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Requesting Reconsideration After a Security Clearance is Denied

When individuals lose their security clearance or are unsuccessful in obtaining one, the most common question they ask is “When can I reapply for one?”  This question comes up most frequently in the context of receiving a security clearance denial from a federal agency. If denied, in many cases, the individual is barred for a period of one-year from seeking reconsideration of the denial. When seeking reconsideration, it is important to have experienced security clearance counsel.

Reconsideration Procedures

Each federal agency has their own reconsideration process. Some federal agencies don’t have it completely defined. However, reconsideration requests are best explained through Department of Defense (DoD) procedures which describe the process for seeking reconsideration of an adverse security clearance decision for federal contractors. These are set forth in Department of Defense (DoD) Directive 5220.6, Enclosure 3. This Directive covers many of the questions regarding reconsideration. However, some federal agencies such as the Central Intelligence Agency and the National Security Agency follow their own procedures for individuals seeking to regain a previously lost security clearance. Additionally, some federal agencies require a longer waiting period for reconsideration than DoD.

Using a DoD federal contractor as an example, there must be a final denial of the security clearance by Defense Office of Hearings and Appeals (DOHA) before proceeding. Directive 5220.6, Enclosure 3, E3.1.37, specifies that “an applicant whose security clearance has been finally denied or revoked by DOHA is barred from reapplication for 1 year from the date of the initial unfavorable clearance decision.”  Specifically, reconsideration generally can occur a year after the date of (1) the DOHA administrative judge’s final decision denying the individual’s security clearance; or (2) an unfavorable decision from the DOHA Appeal Board on an appeal concerning the DOHA administrative judge’s adverse security clearance decision.

As mentioned above, other federal agencies have their own procedures for reconsideration and they can vary. In general, many agencies that have reconsideration processes use somewhat similar methods for reconsideration.

Deciding When to Seek Reconsideration

Even though an individual is barred for a period of one year from reapplying for a security clearance, it does not necessarily mean that he or she should immediately reapply at the one-year mark.  The individual should reapply only when the original security concerns have been sufficiently mitigated as opposed to the first moment that he or she becomes eligible to seek reconsideration.

For instance, if a federal government contractor lost his or her security clearance due to previous alcohol issues, it would be important to show how his or her alcohol use has been successfully changed (e.g., successful treatment of alcoholism, lack of relapse, medical evidence supporting recovery, etc.). It is not recommended that reconsideration be sought until the individual has fully addressed the original security clearance issues that resulted in the denial. Another example could involve an individual who was denied a security clearance due to major unpaid financial debts. Before reapplication, the individual should have worked towards resolving the debts and improved their financial situation.

Reconsideration is most successful when the individual has put some time and space between the original issues that caused the security clearance denial. An individual should be prepared to provide evidence of overcoming the issues to provide to the federal agency involved. Reconsideration requests often are written submissions of 10-15 pages, with exhibits attached. The key on reconsideration is to provide as much proof that the security concerns from the earlier denial no longer exist or are under control.

Typical Reconsideration Steps at DOHA

Using DoD and DOHA as the example, the reconsideration process generally starts when the individual has waited at least a year to seek another position for which a security clearance is required to access classified information. The typical reconsideration process usually occurs as follows:

1. A year has passed and the federal government contractor seeking the security clearance believes that he or she has mitigated or reduced the original security concerns that led to the denial by DOHA.
2. The federal government contractor then seeks a new employment position for which a security clearance is required and is hired for the position.
3. The federal government contractor completes a new SF-86/e-QIP/eApp package and submits it to the government.
4. The federal government contractor will then receive a notice about 60 days later stating that he or she must provide the Director of DOHA (or designee) with (1) a copy of the original security clearance decision denial; and (2) any evidence the employee wishes to submit that would provide a basis for reconsideration (i.e., any information about additional mitigation that has taken place since the original denial).
5. If the Director of DOHA, in his or her discretion, determines that sufficient changes have occurred since the original denial, he or she can grant reconsideration under Directive 5220.6 Enclosure 3, E.1.39.  But, if the Director of DOHA determines that reconsideration is not warranted, the federal government contractor is barred from reapplying for reconsideration for an additional 1-year period from the date of the decision by the Director Pursuant to Directive 5220.6, Enclosure 3, E3.1.40.
6. If reconsideration is granted by the Director of DOHA or designee, the individual is allowed to continue in the clearance investigation process.

Contact Us

It is important for individuals to obtain legal advice from an attorney who is knowledgeable about security clearance law prior to seeking reconsideration in reference to a security clearance denial. Our law firm advises individuals in the security clearance reconsideration process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.