It is a common question that is asked by many security clearance holders: “Should I attend a security clearance hearing or request a decision on the written record?”

First, it is necessary to note that many government agencies allow both a written response to be submitted and subsequently an individual to attend a hearing should that written response not be enough to mitigate the government’s security concerns. There are a few exceptions to this however, specifically the Department of Energy. However, for the majority of government agencies, an individual is able to do both options, but should you?

The short answer is yes (most of the time)! The regulations for security clearances for the majority of the government agencies allow for both a written response and a hearing or personal appearance, and therefore one is provided with multiple opportunities to mitigate the government’s concerns. Failure to utilize every opportunity available to obtain or maintain a security clearance will likely hinder one’s ability to receive a favorable outcome.

Typically, after a Statement of Reasons (SOR) is issued, an individual seeking a clearance has the ability to submit a written response addressing the government’s concerns, in an effort to show mitigating and get a favorable decision. Unfortunately, sometimes the written response does not fully mitigate the government’s concerns, and thus one is left with the decision to continue with the adjudication process or accept the decision.

While a written response and hearing can occur at various different stages during the clearance adjudication process, one of the most common occurrences where the question of doing a written response or hearing is with the Department of Defense federal employees or military members. The process begins with an SOR and then an opportunity for a written response. Once that written response is submitted, if the decision from the adjudicating authority is unfavorable, individuals are presented with the opportunity to appeal that decision via an in-person appearance (referred to as a personal appearance or hearing in some cases) or via a written appeal directly to the Personnel Security Appeals Board (PSAB). This is where we most commonly see a decision must be made to either submit a written appeal, attend a hearing/personal appearance, or accept the decision.

Advantages and Disadvantages of Hearings/Personal Appearances

With everything in life, there is a careful weighting of advantages and disadvantages, in this case specifically in attending a hearing/personal appearance. The main advantages with a hearing or personal appearance is that you have the ability to get your case in front of a neutral third party administrative judge, with further ability to submit additional evidence, testify (both the individual and others), and to make further arguments of mitigation in an attempt to persuade the administrative judge to issue a favorable decision (or recommendation in some cases). The disadvantages include the appearance of a government attorney who would make arguments against one’s mitigation to prevent them from getting or keeping a security clearance, as well as the likelihood of one having to testify under oath and/or admonishment in front of the Judge. Ultimately, when making the decision to attend a hearing or simply and solely submit a written response, one should weigh all factors to determine the best course of action for their particular case.

The security clearance adjudication process can be extremely complicated and lengthy and thus it is beneficial to seek the assistance of an experienced security clearance attorney to assist you with understanding the complex adjudication process and weigh the adjudication options that are best for a particular situation. If you fail to choose correctly, your security clearance could be denied or revoked, causing you significant setbacks in your career.

Tully Rinckey attorneys understand that issues involving security clearances can be challenging, and they will handle your matter with the attention and tact it deserves. If you have additional questions about security clearances, our team of attorneys is available to assist you today. Please call 8885294543 to schedule a consultation or schedule a consultation online.

Ryan C. Nerney, Esq. is the Managing Partner of the Ladera Ranch office of Tully Rinckey PLLC, where he focuses his practice primarily on national security law, with experience in federal employment and military matters. Ryan represents clients who have security clearance issues against agencies such as the CIA, NSA, DIA, DOD, NRO, and DOE, among others. He has represented numerous clients in security clearance revocation proceedings and has a proven record of saving clients’ jobs, as well as anticipating and resolving potential future issues with their security clearances. Ryan currently serves as Secretary for the National Security Lawyers Association (NSLA) and was awarded the 2022 Security Clearance Lawyer of the Year award by the NSLA. He has also been selected as a 2022, 2023 and 2024 Rising Star from Superlawyers in Southern California. He can be reached at info@tullylegal.com or at 8885294543