THE IMPORTANCE OF REQUESTING A HEARING IN YOUR SECURITY CLEARANCE CASE
Disclaimer: The following articles are provided for information purposes only and are not to be construed as actual legal advice nor take the place of legal counsel.
Though this issue actually comes up rather late in the clearance adjudication process, we have listed it at the beginning of our discussion because its importance cannot be overlooked.
For cases falling under the purview of the Department of Defense, the adjudication of a clearance can be conducted either by a review of the File Of Relevant Material (FORM) by an Administrative Judge or by presenting a case at a hearing/appearance before an Administrative Judge. In all but the rarest of cases we strongly recommend that your case be decided through a hearing/appearance. For all practical purposes a security clearance decision is going to be won or lost at that hearing.
Congressional Testimony before the Senate Armed Services Committee reports that for Department of Hearings and Appeals (DOHA) Industrial Security Clearance Cases (i.e., Defense Contractor employees) Administrative Judges deny clearances in approximately 85% of the cases where no hearing is involved. In cases where a hearing is involved Administrative Judges still deny clearances approximately 60% of the time. At The Law Firm of McCormack and McCormack we have obtained successful results far exceeding those percentages. Either losing party can appeal the Administrative Judge’s decision. For cases where the Administrative Judge has granted a clearance, and the government appeals that decision, on appeal the clearance is denied about 70% of the time. For cases where the Administrative Judge has denied the clearance, and the applicant appeals, on appeal a clearance is granted in fewer than 2% of the cases.
The procedural steps for adjudicating a Government Employee’s clearance are somewhat convoluted, basically progressing as follows: Central Adjudication Facility (CAF) issues a Letter of Intent (LOI); employee responds to LOI; CAF issues Letter of Denial/Revocation (LOD); employee appeals LOD; Administrative Judge issues recommendation; Personnel Security Appeals Board (PSAB) of CAF issues final decision. That same Congressional Testimony, however, disclosed that for Government Employee cases in approximately 80% of the cases the final decision is consistent with the recommendation of the Administrative Judge; and, that the Administrative Judge concurs with the CAF decision to revoke the clearance approximately 60% of the time – with the PSAB agreeing with the Administrative Judge in approximately 90% of those revocation cases.
Thus, the message is clear. The best chance a person has to get or keep a clearance is to request a hearing or appearance and present their case before the Administrative Judge. It is virtually impossible to try and win the case on appeal. Take affirmative action to get or protect your clearance now. The best chance you have to get or keep a clearance will depend on your hearing or appearance.