Dempsey, Roberts & Smith, Ltd.
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Security Clearance Lawyer

Call (702) 388-1216
or E-Mail Kenneth Roberts, Esq.
For A Free Consultation

If you believe that you may have clearance problems, and will need to apply for, or renew a clearance in the future, or have been recently denied a clearance, please call Kenneth M. Roberts, Esq., Lt. Col., USAF (Ret.) at (702) 388-1216 for a confidential consultation.

Appeals of Industrial Security Clearance Cases

  1. Authority of Appeal Board

    (a) The Appeal Board has authority over appeals from decisions issued by Defense Office of Hearings and Appeals Administrative Judges in industrial security clearance cases adjudicated under Executive Order 10865, as implemented by Department of Defense Directive 5220.6 ("Directive"). The Appeal Board does not have authority to handle interlocutory appeals (i.e., appeals challenging actions or rulings that occur before the Administrative Judge issues a decision). The Appeal Board does not have authority over security clearance cases involving members of the U.S. military or civilian employees of the Department of Defense, which are adjudicated under Executive Order 12968, as implemented by Department of Defense Regulation 5200.2-R.

    (b) The appeal process in industrial security clearance cases is governed by the Directive, Additional Procedural Guidance, Items E3.1.28 through E3.1.35. The provisions of this document supplement, but do not supersede, the provisions of the Directive. If there is any conflict between the provisions of this document and the provisions of the Directive, then the provisions of the Directive control.

  2. Communicating with Appeal Board

    (a) Written communications about an appeal should be addressed to the Chairman, Appeal Board, P.O. Box 3656, Arlington, Virginia 22203. Written communications can be submitted to the Appeal Board by fax (703-696-1832), but the party also should send the original (without additional copies) to the Appeal Board by regular mail. Any communication should identify the applicant's full name, the case number, and the current mailing address of the applicant (or personal representative or applicant's counsel, if applicant is represented).

    (b) Parties are advised NOT to send written communications to the Appeal Board by certified or registered mail. Certified or registered mail tends to slow delivery. Any party who uses certified or registered mail assumes the risk of losing important appeal rights if any delay in delivery results in failure to meet an appeal deadline.

    (c) Experience shows that fax submission of documents is generally reliable and significantly less costly than overnight mail delivery. Furthermore, there is no one present to accept overnight delivery that arrives on a Saturday, Sunday, or federal holiday. If a document is submitted by fax, the party should send the original of the document to the Appeal Board by regular mail.

    (d) Attorneys are presumed to be authorized to act on behalf of their clients with respect to communicating with the Appeal Board on any matter pertaining to an appeal.

    (e) The Appeal Board is not bound by any communication or agreement about an appeal matter that a party has with the Hearing Office, the other party, or counsel representing the other party.

  3. Meaning of "days."

    All references to "days" mean calendar days, not business days. If a due date falls on a Saturday, Sunday, or federal holiday, the due date will be considered to fall on the next business day.

  4. Appeal deadlines.

    To meet an appeal deadline, a document must be received by the Appeal Board on or before the due date. An appeal deadline is not satisfied just by sending or postmarking a document on or before the due date. Whenever a party submits a document to the Appeal Board, the party has the obligation and responsibility to take reasonable steps to ensure that the document is received by the Appeal Board on time.

  5. Consequence of failing to meet appeal deadlines.

    Failure to meet an appeal deadline could result in rejection of a late notice of appeal, default of an appeal, denial of a request for extension of time, or rejection of an appeal brief.

  6. Extensions of time.

    Because the timely filing of a notice of appeal is mandatory and jurisdictional, no extensions of time to file a notice of appeal will be granted. Except for filing notices of appeal, any party can request an extension of time to meet an appeal deadline. Any request for an extension of time must be received by the Appeal Board before the deadline passes. Absent unforeseen emergencies or unusual circumstances, last minute requests for an extension of time are strongly discouraged. The party asking for more time must take reasonable steps to inform the other party of the request when it is submitted. The request for additional time must state how much additional time is being requested, and must give specific reasons for why the request is being made. Submitting a request for more time will not automatically result in it being granted. The Chairman, Appeal Board may grant reasonable extensions of time upon a showing of good cause.

  7. Submitting notice of appeal.

    To appeal an Administrative Judge's security clearance decision, a written notice of appeal must be received by the Appeal Board of Defense Office of Hearings and Appeals within 15 days of the date of the Administrative Judge's decision. Failure to meet that 15-day deadline can result in the loss of appeal rights and the Administrative Judge's decision becoming the final decision in this case. To meet the 15-day deadline for submitting a notice of appeal, the appealing party can submit the notice appeal to the Appeal Board by fax. If the notice of appeal is submitted by fax, the original notice of appeal should be sent to the Appeal Board by regular mail.

  8. Contents of notice of appeal.

    The notice of appeal should contain the following:

    (a) applicant's full name;

    (b) applicant's Social Security number;

    (c) the ISCR case number;

    (d) applicant's current mailing address (preferably a home mailing address) if applicant is not represented by a lawyer or a personal representative;

    (e) the mailing address of applicant's lawyer or personal representative, if applicant is represented; and

    (f) a one-sentence statement that the party submitting the notice is appealing the Administrative Judge's decision.

    The notice of appeal should not contain:

    (a) any statements, reasons, or explanations about why the party is submitting the notice of appeal; or

    (b) any arguments about the merits of the Administrative Judge's decision or the case.

  9. Late notice of appeal.

    Timely filing of a notice of appeal is mandatory and jurisdictional. A late notice of appeal cannot be accepted unless there has been a showing of good cause to accept a late filing. The party submitting a late notice of appeal has the burden of showing that there is good cause for accepting it late.

  10. Notice of cross-appeal

    Within 10 days of receiving a notice of appeal, the nonappealing party may submit a notice of cross-appeal. The contents of a notice of cross-appeal are the same as the contents of a notice of appeal.

  11. Late notice of cross-appeal.

    Timely filing of a notice of cross-appeal is mandatory and jurisdictional. A late notice of cross-appeal cannot be accepted unless there has been a showing of good cause to accept a late filing. The party submitting a late notice of cross-appeal has the burden of showing that there is good cause for accepting it late.

  12. Withdrawal of appeal.

    A party can withdraw its appeal if it decides to not continue with the appeal. Withdrawal of an appeal will result in the Administrative Judge's decision becoming the final decision in the case. If the appealing party decides to withdraw the appeal, the appealing party should notify the Appeal Board in writing as soon as possible. The appealing party does not have to explain or justify its decision to withdraw an appeal.

  13. Request or motion for stay pending appeal.

    The Appeal Board does not have authority to stay or suspend an Administrative Judge's decision pending appeal. The Appeal Board does not have authority to stay or suspend actions taken pursuant to Directive, Additional Procedural Guidance, Item E3.1.27 (involving notification of applicant's employer in the event of an adverse decision being issued by an Administrative Judge).

    Read More on Appeals of Industrial Clearance Cases

  14. This information is from the DOHA article APPEALS OF INDUSTRIAL SECURITY CLEARANCE CASES

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