideline A:  Allegiance to the United States.
Reasons for Concern: Applicants for an Industrial Security Clearance must have unquestioned allegiance to the United States. If an applicant for an Industrial Security Clearance advocates or supports any act of espionage, terrorism or treason against the United States, the applicant will be denied an Industrial Security Clearance. Any act or support to overthrow the United States government or refusing to support the United States Constitution is a cause of concern by the Department of Defense.
Mitigation Evidence: Evidence that can mitigate the reasons for concern about an applicant’s allegiance to the United States are academic interests in such conduct, a lack of intent to advocate or commit such misconduct, or the conduct was strictly for a humanitarian purpose.
32 C.F.R. § 147.4; Guideline B:  Foreign influence.
Reasons for Concern: Applicants for an Industrial Security Clearance must not be subject to the interests of any foreign influence. Individuals connected to a foreign country through family members, friends, or roommates may be denied an Industrial Security Clearance. This includes immediate family members who are citizens of another country. Applicants can also be denied for substantial financial interest in foreign nations. These issued are a cause of concern for the DoD.
Mitigation Evidence: Evidence that can mitigate the reasons for concern about an applicant’s Foreign Influence are infrequent contacts with foreign nationals, a determination that immediate family members who are citizens of a foreign country pose no threat and full disclosure of any interest in a foreign nation.
32 C.F.R. § 147.5; Guideline C:  Foreign Preference.
Reasons for Concern: Applicants for an Industrial Security Clearance must not exercise a preference for a foreign nation over the United States. Foreign Preference may include political, economic, social or cultural reasons. The Department of Defense is concerned with Applicants sharing information with foreign nations for which they express a preference over the United States. Dual citizens, or individuals who have taken up arms for a foreign government, or applicants who have used a the laws of a foreign country to benefit themselves or another party financially are a cause of great concern for an Industrial Security Clearance.
Mitigation Evidence: Evidence that can mitigate the reasons for concern about an applicant’s Foreign Preference are dual citizenship was conferred without an affirmative act, the applicant later became a naturalized citizen of the United States and the applicant does not maintain significant contacts with foreign nationals.
32 C.F.R. § 147.6; Guideline D:  Sexual Behavior.
Reasons for Concern: Applicants for an Industrial Security Clearance must not engage in Sexual Behavior that reflects a lack of discretion or judgment, as it may imperil the secrecy of classified activity. Furthermore, the DoD remains concerned with Sexual Behavior that may subject an individual to blackmail, coercion, duress or exploitation. In other words, clandestine extramarital affairs are a basis to deny an Industrial Security Clearance.
Mitigation Evidence: Evidence that can mitigate the reasons for concern about an applicant’s Sexual Behavior are that the applicant has ceased the behavior and there is no evidence of instability. Furthermore, in the case of a clandestine extramarital affair, if the conduct has been made public, then there is no basis for the notion that blackmail, coercion, duress or exploitation will occur.
32 C.F.R. § 147.7; Guideline E:  Personal Conduct.
Reasons for Concern:  Applicants for an Industrial Security Clearance must not engage in Personal Misconduct. Examples of violations of Personal Conduct include refusal to cooperate with the investigative process, providing dishonest and false information on the SF-86 or EQIP and concealment of material information. The DoD remains concerned that individuals with Personal Conduct issues can be subject to blackmail, duress and persuasion.
Mitigation Evidence: Evidence that can mitigate the reasons for DoD’s concern about an applicant’s Personal Conduct are prompt efforts  to remedy the dishonesty and falsehood, a demonstration of sufficient rehabilitation and the acts or omissions were unintentional.
32 C.F.R. § 147.8; Guideline F:  Financial Considerations.
Reasons for Concern: Applicants for Industrial Security Clearance must account for financial wealth to insure that the wealth was legally obtained. DoD does not want to provide Security Clearances to individuals who obtain funds illegally. Additionally, applicants must also show that they are financially responsible and are not overextended with credit and debt. DoD remains concerned that individuals experiencing financial distress are likely to engage in criminal behavior to remedy their financial problems. Furthermore, applicants with gambling addictions are at risk for compromise.
Mitigation Evidence: Evidence that can mitigate the reasons for concern about an applicant’s substantial financial status are proof that money came from a legal source and payment of income taxes. Circumstances that can mitigate the reasons for concern about an applicant’s financial issues are debt repayment and acts beyond the applicant’s control such as economic recession.
32 C.F.R. § 147.9; Guideline G:  Alcohol Consumption.
Reasons for Concern: Applicants for Industrial Security Clearances must refrying from engaging in excessive Alcohol Consumption. Excessive Alcohol Consumption may result in questionable judgment that could result in behavior that causes a Contractor to reveal classified information. Any diagnosis of Alcoholism or Binging can result in a denial of an Industrial Security Clearance.
Mitigation Evidence: Evidence that can mitigate the reasons for concern about an applicant’s Alcohol Consumption are evidence of alcohol rehabilitation through self help or treatment and a showing that there is no pattern of Alcohol Abuse. Additionally, the Department may require a Signed Statement of Intent With Automatic Revocation of Clearance if Alcohol Consumption occurs.
32 C.F.R. § 147.10; Guideline H: Drug Involvement.
Reasons for Concern: Applicants for Industrial Security Clearances must remain drug and narcotic free. DoD is concerned that individuals who engage in drug activity will result in behavior that causes a Contractor to reveal classified information. Prior history of Drug Use will be reviewed on a case by case basis. The Department of Defense considers marijuana use a potential Industrial Security Clearance disqualification, similar to use of other narcotics such as cocaine, heroin and prescription pills.
Mitigation Evidence: Evidence that can mitigate the reasons for concern about an applicant’s Drug Involvement are evidence of drug and narcotic rehabilitation through self help or treatment and a showing that there is no pattern of Drug Abuse. Additionally, the Department may require a Signed Statement of Intent With Automatic Revocation of Clearance if Drug Involvement occurs.
32 C.F.R. § 147.11; Guideline I: Emotional, Mental and Personality Disorders.
Reasons for Concern: The Department of Defense is concerned that an applicant with an Emotional, Mental or Personality Disorder can result in a breach of confidentiality. If an individual experiences an emotional or mental illness, the chance that secrets can be compromised is significant. Sporadic past mental health treatment may not sufficiently convince the Department to issue an Industrial Security Clearance to an applicant. The Department may require the applicant undergo an independent mental or psychological evaluation.
Mitigation Evidence: Evidence that can mitigate the DOD’s reasons for concern about an applicant’s Emotional, Mental and Personality Disorders are significant past mental health treatment that shows no risk of reoccurrence and substantial evidence of positive moral character. Furthermore, agreeing to an evaluation by a Department ordered Psychologist or Psychiatrist will help to mitigate the DOD’s cause for concern.
32 C.F.R. § 147.12; Guideline J: Criminal Conduct.
Reasons for Concern: The Department of Defense is concerned that an applicant with a pattern of criminal history or even one single criminal conviction suggests an inability to manage an Industrial Security Clearance. Convictions that can result in a denial of an Industrial Security Clearance include Domestic Violence, Driving Under the Influence of Alcohol (DUI), Possession of a Controlled Substance (Narcotics) and White Collar Crimes.
Mitigation Evidence: Evidence that can mitigate reasons for concern about an Industrial Security Clearance applicant’s Criminal Conduct and/or criminal history includes a minimal risk of reoccurrence, a substantial length of time between the criminal conduct and the application for a Security Clearance and substantial rehabilitation.
32 C.F.R. § 147.13; Guideline K: Security Violations.
Reasons for Concern: An Industrial Security Clearance applicant’s noncompliance with Security regulations are considered a breach of responsibility and trust. Security Violations that were intentional or even a result of negligence are grounds for denial of an Industrial Security Clearance.
Mitigation Evidence: Evidence that can mitigate the Department of Defense’s concern about Security Violations are improper and inadequate training at the time of the incident, retraining and a demonstration of understanding of Security regulations.
32 C.F.R. § 147.14; Guideline L: Outside Activities.
Reasons for Concern: An applicant for an Industrial Security Clearance who is employed or associates with certain outside employment or activities may present a risk to the Industrial Security Program. The DoD expresses concern with applicants who are employed by foreign enterprises, associate with certain foreign individuals or organizations, or represent any foreign interests. The DoD is concerned that applicant’s with such ties will be compromised, resulting in the release of classified information.
Mitigation Evidence: Evidence that can mitigate the Department of Defense’s concern about Outside Activities are an applicant’s withdrawal from employment or association with foreign interests or a showing that the foreign interests do not pose a threat to national security. Furthermore, a showing that there is no connection between the foreign interests and potential classified information will mitigate any DoD concerns.
32 C.F.R. § 147.15; Guideline M: Misuse of Informational Technology Systems.
Reasons for Concern: Applicants for Industrial Security Clearances that Misuse Information Technology or Technology Systems will be denied a Clearance. The technological edge maintained by the United States remains one of the nation’s greatest achievements. Any conduct that involves the Misuse of Technology is a cause of concern for the Department of Defense because nearly all classified information is managed by Information Technology Systems. The DoD is particularly concerned with hacking, misplacement of information and the unlawful sale of confidential trade secrets.
Mitigation Evidence: Evidence that can mitigate the DoD’s concern about Misuse of Informational Technology Systems includes a good faith effort to correct the situation and a lack of intent to misuse the technology or information. Regardless of whether the misconduct occurred in the distant or recent past, the applicant must present evidence of substantial character rehabilitation in order to obtain an Industrial Security Clearance.

If you are denied an Industrial Security Clearance by the Department of Defense, contact an Industrial Security Clearance denial appeal lawyer for representation.

Pursuant to the National Industrial Security Program Operating Manual, or NISPOM, companies with a Facility Security Clearance, or FCL, must adhere to certain guidelines. All Key Management Personnel, or KMP, for an FCL must have an Industrial Security Clearance. Furthermore, each FCL must have a Facility Security Officer, or FSO. The Facility Security Officer must also obtain an Industrial Security Clearance.

Key Management Personnel is defined as company management, officers and senior leaders who exercise influence over decisions involving classified activity and classified contracts. Key Management Personnel must meet the same criteria required for regular applicants in obtaining an Industrial Security Clearance. Company managers, officers and leaders who are denied an Industrial Security Clearance cannot have any direct or indirect control or influence over classified activity and classified contracts. In some cases, Key Management Personnel Security Clearance denial may result in a denial of a Facility Security Clearance.

A Facility Security Officer, or FSO, is the point of contact between the company holding an FCL and the Department of Defense National Industrial Security Program, or NISP. The Facility Security Officer coordinates the Industrial Security Clearance applications for its employees and potential employees. The FSO is also responsible for implementing a Facility Security Program pursuant to DoD Directive 5220.22-M and the NISPOM. The failure of a Facility Security Officer to adhere to the duties of an FSO can result in the revocation of the Facility Security OFficer’s Industrial Security Clearance and the revocation of the company’s Facility Security Clearance, or FCL.

If you are considered Key Management Personnel, or a KMP, who is denied an Industrial Security Clearance, contact an Industrial Security Clearance denial appeal lawyer to discuss your options. If you are seeking to become a Facility Security Officer, or FSO, and are denied an Industrial Security Clearance, contact a United States Federal Security Clearance denial appeal lawyer for representation.

The Department of Defense Defense Industrial Security Clearance Office, known as DISCO, previously issued an Industrial Security Clearance Revocation. Now, the Consolidated Adjudication Facility, or CAF, issues Industrial Security Clearance revocations. Revocation of an Industrial Security Clearance can occur for several reasons:

Criminal Conviction: A criminal conviction can result in the revocation of an Industrial Security Clearance. Revocations can result from convictions for Domestic Violence, Driving Under the Influence of Alcohol (DUI), Possession of a Controlled Substance (Narcotics) and White Collar Crimes.
Falsification of Industrial Security Clearance Application: If the DoD discovers that information on the SF-86 or EQIP that is later determined to be false, a Contractor’s Industrial Security Clearance can be revoked.
Violations of Guidelines Contained in 32 C.F.R. § 147: Any violation of any guideline mentioned in United States Code of Federal Regulations 32 C.F.R. § 147 can result in the revocation of a Contractor’s Industrial Security Clearance.

The Industrial Security Clearance Revocation Appeal process is similar to the Appeal process for an Industrial Security Clearance denial. The Department of Defense will issue a Statement or Reasons, or SOR, for the revocation. The Contractor has 20 days to file an Answer. The Defense Office of Hearings & Appeals, or DOHA, assigns an Administrative Law Judge to hear the revocation case. The Department will present witness testimony and admit documentary evidence. The Contractor who holds the Industrial Security Clearance will also have the opportunity to present documents and witnesses on his or her behalf.

The Administrative Law Judge will take the matter under submission and issue a written decision. The written decision can be appealed to the DOHA Appeal Board with the procedure described above. A Contractor whose Industrial Security Clearance is revoked can file a Reapplication for the Security Clearance one year after the revocation becomes effective. A Contractor who receives an Industrial Security Clearance after Reapplication can file a Petition for Reimbursement from the Department of Defense for lost wages for the time period that the revocation was effective.

If you are facing an Industrial Security Clearance Revocation, contact an Industrial Security Clearance Revocation Attorney for representation.