Personal Appearance Security Clearance Denial Appeal Lawyer

Individuals employed or seeking employment in either a military or civilian capacity with the Department of Defense often must secure a Personnel Security Clearance, known as a PSC.  The Defense Security Service, formerly known as the Defense Investigative Service, conducts the investigation of applicants for a PSC. The DoD Consolidated Adjudication Facility, known as CAF, issues a determination for whether or not an applicant receives a Personnel Security Clearance.

The Air Force, Army and Navy all formerly maintained their own CAF units, but have now been centralized into one Department wide CAF unit. Furthermore, the DoD’s Washington Headquarters Service maintained a separate CAF unit for all civilian employees of the Department of Defense, but is now part of the consolidated CAF Unit. Applicants employed by agencies other than the Department of Defense, including the Central Intelligence Agency (CIA), National Security Agency (NSA) and other federal entities are also processed for Personnel Security Clearances through the Department of Defense. However, these intelligence agencies retained their own CAF Units. Most applicants are granted Personnel Security Clearances. However, each year, some applicants are denied a Personnel Security Clearance.

President’s Executive Order 12968 and DoD Directive 5200.2-R governs the appeals process for a denial of a Personnel Security Clearance. Applicants denied a Personnel Security Clearance by the Consolidated Adjudication Facility will receive a Statement of Reasons, or SOR. The Statement of Reasons will specifically indicate why DoD denied the Personnel Security Clearance. The Department of Defense will also issue a Letter of Intent, or LOI, with the SOR to supplement explanations for the reasons for denial of a Personnel Security Clearance. The applicant has 15 days from the date of the SOR or LOI to file a written Appeal to CAF. CAF may grant the Personnel Security Clearance on the basis of the LOI Appeal, or issue a Letter of Denial, or LOD. The applicant has 10 days from the date on the Letter of Denial to file a Notice of Intent to Appeal, or NOIA, with CAF. The applicant can decide whether to file a written appeal to the denial of a Personnel Security Clearance or request an in person Personal Appearance Hearing.

If you are an applicant denied an Personnel Security Clearance, or PSC, contact an Personnel Security Clearance denial appeals attorney for representation.

Appeals of denials of Personnel 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 directly to the Personnel Security Appeals Board, or PSAB. Written argument directly to PSAB is due within 30 days after filing the Notice of Intent to Appeal. An in person Hearing, called a Personal Appearance Hearing, will be held before an Administrative Law Judge at a Defense Office of Hearings & Appeals facility, at a location within 150 miles of the applicants residence, or ‘s at the applicant’s place of employment. DOHA Hearing facilities are located in Arlington, Virginia (Washington, D.C.); Boston, Massachusetts; Chicago, Illinois; Los Angeles, California; and Seattle, Washington. In some instances, Personal Appearance Hearings are held via videoconference.

At the Personal Appearance DOHA Hearing, the Department may be represented by the Department’s Counsel. Department Counsel is not required to appear because the Administrative Law Judge receives the complete Personnel Security Investigation file on the applicant. The Administrative Law Judge will review the PSI and may hear testimony from Department witnesses forming the basis for the Personnel Security Clearance denial. The applicant can bring witnesses to testify on his or her behalf and admit documents into evidence. The applicant will also be required to testify. Personal Appearance 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 Personal Appearance.

Personal Appearance DOHA Administrative Law Judges submit a written recommended decision that states the factual and legal reasons for the decision. The Administrative Law Judge’s written decision is not final. Final determination for whether a government employee applicant receives a Personnel Security Clearance is made by the Personnel Security Appeals Board, or PSAB. The PSAB consists of three members who vote whether to accept or reject the Administrative Law Judge’s recommended decision to grant or deny the Personnel Security Clearance. The decision of the PSAB is final.

If the final decision is to deny the applicant a Personnel Security Clearance from the DoD Personnel Security Program, the applicant can reapply. The applicant can reapply for a PSC one year from the final date of the denial decision, or the denial of the appeal. If the applicant is later granted a Personnel 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 a Personnel Security Clearance.

If you need to file an Appeal of a Department of Defense Personnel Security Clearance denial, contact a DOHA Personal Appearance Hearing Lawyer for representation.

DOHA Personal Appearance 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 Personnel Security Clearance. Rather, the job of these lawyers at a DOHA Personal Appearance Hearing is to prevent you from obtaining a Personnel Security Clearance.

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

Government employee applicants can only apply for a Personnel Security Clearance if they are employed, or receive a conditional offer of employment which the applicant has accepted, from the Department of Defense, or another federal agency. Both military and civilian applicants go through the Personnel Security Clearance program. Applicants for Personnel 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 Personnel Security Clearance requested.

There are a number of reasons which can lead to an adverse decision denying an Personnel 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 Personnel Security Clearance must have unquestioned allegiance to the United States. If an applicant for an Personnel Security Clearance advocates or supports any act of espionage, terrorism or treason against the United States, the applicant will be denied an Personnel 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 Personnel 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 Personnel 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 Personnel 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 Personnel 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 Personnel 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 a Personnel 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 Personnel 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 Personnel 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 Personnel 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 Personnel 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 Personnel 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 Personnel 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 Personnel 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 Personnel Security Clearance. Convictions that can result in a denial of an Personnel 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 Personnel 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 Personnel 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 Personnel 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 Personnel Security Clearance who is employed or associates with certain outside employment or activities may present a risk to the Personnel 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 Personnel 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 Personnel Security Clearance.

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

The Department of Defense Consolidated Adjudication Facility, or CAF, issues Personnel Security Clearance revocations. Revocation of a Personnel Security Clearance can occur for several reasons:

Criminal Conviction: A criminal conviction can result in the revocation of a government employee’s Personnel 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 government employee’s Personnel 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 government employee’s Personnel Security Clearance.

The Personnel Security Clearance Revocation Appeal process is similar to the Appeal process for a Personnel Security Clearance denial. The Department of Defense CAF will issue a Statement or Reasons, or SOR, and Letter of Intent, or LOI, for the revocation. Thas 10 days from the date on the Letter of Denial to file a Notice of Intent to Appeal, or NOIA, with CAF. The applicant can decide whether to file a written appeal to the denial of a Personnel Security Clearance or request an in person Personal Appearance Hearing. If a Personal Appearance Hearing is requested, the Defense Office of Hearings & Appeals, or DOHA, assigns an Administrative Law Judge to hear the revocation case. In some cases, the DoD CAF assigns an Adjudicator to review written Appeals, which can then be appealed to an Administrative Law Judge at DOHA. At the Personal Appearance Hearing, the Department of Defense will present witness testimony and admit documentary evidence. The government employee who holds the Personnel 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 recommended decision. Similar to the denial process, the Personnel Security Appeals Board, or PSAB, will render a final decision on whether the government employee receives or is denied a Personnel Security Clearance. An employee whose Personnel Security Clearance is revoked can file a Reapplication for the Personnel Security Clearance one year after the revocation becomes effective. A government employee who receives a Personnel 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 a Personnel Security Clearance Revocation, contact an Personnel Security Clearance Revocation Attorney for representation.