Why You Need Counsel If Your Clearance Is Revoked

Federal-Circuit-courtroomEvery year countless federal employees, members of the military, and federal contractors have their careers placed in jeopardy by having their security clearance or access to SCI suspended or revoked. Many individuals decide to respond to or appeal the recommendation/decision on their own. Many of these same individuals assume that, as an administrative proceeding, a security adjudication is somehow “less formal” and, thus, can be handled without an attorney. The reality is quite different: official documents recommend an attorney, and the loss of a clearance will certainly be far costlier when a career comes to an abrupt halt.

While no one can guarantee a favorable outcome, as each case is different (because facts matter), scoping the response to address the government’s specific concerns in light of applicable laws, rules, and regulations means the difference between winning or losing; or having a fighting chance and outright losing.

Not seeking counsel is dangerous for a number of reasons.

First and foremost, the decision is not judicially reviewable. This is because of precedent set by the Supreme Court of the United States. In other words, the ultimate decision cannot be taken before a federal court. There is no “suing.”

Second, and this is particularly true with Department of Defense clearances before Administrative Judges: if you lost before the Administrative Judge, the only way to win on appeal is to prove that the Administrative Judge erred in either fact or law. No new evidence is permitted before the Defense Office of Hearings and Appeals Board. If it wasn’t addressed at the lower level, there is nothing that can be practically done. Many prospective clients have contacted the firm at that stage. Unless there is a glaring error, we can’t take the case in good conscience.

Finally, this is a legal proceeding. In some situations, the Department or Agency arguing for the revocation will be represented by an attorney who is prepared to argue against you retaining your security clearance. As such, the written response to the Statement of Reasons or Letter of Intent must bust be on point and sound.

The possible loss of a security clearance is a serious matter. When in doubt, seek counsel.

This article was prepared by Thomas Toman, National Security Investigations Intern.

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