You Can Appeal a Clearance Denial – But You Might Get Fired While You Wait

A recent Defense Office of Hearing and Appeals case that involved financial, criminal conduct, and personal conduct issues resulted in the DOD CAF declining to grant the applicant a clearance. The applicant appealed the decision and had two hearings and was scheduled for a third prior to being terminated by his employer. When an applicant is terminated before background investigation is complete there is normally no requirement by the government to continue to process and adjudicate the case pursuant to DOD Directives which state “DOHA’s authority to adjudicate an Industrial Security Clearance application is predicated upon the applicant’s need for access to classified information. Should that need be terminated, DOHA is divested of jurisdiction, and all actions pursuant to the Directive cease.

The applicant’s argument to the appeals board was that they did not have jurisdiction to decide on the case since he no longer had a need for a clearance by the time the final decision was made. However, in this case, the hearing appeal process had already begun and even though the applicant was terminated from employment, it fell under one of the exceptions that allow the board to continue the process. The board ruled that because the hearing process clearly started while the applicant was employed and had a need for a clearance, the board had jurisdiction to complete the process and render a decision. In the end, the initial adverse decision was upheld. For those that get denied a clearance a one year waiting period is required before being eligible to apply again.