Security Clearance Appeals Board Process
What are the Options After a Denied or Revoked Security Clearance?
If you are dealing with the security clearance process after a denial or revocation following a hearing in front of an administrative judge for the Department of Defense or Department of Energy, you may have the option to file a further appeal.
The Department of Defense has a Personnel Security Appeals Board (PSAB) that is used after the hearing in front of an administrative judge. Not everyone who appears in front of the DOHA administrative judge gets to file an appeal, however.
The Department of Energy has a similar system with an administrative judge hearing the initial security clearance denial or revocation case and a 3-member Appeal Panel hearing any appeal filed after the administrative judge’s decision is rendered.
Intelligence Community agencies have what is often referred to as second-level review where the initial decision by a security officer or panel is reviewed.
In almost all cases, an appeal of the decision to deny or revoke security clearance is done only in writing with no ability to present additional evidence or supporting materials, unless exceptional circumstances apply. Deadlines are often very short—sometimes as little as 20 days—so immediate action is critical. Common grounds for denials being upheld include unresolved financial issues, use of illegal drugs, criminal conduct, foreign influence, and personal conduct concerns.
Success rates for appeals after a hearing are very low compared to earlier in the process, so it is important to make the best record possible at the hearing stage and vigorously defend your rights before the hearing decision is reached. Hiring an experienced security clearance appeals board attorney can help improve those odds.
DOHA Personnel Security Appeals Board (PSAB)
The Defense Office of Hearings and Appeals, known as DOHA, conducts administrative hearings for Department of Defense security clearances and oversees hearings and appeals DOHA matters through both judge-level and appellate review.
If eligible, you will be advised with the unfavorable decision of your appeal rights. A Notice of Appeal must be filed within 15 calendar days of the judge’s decision. This is not the same as the later written appeal or merits briefing. This is not only a short deadline, but also does not give the individual the benefit of extra time if it takes additional time for the decision to be received. This is not a substantive appeal, but merely preserving the right to conduct a briefing on the appellate issues. The security clearance appeals process follows a strict timeline, typically starting with a written response and potentially moving to a formal hearing.
The DOHA appeal board will contact you with further directions regarding the appellate process.
The PSAB’s final decision is final. Reapplication may be made after one year from the final date of revocation.
If you receive an unfavorable decision, you should immediately calendar the dates and call an experienced security clearance lawyer to discuss your options.
Department of Energy Appeals (Appeal Panel)
The Department of Energy Office of Hearings and Appeals conducts administrative hearings for Department of Energy security clearance decisions involving federal employees and DOE contractors. Because these are federal government matters, choosing counsel should turn on federal-level and agency-specific experience rather than location alone. Appeals are governed by 10 CFR 710.28. A security clearance attorney should also understand the adjudicative guidelines and executive order framework that control these cases, including SEAD 4 standards used to assess eligibility.
An appeal of an OHA administrative judge’s decision must be filed within 30 calendar days of receipt of the unfavorable decision. This is a more forgiving timeline than DOHA appeal requirements. Lawyers with prior experience from a government background or defense counterintelligence environment may also have a clearer view of how these cases are evaluated.
An appeal proceeds to a three-member Appeal Panel, who’s decision is final. Reapplication may be made after one year from the final date of revocation.
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The Role of Your Appeals Attorney and Post-Hearing Outcomes
Consulting with an experienced law firm gives you legal representation in security clearance matters where strict deadlines and detailed evidentiary standards can directly affect your chances on appeal.
While the law protects your right to appeal, the appeals boards will grant great deference to an administrative judge’s findings of fact, credibility determinations, and ultimate determination that it is not consistent with national security to grant a security clearance. Earlier stages may include a hearing before an administrative judge where legal counsel can identify witnesses, present evidence, request a hearing, present witnesses, and cross-examine government witnesses, where in a appeal, those rights are no longer protected.
If the government is appealing a favorable ruling for you, you should also immediately contact an attorney to discuss the government’s filings and how best to respond. The government is far more frequently successful on appeal than individuals, so having the right lawyer on your side if the government appeals is critical. Be prepared to work closely with your attorney throughout the process.
Practical Steps and Immediate Actions for Your Appeal
If you have received an unfavorable ruling after an administrative hearing or the government is appealing a favorable ruling, you should do several things immediately:
- Carefully review the written decision, focusing on the basis for decision and the adjudicative guidelines that were found for or against your case.
- Calendar the relevant dates to file a notice of appeal or response, keeping in mind that filing windows are strict and can vary across other agencies.
- Make a note of who must receive the notice of appeal or response.
- Call an experienced attorney to see how best to protect your rights and coordinate representation for military members, defense contracting professional, and civilian employees.
Whether you are a military member, a government contractor, or civilian government employee, contact our firm today for a free confidential consultation to discuss the filings and deadlines to respond, as well as a roadmap for the response. We also assist with security clearance matters involving foreign contacts, substance abuse, and other recurring issues. Brian@LSAttorneys.com 847-775-7701.
