Security Clearance Law Blog

The Security Clearance Hearing Process at DOHA – What to Expect

By John V. Berry, Esq., www.berrylegal.com

If you are a federal employee or contractor whose security clearance is under review (commonly referred to as the Applicant) and you are in the process of having your case heard before the Defense Office of Hearings and Appeals (DOHA), there are a number of considerations to take into account as you move forward to the hearing.

Before the DOHA, an applicant for a security clearance should be well prepared, in advance, to present their case at the hearing.  Having legal counsel represent you in this forum is highly advised.  Below are some considerations that we take into account when representing federal employees and federal contractors as they approach the hearing stage at DOHA before an administrative judge.  

The process of a DOHA hearing, which can vary between cases, usually proceeds as listed below:

            1.  Prior to the date of the hearing, you need to make sure that you have contact information available to ensure that you have an escort to the hearing room.  You will want to arrive early with your witnesses to ensure that you are on time for the proceedings.

            2.  The Applicant must make sure that they have all of their exhibits submitted to both the administrative judge and the government’s attorney (if there is one) in advance, according to the rules.   These exhibits will be reviewed and then the government will have the opportunity to object or comment on them before they are entered into the record.

            3.  When you enter the DOHA hearing room, typically the applicant for a security clearance sits on the left hand side of the hearing room / table and the government attorney (if there is one) will sit on the right.

            4. The witnesses (other than the applicant for a security clearance) will likely be sequestered (kept out of the room) before they testify.

            5. The witnesses, in turn, will usually testify to the left of the DOHA administrative judge.

            6. Typically, the administrative judge will hear any procedural issues first from both sides before starting the hearing.

            7. The hearing will usually then start with opening statements if a security clearance applicant is represented by an attorney.  The applicant’s attorney will go first because the person seeking the security clearance has the burden of showing that their clearance should be granted or recommended favorably.  The government’s attorney, if one is present, will then have the option to provide their opening statement if they wish to do so.

            8. The first witness called by the security clearance attorney will most likely be the applicant who is the most important of all of the witnesses and will usually take the most time of all of the witnesses in testimony. 

            9. Following an examination by the applicant’s attorney, the government’s attorney and/or the administrative judge will question each witness.  The examination will mostly center around the facts and issues related to the Statement of Reasons (SOR) issued earlier in the case.

            10.  Once the applicant has completed presenting his case (finished with presenting all of their witnesses and exhibits), the government, if it wishes, can introduce their own witness testimony and exhibits to use in arguing against the granting of a security clearance for the applicant. 

            11.  Once the testimony is complete, the parties may be asked to provide their closing arguments in the case.

            12.  Following closing arguments, the record will be closed (unless extended for some reason – i.e. the need to extend the closing date for the submission of additional exhibits that are needed).

            13.  Depending on the status of the person seeking the security clearance at issue, federal employee or federal contractor, the administrative judge will then issue a recommended or final decision.

            14.  The proceedings before the DOHA administrative judge are transcribed by a court reporter and the parties will usually be able to obtain a copy of these when they become available.

Each DOHA hearing before an administrative judge can be unique so individuals are advised to have counsel represent them during the hearing process.   

 

Security Clearance Issues for Federal Employees and Contractors Involving Guideline B, Foreign Influence

By John V. Berry, Esq., www.berrylegal.com

Foreign Influence issues under Guideline B of the Adjudicative Guidelines for security clearance matters are a commonly used basis for the Government in delaying or denying a security clearance application or reinvestigation. Guideline B applies to both federal employees and contractors.

BACKGROUND FOR GUIDELINE B, FOREIGN INFLUENCE CASES

Guideline B, Foreign Influence, covers a number of issues involving potential risks to classified information based on foreign influence. A number of individual issues come up with respect to foreign influence where the Government has reason to believe that an individual could have divided loyalties or foreign financial interests / foreign property abroad that might place classified information at risk. The rationale behind foreign influence concerns for the Government is that foreign interests and contacts can become potential security issues where a person with a clearance could be subject to foreign manipulation or somehow be induced to help a foreign government by providing classified information.

In evaluating Guideline B issues, the Government considers the nature of scope of the foreign contacts and/or foreign interests for the security clearance applicant. They also consider the particular foreign government involved, i.e. whether they tend to be allied with the United States or whether the country has taken an adversarial approach to the United States. For instance, it is often easier to mitigate security concerns where a security clearance applicant has ties to a country like the United Kingdom, versus ties to a country such as North Korea. This is because the Government considers the nature of the foreign government involved in each case. In particular, they consider the intelligence gathering history of a foreign government as important evidence that provides context for all the other evidence of record and must be brought to bear on the ultimate conclusions in the case. See ISCR Case No. 06-18400 (App. Bd. Aug. 2, 2007); ISCR Case No 04-07766 (App. Bd. Sept. 26, 2006).

When issues of foreign influence arise, in the scope of a security clearance examination or review, it is critical to take them seriously and to retain legal counsel familiar with these types of security clearance issues in order to minimize the potential damage to a security clearance. Many of the issues are explained in the language of Guideline B, listed below:

Guideline B: Personal Conduct.   The Concern. A security risk may exist when an individual's immediate family, including cohabitants and other persons to whom he or she may be bound by affection, influence, or obligation are not citizens of the Untied States or may be subject to duress. These situations could create the potential for foreign influence that could result in the compromise of classified information. Contacts with citizens of other countries or financial interests in other countries are also relevant to security determinations if they make an individual potentially vulnerable to coercion, exploitation, or pressure.

Conditions that could raise a security concern and may be disqualifying also include: (1) An immediate family member, or a person to whom the individual has close ties of affection or obligation, is a citizen of, or resident or present in, a foreign country; (2) Sharing living quarters with a person or persons, regardless of their citizenship status, if the potential for adverse foreign influence or duress exists; (3) Relatives, cohabitants, or associates who are connected with any foreign government; (4) Failing to report, where required, associations with foreign nationals; (5) Unauthorized association with a suspected or known collaborator or employee of a foreign intelligence service; (6) Conduct which may make the individual vulnerable to coercion, exploitation, or pressure by a foreign government; (7) Indications that representatives or nationals from a foreign country are acting to increase the vulnerability of the individual to possible future exploitation, coercion or pressure; (8) A substantial financial interest in a country, or in any foreign owned or operated business that could make the individual vulnerable to foreign influence.

Conditions that could mitigate security concerns under foreign influence include: (1) A determination that the immediate family member(s) (spouse, father, mother, sons, daughters, brothers, sisters), cohabitant, or associate(s) in question are not agents of a foreign power or in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the person(s) involved and the United States; (2) Contacts with foreign citizens are the result of official United States Government business; (3) Contact and correspondence with foreign citizens are casual and infrequent; (4) The individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons or organizations from a foreign country; (5) Foreign financial interests are minimal and not sufficient to affect the individual's security responsibilities.

TIPS IN HANDLING SECURITY CLEARANCE CASES INVOLVING FOREIGN INFLUENCE ISSUES

In security clearance cases involving Guideline B, Foreign Influence, it is important to thoroughly review all of the facts listed in the Statement of Reasons (SOR) and make a checklist of the allegations that are at issue. This is important because it will be crucial to rebut each and every allegation of foreign influence, no matter how minor they seem. In our law practice, we advise individuals that have security clearance issues falling under Guideline B to obtain as much information regarding the allegations in order to effectively rebut them in your response before your agency, Central Adjudication Facility (CAF), Central Clearance Facility (CCF), the Department of Hearings and Appeals (DOHA), Personal Security Appeals Board (PSAB) or other oversight authority for your security clearance.

Providing a general response, without substantial supporting evidence, often does not result in effectively rebutting the security concerns raised under Guideline B. When Guideline B allegations are raised, an applicant needs to aggressively respond to each of the factual allegations made, providing a full explanation/rebuttal of each issue raised by the Government, in addition to providing documents to support your response.

One of the most helpful types of information that can be provided by an individual seeking a clearance are written (and preferably sworn) statements from other individuals that support a person’s loyalty to the United States. For example, if you are alleged to have had a number of foreign contacts, the best type of response would include written statements from others (co-workers, supervisors, community leaders) supporting your loyalty to the United States.

It is also helpful for security clearance applicants with foreign influence concerns to provide documents and statements that demonstrate the minor nature of foreign contacts, financial interests, property and/or influence that have been cited in the SOR as potential security issues. While obtaining these types of supporting documents and witness statements can be time consuming, often times it is these very types of documents which make the difference in obtaining a positive outcome as to one's security clearance application in cases involving alleged foreign influence.

Foreign influence cases under Guideline B of the Adjudicative Guidelines involve individual sets of facts and mitigating factors specific to each case so it is important for an attorney to be consulted as soon as possible in the process to assist applicants.

Security Clearance Issues for Federal Employees and Contractors under Guideline E, Personal Conduct

By John V. Berry, Esq., www.berrylegal.com

Guideline E of the Adjudicative Guidelines for Security Clearance evaluations is one of the most commonly used guidelines by the government for denying security clearance applications, renewals or upgrades. 

BACKGROUND FOR GUIDELINE E CASES

Guideline E, Personal Conduct, covers such broad categories as honesty, falsification, reliability and questionable judgment.  One of the most common issues that we see in our practice which falls under Guideline E involves alleged instances of dishonesty.   We also see other security clearance concerns falling under Guideline E, where an individual receives a Statement of Reasons (SOR) related to alleged poor judgment evidenced by having debts, the failure to follow rules and other work-related misconduct. 

 Truthfulness, falling under Guideline E, is viewed as one of the most important qualities by the government for those holding a security clearance and hence one of the most common issues that arises in security clearance investigations.  One of the other key areas for review by investigators under this guideline involves an applicant’s willingness to follow rules, laws and regulations.  The government believes that the protection of classified information generally requires strict compliance with rules and regulations. An individual’s willingness to comply, in general, with rules and regulations is, therefore, a very important qualification for access to sensitive information. As a result, any conduct which indicates an individual's inability or the lack of desire in following laws, rules and regulations can be a significant security concern under Guideline E, Personal Conduct. 

When issues involving personal conduct arise, in the scope of a security clearance examination or review, it is very important to take them seriously and to obtain legal counsel familiar with these types of issues in order to minimize the potential damage to a security clearance.  

Guideline E, Personal Conduct, in pertinent part, lists the government's concerns under this provision, as follows:

Guideline E: Personal Conduct 

The Concern. Conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate that the person may not properly safeguard classified information.

Conditions that could raise a security concern and may be disqualifying also include:

(1) Reliable, unfavorable information provided by associates, employers, coworkers, neighbors, and other acquaintances;

(2) The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities;

(3) Deliberately providing false or misleading information concerning relevant and material matters to an investigator, security official, competent medical authority, or other representative in connection with a personnel security or trustworthiness determination;

(4) Personal conduct or concealment of information that may increase an individual's vulnerability to coercion, exploitation, or duties, such as engaging in activities which, if known, may affect the person's personal, professional, or community standing or render the person susceptible to blackmail;

(5) A pattern of dishonesty or rule violations, including violation of any written or recorded agreement made between the individual and the agency;

(6) Association with persons involved in criminal activity.

Conditions that could mitigate security concerns include:

(1) The information was unsubstantiated or not pertinent to a determination of judgment, trustworthiness, or reliability;

(2) The falsification was an isolated incident, was not recent, and the individual has subsequently provided correct information voluntarily;

(3) The individual made prompt, good faith efforts to correct the falsification before being confronted with the facts;

(4) Omission of material facts was caused or significantly contributed to by improper or inadequate advice of authorized personnel, and the previously omitted information was promptly and fully provided;

(5) The individual has taken positive steps to significantly reduce or eliminate vulnerability to coercion, exploitation, or duress;

(6) A refusal to cooperate was based on advice from legal counsel or other officials that the individual was not required to comply with security processing requirements and, upon being made aware of the requirement, fully and truthfully provided the requested information; and

(7) Association with persons involved in criminal activities has ceased.

TIPS IN HANDLING SECURITY CLEARANCE CASES INVOLVING PERSONAL CONDUCT ISSUES

In security clearance cases involving Guideline E, Personal Conduct, it is important to thoroughly review all of the facts listed in the SOR and make a checklist of the allegations that are at issue.  This is important because it will be crucial, especially in cases alleging instances of untruthfulness or falsification, to fully contest each of the factual allegations mentioned in the SOR to support the security concern under Guideline E. 

In our practice, we advise individuals that have security clearance issues falling under Guideline E to obtain as much information regarding the allegations to rebut them in your response before your agency, Central Adjudication Facility (CAF), Personal Security Appeals Board (PSAB) or other oversight authority for your clearance.  Providing a general response, without supporting evidence, often does not result in effectively rebutting the security concerns raised. 

Essentially, when Guideline E allegations are raised, an applicant needs to aggressively respond to each of the factual allegations made, providing a full explanation/rebuttal of each issue raised by the agency, in addition to providing documents to support your response.  One of the most helpful types of information that can be provided by an individual seeking a clearance are written (and preferably sworn) statements from other individuals that support your version of events regarding an allegation.

For example, if you are alleged to have had a history of not following rules and regulations because a former employer provided this allegation to investigators, the best type of response would include written statements from others that were present which would support your version of events.  While obtaining documents and witness statements can be time consuming and/or difficult, often times it is what makes the difference in obtaining a positive outcome as to one's security clearance application.  

Personal conduct cases under Guideline E involve diverse types of facts, and a number of mitigating factors specific to each case so it is important for an attorney to be consulted as soon as possible in the process to assist applicants.  

 

Security Clearance Issues Arising Under Guideline H, Drug Involvement

By John V. Berry, Esq., www.berrylegal.com 

In our Firm’s security clearance defense practice, one of the most common issues faced by Federal employees and contractors alike involves Guideline H, Drug Involvement.  When an individual comes to our practice to seek assistance in regards to their security clearance this is one of the most frequent issues that comes up.  Guideline H of the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information involves issues that are sometimes difficult to face, let alone explain, such as prior illegal drug use, or issues with regards to the misuse of a prescription drug. 

Drug involvement issues are often raised by Federal agencies with respect to security clearance determinations and included within an individual Federal employee or contractor’s Statement of Reasons in denying a clearance.  These kinds of security clearance issues require a lot of planning on the part of the individual involved to explain prior illegal drug use/involvement or prescription drug abuse, so obtaining counsel is highly recommended. 

Guideline H, Drug Involvement – Defined

Guideline H is defined in the Adjudicative Guidelines as follows:

The Concern. Use of an illegal drug or misuse of a prescription drug can raise questions about an individual's reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person's ability or willingness to comply with laws, rules, and regulations.

(a) Drugs are defined as mood and behavior altering substances, and include: . . . marijuana or cannabis, depressants, narcotics, stimulants, and hallucinogens), and (2) inhalants and other similar substances;

(b) drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.

This definition used in the Adjudicative Guidelines is fairly general, but it is very important to be truthful with regards to any prior drug usage or prescription drug abuse.  Often times drug usage itself can be mitigated, and a clearance can be obtained, but if a Federal employee or contractor is caught being less than truthful with respect to prior drug usage it raises a significant possibility that the person will be denied a clearance for having not been fully truthful.  If one is denied a clearance on these grounds it makes it very difficult to obtain a security clearance in the future. 

Types of Conduct Under Guideline H, Drug Involvement, Which is Subject to Review

One of the most frequent questions that is asked about prior drug use or involvement is what type of conduct a Federal employee or contractor needs to be concerned about.  While there are many types of potentially disqualifying issues here, they generally can include:

(1)  Prior illegal drug usage;

(2)  Drug possession, distribution, processing, manufacturing, sale or possession of drug paraphernalia, etc.;

(3)  Testing positive for illegal drug use;

(4)  Any illegal drug use after being granted a security clearance; and

(5)  Receiving a diagnosis of drug abuse or dependence.

Some Security Clearance Defenses to Prior Drug Involvement

There are a number of mitigating circumstances (defenses) that one can raise with respect to security clearance cases involving drug involvement.  Raising these defenses through legal counsel can increase a Federal contractor or employee’s chances of obtaining or keeping their security clearance.  While there are many different types of defenses, some of the best mitigating defenses to allegations of drug involvement include:

(1)  The drug use or involvement, etc. was a long time ago or was infrequent that it does not cast doubt on the individual’s reliability, trust or judgment;

(2)  Following a period of drug involvement, the Federal employee or contractor is able to show that they have abstained from use or involvement for an appropriate period of time;

(3)  Any prior prescription drug abuse occurred a long time ago and/or had occurred following a serious illness and is now not an issue;

(4)  If the individual was associated with individuals involved in improper drug involvement that the person seeking the security clearance has disassociated themselves from these individuals;

(5)  The individual changes or avoids environments where drugs were previously used;

(6)  Successful treatment in a drug treatment program, for either illegal drug use or for the abuse of prescription medicine; and

(7)  If the issue involves the abuse of prescription medicine, the individual provides a favorable medical diagnosis by a qualified medical professional.

Closing Thoughts in Regards to Security Clearance Cases Involving Drug Involvement Under Guideline H.

In cases involving drug involvement under Guideline H, whether before a Federal employee’s Agency, DONCAF, DOHA or the Agency’s personnel security appeals board, it is important to be honest in responding to questions about drug involvement and usage.  It is also very important to make sure that one has a prepared explanation and evidence to support the explanation about prior drug involvement.  Often times there are many good defenses for prior drug usage or for prescription drug problems.  This is why it is very important for any individual that must respond to prior drug involvement to seek counsel to assist them. 

 

Security Clearance Guidelines and Defense for Federal Employees and Contractors Regarding Guideline G, Alcohol Consumption

By John V. Berry, Esq., www.berrylegal.com

Alcohol usage can be a major issue with gaining or keeping security clearances held by Federal employees and contractors.  Such determinations arise under Guideline G, Alcohol Consumption, contained within the Adjudicative Guidelines. Guideline G is the portion of the Guidelines involving an applicant’s use of alcohol and it’s impact on an individual’s ability to obtain or maintain a security clearance.

Guideline G issues usually come into play when a Federal employee or contractor has issues regarding the use of alcohol. The obvious concern by a Federal agency and the Defense Office of Hearings and Appeals (DOHA) is that excessive alcohol consumption can lead to the exercise of questionable judgment or the failure to control impulses, both of which are not considered not to be good for the purposes of access to classified information.

LEGAL ISSUES TO BE REVIEWED BY DOHA/PSAB IN ALCOHOL CONSUMPTION CASES

When issues arise involving alcohol use/consumption, in the scope of a security clearance examination or review, it is very important to take them seriously and to obtain legal counsel familiar with these types of issues in order to minimize the potential damage to a security clearance. When alcohol issues are reviewed in regards to security clearances cases, they fall under Guideline G, Alcohol Consumption, which reads as follows:

Guideline G: 
Alcohol Consumption

The Concern. Excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual's reliability and trustworthiness. Conditions that could raise a security concern and may be disqualifying include: (a) alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, disturbing the peace, or other incidents of concern, regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent; (b) alcohol-related incidents at work, such as reporting for work or duty in an intoxicated or impaired condition, or drinking on the job, regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent; (c) habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent; (d) diagnosis by a duly qualified medical professional (e.g., physician, clinical psychologist, or psychiatrist) of alcohol abuse or alcohol dependence; (e) evaluation of alcohol abuse or alcohol dependence by a licensed clinical social worker who is a staff member of a recognized alcohol treatment program; (f) relapse after diagnosis of alcohol abuse or dependence and completion of an alcohol rehabilitation program; (g) failure to follow any court order regarding alcohol education, evaluation, treatment, or abstinence.

Conditions that could mitigate security concerns include: (a) so much time has passed, or the behavior was so infrequent, or it happened under such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual's current reliability, trustworthiness, or good judgment; (b) the individual acknowledges his or her alcoholism or issues of alcohol abuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence (if alcohol dependent) or responsible use (if an alcohol abuser); (c) the individual is a current employee who is participating in a counseling or treatment program, has no history of previous treatment and relapse, and is making satisfactory progress; (d) the individual has successfully completed inpatient or outpatient counseling or rehabilitation along with any required aftercare, has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations, such as participation in meetings of Alcoholics Anonymous or a similar organization and has received a favorable prognosis by a duly qualified medical professional or a licensed clinical social worker who is a staff member of a recognized alcohol treatment program.

TIPS IN HANDLING SECURITY CLEARANCE CASES INVOLVING ALCOHOL CONSUMPTION

In security clearance cases involving Guideline G, Alcohol Consumption, it is very important to understand just how critical it is to demonstrate that the Federal employee or contractor involved understands (and is able to admit where appropriate) the alcohol issues that they face (or have faced) and have taken action to seek help or obtain guidance. The best strategy for success in these types of alcohol cases (ex. prior arrest for alcohol traffic incidents) is to show that the applicant has handled the issues in a responsible manner and that enough time has transpired to mitigate the security concerns associated with the perceived or actual alcohol usage.

Alcohol consumption cases can involve many differing types of variables and a number of mitigating factors specific to each case so hiring counsel to represent and advise the person involved is critical because each case is different.

Security Clearance Issues Arising Under Guideline F, Financial Considerations

By John V. Berry, Esq., www.berrylegal.com

A good example of one of the major issues faced by federal employees and federal contractors with respect to security clearance cases involves issues arising under Guideline F, Financial Considerations.   Guideline F is the portion of the Adjudicative Guidelines which involve financial considerations and their impact on an individual’s ability to maintain a security clearance. 

Guideline F issues usually come into play when a federal employee or contractor has build up significant debts or is overextended in their ability to make monthly debts.  The obvious concern with these types of cases is that an individual may be more vulnerable to foreign or other influence if they are in financial debt or cannot meet their bills. 

This type of case is best illustrated by a recent ruling of the Defense Office of Hearings and Appeals (DOHA), in ISCR Case No. 10-040008 (DOHA Jan. 31, 2011) issued in late January, 2011.  In this case, DOHA Administrative Judge Carol Ricciardello reviewed a security clearance denial that involved a federal contractor who had run into difficulties under Guideline F, Financial Considerations. 

CASE BACKGROUND

In particular, the case (ISCR Case No. 10-040008) at issue involved a federal contractor that had gotten into security clearance difficulties when a close family friend had sought the contractor’s help in co-signing for a mortgage in order to help them qualify for the home purchase.  The contractor ultimately agreed to help out the family friend, on a temporary basis, in order to help them secure the mortgage.

Unfortunately, the family friend experienced financial difficulties after a number of months and was unable to make payments on the home, causing the federal contractor to become liable for making these payments.  Eventually, the contractor had to assume full responsibility for the close family friend’s financial obligations.  This, ultimately, led to having to sell the home through a short sale, and ultimately a dispute between the contractor and the mortgage company about the amount that she owed.

The federal contractor eventually received a Statement of Reasons (SOR), relating to the disputed debt owed to the mortgage company as she attempted to negotiate a settlement with the creditor.  The case eventually was assigned to the DOHA and an administrative judge was assigned to hear it.  The federal contractor had sought the restoration of her clearance. 

LEGAL REASONING BY JUDGE IN GRANTING CLEARANCE

The Administrative Judge, in granting the federal contractor’s security clearance, made several key observations about her actions in the case, which are important to note by others facing issues under Guideline F, Financial Considerations.   The positive factors in the case that mitigated the concerns regarding the federal contractor’s security clearance included:

    * That the contractor had a record of paying her bills on time;

    * That the contractor had a record of keeping a savings account;

    * That the contractor had kept up the funding her retirement accounts;

    * That despite the fact that she was attempting to help a family friend, and that the              mortgage was not for her own home, that she assumed the debt and took                          responsibility when the problems arose;

    * That the contractor was financially solvent and lived within her means;                       

    * That the contractor had a provided evidence to show her good character and                    honesty;

    * That despite the difficult situation that the contractor faced, that the contractor                    attempted to confront the issues head on and acted with responsibility.

LESSONS TO TAKE FROM CASE

In security clearance cases involving Guideline F, Financial Considerations, it is very important to understand just how critical it is to demonstrate that the federal employee or contractor involved has been responsible regarding their finances or has made specific changes in their conduct to eliminate any future security concerns.  In this case, the contractor was able to demonstrate this in the hearing process before the Administrative Judge and thereby obtain her security clearance. 

These cases can involve many differing types of variables and a number of mitigating factors specific to each case so hiring counsel to represent and advise the person involved is critical because each case is different. 

The Significance of the Statement of Reasons in Security Clearances Cases

By John V. Berry, Esq., www.berrylegal.com

One of the most important considerations that our law firm evaluates in respect to our Security Clearance practice involves what is known as the Statement of Reasons.  The Statement of Reasons or SOR is the centerpiece of a security clearance case for federal employees and contractors.

THE STATEMENT OF REASONS – GENERALLY

In essence, the Statement of Reasons is the core of the security clearance process for federal employees and contractors. The Statement of Reasons is the legal equivalent to the filing of a civil complaint in regards to civil issues; it is the center of the case prepared against an individual in regards to their security clearance. 

Typically, for federal employees the SOR or Statement of Reasons is issued following the origination of the security clearance concern from the local security office. The Statement of Reasons, for federal employees, will then be issued, usually by the relevant agency’s central adjudication facility (CAF). The Statement of Reasons will usually be attached to a cover letter, referencing an agency’s intent to revoke eligibility for an individual’s security clearance. In contractor cases, the SOR is issued by DOHA.

The Statement of Reasons will then list the factual concerns upon which the security clearance issues have arisen and the security guidelines which are involved.  The following is an example of a Statement of Reasons issued for a federal employee:

_________________________________

SAMPLE STATEMENT OF REASONS

Here is an example of the core substance of a sample Statement of Reasons, for a federal employee:

Subj:             INTENT TO REVOKE ELIGIBILITY FOR SECURITY CLEARANCE AND ASSIGNMENT TO A SENSITIVE POSITION, MS. JOANNA JAMES,

SSN:            XXX-XX-1234

STATEMENT OF REASONS

Security Guideline(s):  FINANCIAL CONSIDERATIONS

2 Feb 11            You were issued a Letter of Intent to Suspend Access to Classified Information from DOD Installation ABC for alleged discrepancies with regards to allegations that you misused your government credit card to pay for personal expenses on 12 December 10.

Applicable Personnel Security Guidelines

The following are excerpts of the personnel security guidelines cited in reference (b), which are relevant to your case.  Each guideline contains both disqualifying and mitigating factors.

FINANCIAL CONSIDERATIONS

The Concern. Failure or inability to live within one's means, satisfy debts, and meet financial obligations may indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about an individual's reliability, trustworthiness and ability to protect classified information. An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds. Compulsive gambling is a concern as it may lead to financial crimes including espionage. Affluence that cannot be explained by known sources of income is also a security concern. It may indicate proceeds from financially profitable criminal acts.

_________________________________

RESPONDING TO THE STATEMENT OF REASONS

Once an individual receives a Statement of Reasons, the key for a successful defense involves being able to successfully refute the factual allegations or to mitigate them.   That process begins with hiring an attorney to assist the individual in their response.   In the example above, the first step as an attorney might be to determine from the individual whether the allegation itself was valid, i.e. that the government credit card was used for the personal expenses alleged (sometimes mistakes are made in prepare SORs). 

Next, if it is determine that the individual’s government credit card was used by the individual employee for his/her personal expenses, the next question as an attorney might be to find out what mitigating factors could be helpful in explaining why the person involved should still be granted a security clearance.  To do this, one must review the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information.  For instance, there may be an argument that the expenses were really authorized by his agency, or that perhaps there was confusion about whether the expenses were in fact authorized which might serve mitigate the security concerns.  Another potential helpful factor might be whether or not the employee immediately paid the government credit card right away, reported the charge to supervisors ahead of time, etc. 

The key to responding to the Statement of Reasons or SOR is to start with the factual allegations, make a full synopsis of all facts involving the allegation and review the potential mitigating factors in such cases. It is at that point that the attorney can begin preparing an effective response to the SOR. 

CONCLUSIONS

The SOR is the cornerstone of any security clearance case for a federal employee or contractor.  Any security clearance defense case must begin with a comprehensive review of the SOR.  From that point, an attorney can began to establish a strong defense for the client.  Security clearance cases are unique and require the advice and assistance of an attorney.  

 

DOD Security Clearance Program Removed from High Risk List

By John V. Berry, Esq., BERRY & BERRY, PLLC, www.berrylegal.com

In an area of importance to our Law Firm’s security clearance legal practice, the Government Accountability Office (GAO) announced recently that it was removing the Department of Defense’s (DOD) security clearance program from the GAO High Risk list of government programs in trouble. 

The GAO found that “improvements in timeliness and better management have led the Government Accountability Office to remove the ‘high risk’ designation from the Pentagon’s Personal Security Clearance Program, a tag the auditors give to programs they believe are subject to mismanagement, waste, fraud or abuse.”

The GAO, in their assessment of the improvements to the security clearance program, stated that they were “removing DOD’s personnel security clearance program from the High-Risk List because of the agency’s progress in timeliness and the development of tools and metrics to assess quality, as well as its commitment to sustaining progress. Importantly, continued congressional oversight and the committed leadership of the Suitability and Security Clearance Performance Accountability Council (Council)—which is responsible for overseeing security clearance reform efforts—have greatly contributed to the progress of DOD and governmentwide security clearance reform.”

As part of their decision, the GAO listed the following reasons for removing the DOD security clearance program from the High-Risk list, which were as follows:

(1) that DOD had significantly improved the timeliness of security clearances and met the IRTPA objective for processing 90 percent of initial security clearances on average within 60 days for fiscal year 2010;

(2) that DOD has worked with members of the Council to develop a strategic framework for clearance reform;

(3) that DOD has designed quality tools to evaluate completeness of clearance documentation;

(4) that DOD has issued guidance on adjudication standards; and

(5) that the DOD continued to be a prominent player in the overall security clearance reform effort, which includes entities within the Office of Management and Budget, the Office of Personnel Management, and the Office of the Director of National Intelligence.

Thoughts on the GAO Cited Improvements to the DOD Security Clearance Program

The changes noted in the GAO Report are positive in general.  In practice, our security clearance practice clients are most concerned with the timing of adjudications, soimething that has shortened with the latest review by the GAO.  Hopefully, this is a sign of future efficiency in processing security clearance matters for federal employees and contractors. 

 

DOHA Personal Appearance Tips in the Context of Security Clearance Appeals

By John V. Berry, Esq., BERRY & BERRY, PLLC, www.berrylegal.com

A topic that often comes up in our law firm’s security clearance practice involves the issue of how to best prepare for an upcoming personal appearance before the Department of Defense, Defense Office of Hearings and Appeals (DOHA).  While the topic could cover several chapters, I have assembled a few observations in the process from our practice our this area of law. 

Keep in mind that it is important to obtain an attorney familiar with security clearance practice to best assist individuals approaching a personal appearance.  Counsel can best advise an individual in how to prepare and present their cases in order to give the best possible opportunity for a successful outcome. 

THE DOHA PERSONAL APPEARANCE PROCESS

When you receive a notice that your security clearance matter has been scheduled for a personal appearance before an DOHA Administrative Judge, there are a number of immediate issues that must be addressed in order to prepare for this very important presentation.    It is important to realize that the Administrative Judge will have access to the entire case file of documents and information that was reviewed and/or considered by the Central Adjudication Facility in making their earlier adverse determinations with regards to an individual’s security clearance.

Therefore, the key in preparing for one’s personal appearance is for the individual presenting their matter before the DOHA Administrative Judge to not just repeat earlier arguments made below, but to do their best to exhaustively present any and all other materials and/or witnesses that have not yet been reviewed in order to give one the best chance of obtaining a positive result.   

SOME DOHA PERSONAL APPEARANCE BASICS

As an individual prepares for their personal appearance, it is important to understand some of the dynamics behind the personal appearance hearing.  Some of these dynamics include the following facts about the hearing:

1. Hire an attorney experienced in security clearance cases to represent you in your case;
2. The DOHA hearing may take place with or without Department attorneys present;
3. The DOHA personal appearance proceedings are transcribed by court reporter;
4. The DOHA personal appearance will begin in earnest with the questioning of witnesses brought in support of the individual seeking the security clearance;
5. Following other witnesses, the individual seeking their clearance will testify (which is why I highly recommend utilizing counsel in these types of cases);
6. Following the initial testimony of witnesses, either the DOHA Administrative Judge or the Department’s attorney may question the witnesses;
7. The individual seeking the clearance (usually their attorney) may offer a closing argument in support of their clearance;
8. Individuals may be permitted to supplement the hearing record if a witness is not available on the day of hearing; and
9. The Administrative Judge, following the closing of the record, will issue a recommended decision in support of or arguing against the granting of a security clearance. 

AN OUTLINE OF TIPS FOR THE DOHA PERSONAL APPEARANCE PROCESS

Here are some practices that we follow in our security clearance practice as we handle security clearance proceedings at DOHA.

1.         Preparation: One of the key aspects of the personal appearance is to thoroughly prepare for the hearing.  A DOHA hearing must be well planned out in advance.  If the personal appearance is not thought out and well executed, the Administrative Judge could become frustrated with the presentation which is not something that is helpful in obtaining a positive ruling.

2.         Exhibits: Exhibits to support one’s case at a personal appearance are highly recommended. It is very important to gather as much evidence and/or documents in support of your security clearance matter as possible.  If a written statement is to be submitted on behalf of an individual at a DOHA proceeding, it should be notarized where possible (or possibly in the form of a declaration) as these will be given more credence than those that are not sworn. 

3.         Witnesses:   Make sure that all witnesses for the DOHA appearance are ready and prepared to testify before the Administrative Judge.  These individuals can include co-workers, supervisors, doctors, specialists, and others whose testimony may go to the issue of granting an individual’s security clearance. 

CONCLUSIONS

In sum, DOHA personal appearances are perhaps the most important part of the security clearance review process and should be treated as such.  Despite any indications that the process can be undertaken by individuals without counsel, I have found that to be an extremely unwise course of action which can have devastating circumstances.  Anyone facing a DOHA personal appearance should make the most of the opportunity to present a strong case in favor of the granting of a security clearance. 

Security Clearance Legal Issues

By John V. Berry, Esq., www.berrylegal.com

Today, February 6, 2011, the Law Firm of Berry & Berry, PLLC, is launching this Security Clearance Law Blog in order to examine key issues involved in the Security Clearance Process.  As we move forward with articles in the days to come, we hope that you find the information posted here to be of use.