As promised last week, I jumped into the last 30 defense hearing security clearance and appeal decisions that have been appealed from recent review hearings. The results were somewhat predictable, but there were a few surprises and some humorous anecdotes.
More than half based on financial considerations
Of the cases, 18 involved financial considerations. Of these cases, three involved student loans and three were based on overdue tax debts. A financial argument also included drug use as another reason for refusal. Four cases involved substance abuse or alcoholism, three involved criminal or personal conduct, and two involved foreign influence. At least three of the cases investigated also referred to lies during the investigation. Finally, there were three cases which I did not mention on the merits because they were referred for judgment due to a procedural error on the part of the government (incorrect notification, failure to include evidence, urgency untimely). These numbers are consistent with the categories of arbitration hearings I broke down last week.
An interesting point is that the government appealed three decisions, and all three were successful, resulting in a denial of permission. Two concerned criminal conduct and one was financial considerations. In these cases, the court of appeal noted that the judge “had ruled in contradiction with the evidence”
Several of the refusals were due to the appellant’s attempt to present new evidence on appeal, which was not possible. Most of the rest were found to be “without miscarriage of justice” and found at the lower hearing level.
Tell me this is a joke
There were some “I can’t believe what I’m reading” moments that were really entertaining as I struggled to make decisions. A financial case was appealed on the sole basis of “I really need a job”. Another person had filed five bankruptcies in 28 years and had seen two of them dismissed for non-compliance with the court. Two callers attempted to use the arguments for the COVID relief measures on their student loans even though their debt was four to five years old with little or no payment during that time. Most of the appeals, however, were based on the judge’s failure to meet the “whole person” standard in his judgment. None of these have been successful. Indeed, apart from the three procedural errors and the recourse of the government, no decision was overturned.
After reviewing the cases over the past two weeks, I think there are lessons to be learned from those challenging the denial of clearance.
1. Don’t expect to win your call. This means that you need to bring all of your mitigation strategies and their evidence to the initial hearing. You cannot present new evidence after the hearing, except in very rare circumstances.
2. Read past cases that are similar to yours to see what might work to register your authorization.
3. Lying about a lie is not a winning game. Tell the truth from the start.
4. Consider hiring a lawyer specializing in security clearance law to at least advise you. They may be able to give you sound advice based on their experiences with a particular judge or subject.