If you hold a security clearance as a military member or DoD federal employee, and elected a personal appearance as part of your Statement of Reasons (SOR) response, a recent DoD legal decision may directly affect your case. The Defense Counterintelligence and Security Agency (DCSA) has lost its authority to conduct personal appearance hearings, and prior decisions issued through that process have been declared void.
Here’s what happened, and what it means if you’re navigating the clearance process.
The Core Legal Issue
Executive Order 12968 § 5.2(a)(7) guarantees applicants the right to appear personally and present evidence before an adjudicator who is separate from the entity that investigated them. The idea is simple: you shouldn’t have your case reviewed by the same organization that built the case against you.
On May 11, a legal opinion from the Department of Justice’s Office of Legal Counsel concluded that DCSA is an “investigating entity” under that executive order. Because of that, DCSA is legally barred from also serving as the hearing authority that reviews its own clearance decisions.
The opinion went further, finding that the same restriction applies to any DoD intelligence component that conducts supplemental background investigations of its own personnel. In short: if an organization helped build the investigative file, it cannot also decide the appeal.
What Changed as a Result
Following that opinion, the DoD’s General Counsel issued a memorandum that:
- Suspended DCSA’s personal appearance program effective immediately
- Declared void any decision DCSA issued based on its own personal appearance hearings
DCSA has been directed to stop conducting hearings and instead refer all pending and previously decided cases to the Defense Office of Hearings and Appeals (DOHA), which has long served as the Department’s independent hearing forum for contractor clearance cases.
What Happens to Cases Already Decided?
This isn’t just a change going forward. It reaches back to cases DCSA has already resolved. DOHA will now review those cases differently depending on the outcome:
- If the applicant won his/her case: DOHA will assess whether legal or procedural errors may have compromised national security. If there’s a reasonable likelihood that it occurred, DOHA can convene a new hearing.
- If the applicant lost his/her case: DOHA will review whether s/he was denied due process. If so, DOHA will determine an appropriate remedy and notify the individual.
This means that if you previously received an adverse clearance decision through DCSA’s personal appearance process, you may be entitled to a new look at your case.
Why This Matters Beyond DCSA
The underlying legal principle is broader than DCSA. Any Department component that conducts investigations, including supplemental investigations by intelligence organizations, cannot also serve as the hearing authority. That principle may prompt other components to reexamine their own review processes.
What This Means for Clearance Holders and Applicants
If you have a pending case before DCSA, have received an adverse decision through its personal appearance process, or have questions about how this affects your standing, now is the time to speak with an attorney experienced in security clearance law. Understanding whether your case qualifies for further review and how to present it to DOHA , can make a meaningful difference in the outcome.
Justyn Ann Baxley is a Partner with JAG Defense. Her practice primarily focuses on security clearance law and administrative law. As a security clearance lawyer, Ms. Baxley has represented hundreds of individuals in security clearance adjudications across virtually every federal agency, to include the Department of Defense, the Department of Homeland Security, the Department of Energy, the National Security Agency, NASA, and others.
