Is it worth the expense to pay for professional assistance when facing security clearance denial or revocation?
Probability of Success
I reviewed 500 cases decided by Administrative Judges (AJs) at the Defense Office of Hearings and Appeals (DOHA) between March and October 2012. These cases showed that at the final stage of clearance adjudication, applicants with attorneys or personal representatives were granted clearances 60% more often than those who represented themselves (pro se). Yet only 20% of applicants chose to be represented by an attorney. Of the 400 pro se applicants only 32% were granted security clearances. Of the 98 applicants who were represented by attorneys 51% received security clearances. There were 2 applicants who were assisted by “personal representatives,” and both were granted security clearances.
It’s possible that applicants who seek the assistance of an attorney are predominately those with the poorest likelihood of success. Many applicants who pay an attorney to write a response to a “Letter of Intent” (LOI) to deny clearance are granted a clearance based solely on the written answer to the “Statement of Reasons” (SOR) contained in the LOI. This eliminates the need for a hearing and reduces the processing time by a month or two. Because of these and many other factors, using the services of a qualified attorney may improve your probability of success by much more than 60%. To understand this better, you need to be familiar with the rebuttal and appeal process.
If you’ve already received a “Written Interrogatory” or an SOR, it means that your case is among the most problematic 5% of all cases and you definitely need to give serious consideration to hiring an attorney. If you know before you apply for a clearance that you have moderate to major security or suitability issues to overcome, you may want to seek professional security clearance help at the application stage of the clearance process. It could shave weeks or months off your processing time, as well as improve your chance of receiving an interim and final clearance.
Cost Versus Consequences
The cost of an attorney who prepares your SOR response and who represents you at a hearing should range from about $7,000 to $15,000 (plus expenses), depending on the complexity of your case. Considering the possible long-term negative effects of a clearance denial on your future career, increasing your probability of success by at least 60% makes the cost of professional help worth the money.
If you chose to answer the SOR by yourself, always request a hearing. If your written SOR response is unsuccessful, you’ll then have chance to present your case in person before an AJ. Statistically, applicants who request a hearing are 3 times more successful than those who request a decision based only on the written record. Don’t expect to save money by answering the SOR yourself and then getting an attorney to represent you at the hearing. Often much of the work an attorney does to prepare your case for a hearing is the same work he or she would have done to answer the SOR for you. Plus the attorney will have to spend additional time trying to fix mistakes you made in your SOR response—mistakes that can be used against you at the hearing.
You may think that if you represent yourself at a DOHA hearing and lose, you can then get an attorney to appeal the clearance denial for you and possibly get the decision reversed. Don’t count on it. Very few appeals are successful. Out of 26 appeals to the DOHA Personnel Security Appeal Board (PSAB) handled by attorneys from March to October 2012, only 2 appeals were successful. During the same period, 40 applicants appealed their own cases, and none were successful. This is because you are not allowed to present any new evidence in your appeal to the DOHA PSAB. Your appeal of the AJ’s decision must be based on procedural or factual errors.
You may also think that if you are denied a clearance, you can reapply for a clearance a year after the denial. This is partially true. One year after being denied a clearance you can reapply, but you have to get the approval of the Director of DOHA before your clearance application will be processed. To get this approval you’ll have to submit persuasive evidence that your situation has improved substantially since your clearance was denied. More importantly, you will have to find an employer willing to sponsor you for the clearance. Most prospective employers will be very reluctant to sponsor someone who previously had a clearance denied or revoked.
For defense contractor personnel the clearance hearing is an adversarial process. Your adversary will be a DOHA “Department Counsel” (DC), an experienced attorney who specializes in representing the Government at clearance hearings. The standard of evidence required to deny a clearance is much lower than the standard of evidence in a criminal prosecution and slightly lower than the standard in a civil lawsuit. The DC only needs to present “substantial evidence” to support the allegations in the SOR. Once substantial evidence is presented, the burden falls to the applicant to present evidence that refutes or mitigates the evidence presented by the DC. Although the Federal Rules of Evidence are only supposed to be used as a guide and AJs have broad discretion to rule on the admissibility of evidence; AJs tend to adhere to the rules in most situations. Knowledge of the rules and procedures could be critical to your success at the hearing, as well as any subsequent appeal.
Before Selecting an Attorney
If you expect it will take more than a few days to select an attorney, submit a Privacy Act request for a copy of your security clearance investigation and any other Government documents you may need.
Get organized quickly. Review the Adjudicative Guidelines that pertain to the issues listed in your SOR and determine which mitigating conditions apply to you and how they apply. Don’t forget the 9 “General Criteria” listed at paragraph 2 of the Adjudicative Guidelines. Prepare a draft response to the SOR. Gather documents that support your SOR response. Identify people who can corroborate your statements or provide meaningful testimony regarding positive Whole-Person factors on your behalf.
Selecting an Attorney
There are very few attorneys experienced in security clearance cases, but you don’t have to find an attorney who has an office near you. Your communication with an attorney can be handled largely by telephone and email. There are experienced attorneys located in other areas, but most are in Virginia, Maryland, and the District of Columbia, because that’s where many of the hearings are held. Hearings can be held at other locations and can also be conducted by video tele-conference.
Create a short list of attorneys and check out their websites. Do they show national security clearance as an area of practice? Have they been involved with the American Bar Association’s Standing Committee on Law and National Security? Have they taught classes on security clearance law to other attorneys? Have they published articles on security clearance issues? These aren’t necessary qualifications, but they’re definitely pluses. You wouldn’t hire a tax attorney to defend you in a serious criminal matter; why would you hire someone without any security clearance experience to represent you at a DOHA hearing. During your initial consultation, you should ask:
- What are my chances of being granted a security clearance?
- How many security clearance cases involving an SOR have you had in the last 12 months?
- How many cases resulted in the successful rebuttal of an SOR without going to a hearing?
- How many cases resulted in the granting of a clearance after a hearing?
- Which federal agencies have you dealt with on security clearance cases?
- Who in your office will prepare my case (attorney or paralegal)?
- About how much will your services cost?
- How are your cost and fees calculated?
- How and when will I be required to pay?
- What do you need from me to get started?
- What can I do to help keep the costs and fees down?
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