For individuals who must go through the security clearance adjudication process, for any organization or Agency, it can be confusing.  Each person attempting to obtain a security clearance must have a sponsor, whether a government contractor or Agency, but if security concerns arise, the adjudication process can be different depending on what Agency controls that clearance. Each process starts with the completion of a Standard Form 86 (SF-86) and an investigation, but if concerns are discovered, the process for the Department of Defense and the Department of Energy are decidedly different.

Department of Defense

The adjudication process for DOD is governed by DOD Directive 5220.6 or DODM 5200.02 depending if you work for a government contractor or are a federal employee. These regulations require that the Agency, in this case it would be through the Defense Counterintelligence and Security Agency, provide a written statement of the reasons why the security clearance may be denied or revoked.  This is commonly referred to as a Statement of Reasons (SOR).   The SOR instructions provides for anywhere from 20-60 days to respond in writing to the allegations and then the individual would have the option of requesting a hearing in front of an Administrative Judge with the Defense Office of Hearings and Appeals (DOHA) or a Personal Appearance (PA) if the individual is a federal employee or military member.  After attending a hearing or personal appearance, which provides opportunities for live testimony and witnesses, the Administrative Judge will issue a written decision or recommendation to either grant or deny/revoke one’s security clearance. If the clearance is denied or revoked, a wait of 12 months is necessary before one can reapply for a security clearance from the date of the final decision.

Department of Energy

The process for individuals attempting to get a security clearance with the Department of Energy is similar, but different regulations are used and the individuals are not afforded the same specific due process rights.  The adjudication process is governed through 10 C.F.R. 710, which is akin to the Security Executive Agent Directive 4 and incorporates requirements of Executive Orders 10865 and 12968, but the process is a little different.  With the Department of Energy, if there are security concerns that are found, the concerns are disclosed through a document called the Summary of Security Concerns (SOSC), which is similar to a Statement of Reasons. However, once the SOSC is issued, that is where the process begins to change. The Department of Energy does not allow you to submit a comprehensive written response, have it adjudicated and then go to a hearing.  At the outset, you must elect if you would like to attend a hearing in front of an Administrative Judge through the Office of Hearings and Appeals or have a decision made on the written record by Management.  You cannot do both.  Although, you can submit a response to the allegations when requesting a hearing, that will be considered in conjunction with your presentation at hearing.

Key Differences

There are two key differences between the adjudication processes with the Department of Defense and Department of Energy.  First, the type or level of clearances are different.  With the Department of Defense you can commonly apply for Secret, Top Secret, Top Secret SCI (Sensitive Compartmented Information).  However, with the Department of Energy, the clearance levels are similar, but labeled different, which include a “Q” clearance (equivalent to a DOD Top Secret clearance) and an “L” clearance (equivalent to a DOD Secret clearance).  However, the Department of Energy also commonly deals with highly classified information and requires Restricted Data access, which is a special category of classified information with the Department of Energy that is more sensitive than normal national security information.  The second key difference is the DOD offers the ability to submit a comprehensive response to the SOR and if the written response does not fully mitigate the concerns, one is able to attend a hearing or personal appearance.  The Department of Energy only offers the ability to submit a written response OR attend a hearing, you cannot do both.  This is an important distinction because it can be confusing and if you are familiar with DOD adjudicative process, but not Department of Energy process, and believe you can submit a response and then have a hearing, that is incorrect and could lead to ultimate revocation or denial of your security clearance.

The security clearance adjudication process can be extremely confusing and thus, it is beneficial to seek the assistance of an experienced security clearance attorney to assist you with understanding the complex adjudication process for various different Agencies. If you fail to adhere to the proper adjudication process, your security clearance could be denied or revoked, causing you significant delay in your career advancements.

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 (888)-529-4543.