Security Clearance Law Blog

The Importance of Character Letters in Security Clearance Cases

 

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

We often meet with federal employees and government contractors who are faced with security concerns or potential security concerns in obtaining, applying for or retaining a security clearance. These employees often ask for us assistance in responding to a security clearance denial or revocation. No matter the security concerns at issue, we find that it is always important and helpful for the individual to respond with character letters which help define the character of the clearance holder or applicant to the adjudicator.  This article focuses on the benefit of character letters in the security clearance process.

Suitability Appeals for Federal Employees and Applicants

By John V. Berry, www.berrylegal.com

Suitability determinations are an increasingly important issue for federal government applicants and federal employees. The process of successfully navigating suitability concerns has at the same time become more complex due to the ever-increasing security concerns of the United States Government. Our firm serves as suitability lawyers for federal employees and applicants who encounter difficulties in the suitability process.  

What is Suitability?

Federal employment positions often include important duties that do not require a security clearance but are sensitive in nature. Hence, a suitability or background investigation is required in order to hold the position.  For instance, included in these types of positions are certain types of federal law enforcement officers, IT professionals, comptrollers, and public safety and health workers.  These positions are often referred to as public trust positions. They are subject to background investigations, which include a National Agency Check and Inquiries (NACI) review and potential personal interview and reference checks.

Public Trust/Suitability Investigations  

The first step in a suitability, background or public trust investigation often comes from an individual’s completion of the SF-85 (Questionnaire for Non-Sensitive Positions), SF-85P (Questionnaire for Public Trust Positions) and even occasionally an SF-86 (usually used for secret level clearances). The investigation can also include follow up information requests (interrogatories) and/or interviews regarding areas of concern.

Areas of Suitability Concern

When making suitability concerns, under 5 C.F.R. § 731.202, an agency or OPM will consider:

(1) Misconduct or negligence in employment;
(2) Criminal or dishonest conduct;
(3) Intentional false statements, deception, fraud;
(4) Refusal to furnish testimony;
(5) Alcohol abuse, without evidence of rehabilitation;
(6) Illegal use of narcotics, drugs or other controlled substances, without evidence of rehabilitation;
(7) Knowing and willful engaged in acts designed to over the U.S. Government by force; and
(8) Any statutory or regulatory bar that prevents the lawful employment of the person at issue.

Initial Response to Suitability Issues

Should background security issues not be resolved during the investigation, a federal agency and/or the Office of Personnel Management (OPM) can take what is known as a suitability action. Suitability actions are governed by federal regulations at 5 C.F.R. Part 731 and are taken when an employee or applicant is deemed to be unsuitable. During suitability actions, a federal applicant or employee will be given notice of the suitability issues and be given an opportunity to respond to these issues. The goal of a response is to mitigate or show that the allegations are not warranted.

Under 5 C.F.R. § 731.202 (a) and (b), federal agencies and OPM must consider the following considerations in mitigating suitability concerns:

(1) The nature of the position that the individual is applying for or is employed;
(2) The nature and seriousness of the conduct;
(3) The circumstances surrounding the conduct;
(4) The recency of the conduct;
(5) The age and maturity of the person involved at the time of the conduct;
(6) Contributing societal conditions; and
(7) The absence or present or rehabilitation or efforts towards rehabilitation.

An applicant or employee will normally be provided the opportunity to respond to the suitability concerns within a short period of time, often 30 days. In that response, it is critical to seriously rebut the allegations at issue. This can often include providing documentation rebutting the allegations, and character affidavits and/or declarations. If a suitability action is sustained, then an appeal is needed.

Suitability Appeals

If an applicant is deemed unsuitable, depending on their federal employer they may be able to appeal the suitability denial to the agency or to the Merit Systems Protection Board (MSPB). Each federal agency varies with respect to suitability rights. If the case is before the MSPB must find that the suitability allegations against the federal employee or applicant can be shown by a preponderance of the evidence. If the federal employee or applicant is successful in rebutting all allegations made, the matter must be remanded to OPM or the agency for a determination as to whether the original action was appropriate. If the case is before a federal agency instead of the MSPB, they have discretion to overturn the suitability determination. Some federal agencies do not provide appeal rights in suitability cases.

Contact Us

When an individual is facing suitability issues or a suitability appeal it is important to obtain legal advice and legal representation. Our attorneys can advise employees on areas of the SF-85,  SF-85P and SF-86 or other related suitability documentation that require additional care and attention. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. 

NSA Security Clearance Process

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

As we have mentioned in other articles, the U.S. Government security clearance process is not centralized and varies somewhat between federal agencies. In addition to security clearances processed by the Department of Defense (DOD), other federal agencies have their own procedures and personnel that process their own security clearance decisions for federal employees and government contractors  (e.g. DOS, DHS, DOI, NGA, DOE, NRO, CIA, etc). The National Security Agency (NSA) is an agency with its own security clearance process. This article addresses the security clearance process at the NSA for security clearances and Sensitive Compartmented Information (SCI) access. For NSA security clearance cases, you should retain counsel familiar with the process.

The Clearance Process at NSA

The security clearance process at NSA is somewhat similar to the procedures for DoD employees, but there are some differences.  The NSA follows the intelligence agency policies regarding the processing of security clearances and SCI access. The following are the normal steps in the security clearance review process for NSA clearance holders or applicants when they are confronted with security clearance issues.

Step 1: Revocation / Clearance Decision Statement Letter is Issued

When a federal, military or contractor employee has a security clearance or SCI access issue with NSA, they will receive a revocation or denial letter from the NSA, listing the background and security concerns at issue. The individual will usually then be given 45 days in which to request a review of the security concerns and respond to the security concerns in writing. The investigative file, upon which the denial is based, will usually be included by the NSA as well to facilitate a response by the individual.  The investigative file will usually include reports and/or other items relevant to the security concerns.  

Step 2: Responding to the Revocation / Denial Letter

At this stage, the individual responds to the revocation or denial letter from the NSA. A response should address the security concerns at issues, e.g. Guideline E, Personal Conduct, or other issues and focus on the potential mitigation of the security concerns.  It is important to provide documentation, such as declarations, affidavits, and other documentation relevant to the security concerns at issue.  

Step 3: Decision by Office of Personnel Security on First Appeal Review Level

Once the appeal from the individual is received, it will be reviewed and the NSA Office of Security will issue a decision as to whether or not the security concerns have been dismissed or mitigated. If so, the matter is then resolved. If not, the individual will be provided a decision, usually a page or two in length, discussing the reasons why the First Appeal was denied and of the right to a final appeal before the NSA Access Appeals Panel.  The First Appeal may indicate that some of the items have been mitigated, but that others have not been.  

Step 4: Review by NSA Access Appeals Panel

The next step in the NSA security clearance process is for the employee to appeal to the NSA Access Appeals Panel. This is an in person appeal where the individual can be represented by counsel in presenting evidence and argument as to why the security clearance or SCI access decision should be overturned. During this personal appearance before the Access Appeals Panel, the individual can present documents in support of keeping their security clearance to the panel. The panel, usually consisting of about 4 members (along with other personnel present), will often ask a number of questions about the security concerns at issue.

Step 5: NSA Access Appeals Panel Decision

Following the personal appearance, the NSA Access Appeals Panel issues a decision, either granting the clearance or access (or continued processing) or a denial.  There is also the process of re-applying for a clearance with the NSA in the future after a waiting period following a denial.  

Contact Us

When an individual is facing security clearance issues at NSA it is important to obtain legal advice and potential representation. Our law firm represents individuals in the security clearance process before the NSA. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. 

Preparing for the Security Clearance Interview

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

You have completed your e-QIP / SF-86 and you are waiting to be interviewed in the next step of the investigative process in order to obtain your Top Secret security clearance.  This is often referred to as the Personal Interview or Personal Subject Interview stage.  Given that this next step in the process is very important to your ultimate security clearance review, it is important to go in as prepared as possible. The interview process will usually occur a short time following the submission and review of the completed security clearance materials by the investigator. 

Security clearance investigators will review and confirm the information that the individual has supplied in the security clearance submission.  For instance, the investigator will speak with former supervisors, neighbors, co-workers, in addition to references to get a full background of the individual seeking the clearance prior to the interview. The investigator assigned to the case will also check with law enforcement agencies in areas where an individual has lived and will have reviewed other important background information.  When this review is complete, the investigator will then generally contact an individual for their personal interview. 

Preparation for the Interview

It is important for an individual to prepare for their interview with the investigator.  As mentioned above, the investigator will have reviewed the individual's submissions prior to the interview and will have identified any significant areas of concern prior to the meeting.  In our experience, generally, the individual involved will have some idea about potential areas of concern that might be brought up in the interview and thus will generally have time to prepare.

Preparation for the personal interview, as to these areas of potential concern, is a must.  For instance, if there is a recent arrest on your record, the individual should be prepared to fully explain the incident to the investigator and toprovide the relevant details.  This is just one example.  Another example is where the individual has had an alcohol related offense.  In that type of situation, the individual should go into the interview fully prepared to discuss the incident and what steps the person has taken to avoid the issue from happening again.

If your case involves known security concerns then it is also important to gather any important and relevant documents, especially those that can be helpful in explaining or mitigating the potential security concerns at issue in advance.  We advise going over these issues, in advance, with counsel so that the interview will go smoothly. 

The Personal Interview

The interview stage itself tends to last usually 1-2 hours, although different cases can result in varying times for the interview process.  Most times, there is just one investigator assigned for the personal interview, but there can be two investigators in some cases. If there are two investigators usually one of them will be assigned to ask the majority of questions, while the other may ask some follow up questions.

It is recommended that an individual bring a copy of his/her SF-86 / e-QIP application for the questions that will be discussed.  An investigator will generally go over an individual's security materials thoroughly, but may also have other questions not covered on the security forms such as issues related to illegal downloading of materials, viewing of inappropriate materials and other types of misconduct which could raise security concerns.

As mentioned above, it is important to be prepared, in advance, to address the most likely areas of concern.  It is also important to be as responsive as possible on the areas of concern raised by an investigator during the interview process.  This is clearly not the time for an individual to be defensive or to refuse to answer an investigator's questions.  Doing so may delay the individual's ability to obtain a security clearance (at best) and in some situations may result in the denial of a security clearance application.

Post Interview

When finished with the first interview, many times investigators may have follow up questions. They may conduct these follow up interview questions by telephone or in person. We generally advise clients to be responsive to such requests and to attempt to provide investigators enough information to conclude their investigation successfully. An individual does not want an investigator to give up on a clearance application and conclude that the security concerns are too significant to overcome. Once the investigation is completed, the investigator will then complete a final summary for clearance adjudicators.

Contact Us

When undergoing your background investigation for your security clearance, it is very important to be prepared for the interview stage of the process.  It can make the difference between obtaining and being denied your security clearance.  Our law firm represents federal employees and contractors in these types of security clearance matters and can be contacted at www.berrylegal.com.

Security Clearance Holders Should Avoid Investments in Marijuana Companies

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

If you are a security clearance holder and you own or work in the ever-growing marijuana industry, you could have difficulties obtaining or keeping a security clearance. We have been counseling clients about this issue since at least 2010. This article discusses the current federal government view on investments in the marijuana industry at present.

This same consideration applies to individuals that work part-time or are otherwise involved in marijuana-related businesses. Owning an investment in a marijuana company (e.g. stock) or working for a marijuana enterprise is a reportable clearance activity for security clearance holders and applicants and can lead to the loss of a security clearance or in one obtaining a clearance. The current marijuana policy comes from the Director of National Intelligence (DNI), by way of an December, 2021 memorandum which explains current government policy.

Investments in marijuana-related companies can constitute involvement in illegal drug activities. This can be the case even where the individual does not directly choose their individual stocks and even in states where marijuana businesses are completely legal. There will be varying degrees of differing factual circumstances on a case-by-case basis. The federal government’s current view is that an individual has a duty to know about their investments and to be knowledgeable about federal drug laws.

2021 Memorandum and Other Federal Directives

The 2021 memorandum is not alone.  Security Executive Agent Directive (SEAD) 4 issued in June of 2017 provides the current basis for not granting or revoking a security clearance based on drug involvement, including investments in marijuana under Guideline H:

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

. . .

(c) illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia;

. . . .

Marijuana stocks have been heralded as the new Apple stock, according to the news; the urge is to get in on the ground floor for investors. However, the problem is that until the federal government changes federal drug laws or creates a caveat for marijuana businesses, individuals that invest or otherwise become involved in marijuana investments can put their security clearance (and career) in danger. Even high-profile businesspersons can risk their security clearance over such issues.

We have also seen a lot of confusion on this issue since at least 2010 when a number of states started legalizing the use of marijuana. We have represented many clearance holders and applicants who have traveled to Colorado or elsewhere, where marijuana is legal, to simply try it. In some of these cases, the experimentation has cost the individual their security clearance.

It is advisable that individuals seeking to hold or obtain a security clearance refrain from investing in marijuana stocks until federal law or policy changes. Eventually, we believe that the federal government will change their position on this issue to an abuse standard, like alcohol usage, but for the moment investing in companies or stocks that are involved in the dispensing of marijuana can cause one to lose a security clearance.

Contact Us

If you are in need of security clearance representation, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. 

When to Hire a Security Clearance Lawyer?

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

We often meet with federal employees and government contractors facing security concerns or potential security concerns in obtaining or applying for a security clearance. They often ask our attorneys at what point they should retain a security clearance attorney to assist, advise or represent them.

The quick answer is that an individual with potential security issues should consult with experienced security clearance counsel as soon as possible. In our experience, the earlier that an individual with potential security concerns consults with a knowledgeable security clearance lawyer, the better the chances to avert a negative outcome.  We also find that it is less expensive to address a problem early before it gets more difficult to defend or respond to.  

Counterintelligence (CI) Polygraph Examination Considerations

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

We represent individuals who are scheduled for Counterintelligence (CI) polygraph examinations.  A CI Polygraph examination is the most common type of polygraph examination and is geared towards screening for issues associated with espionage, sabotage, terrorism, unauthorized disclosure of classified information, unauthorized contacts with foreign nationals and deliberate damage to or malicious misuse of a U.S. government or defense system. This type of examination is different than a Lifestyle Polygraph examination which covers more personal issues. 

Issues that are often times examined in more detail during CI Polygraph examinations. They include questions focused on espionage and on improper disclosures of classified documents. While all of the areas mentioned above are part of the process, these two areas tend to be a significant focus of the CI polygraph. The improper disclosure of documents tends to be one of the most significant areas of examination in recent years. 

How CI Polygraph Examinations are Conducted

CI Polygraph examinations are administered by professional polygraph examiners trained in their fields. These types of examinations generally take about 2 to 3 hours to complete in the normal process. If you are scheduled for a CI Polygraph examination, you can decline to take one, but it could have a negative effect on one’s ability to maintain or obtain their clearance. There are three phases to the CI Polygraph examination

Pre-Test Phase

These examinations generally begin with a pre-test phase which the polygraph examiner uses in prepared the individual for the examination.  During this phase, the individual will usually be explained about the history, rationale and legal issues associated with the polygraph examination, the nature of the questions that will be asked, and will go over pertinent concerns with the person that will be taking the polygraph. The polygraph examiner will also usually calibrate his/her equipment during this time. 

In-Test Phase

The in-test phase for a CI Polygraph examination is the portion of the exam where the polygrapher asks the individual the questions for the areas identified above.  Some examples of potential areas of questioning include the topics of espionage, disclosure of classified information, improper storage of documentation, engaging in terrorist activities and meeting with foreign agents or governments.  

Post-Test Phase

Following the in-test phase, the polygrapher moves to the post-testing phase where the
individual is questioned about any difficult areas that came up during the examination.  It is also during this stage that the polygrapher will form their opinion as to whether or not the examination has been successful.  Typically, in addition to the polygrapher in the room, there may be a supervisor observing the polygraph examination itself. 

Followup Polygraph Examination

If, after the CI Polygraph examination, an individual does not pass they can be brought back for additional examinations. Polygraph examinations are not always easy, but it is important to be honest in the polygraph examination process.  

Contact Us

When undergoing a CI Polygraph examination, depending on the issues involved, it may be important to have an attorney advise you. Our law firm advises and represents individuals on the issues surrounding a CI Polygraph examination as part of their security clearance evaluation.  We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. 

 

Security Clearance Holders Duty to Report Incidents

By John V. Berry, www.berrylegal.com

Security clearance holders who occupy and who have access to classified information are expected to self-report security changes or incidents that may impact their security clearances. Security Executive Agent Directive (SEAD) 4 is a good guide for clearance holders to determine whether a new incident or development triggers a duty to self-report. Self-reporting is mandatory. Furthermore, it is much better to be proactive in disclosing reportable events than for them to be discovered later. Disclosing these issues prior to them being discovered can be considered to be a mitigating factor should these issue become of concern to security clearance adjudicators.

The Department of Energy Security Clearance Process

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

The Department of Energy (DoE) and Nuclear Regulatory Commission (NRC) maintain their own security clearance process, as put into effect by the Atomic Energy Act of 1954. This security clearance process for DoE employees is similar to the clearance process for other federal employees and is run by the DoE Office of Hearings and Appeals.  

As we have indicated in other articles, the U.S. Government security clearance process is not centralized.  In addition to security clearances processed by the Department of Defense (DoD), which comprise most of the security clearances issued, many federal agencies have their own specialized procedures for processing security clearance cases. The DoE and NRC have their own process.  This article addresses the security clearance process at the DoE and NRC for federal employees and government contractors.

Different Terminology for Clearances

Most federal agencies use similar language when discussing clearance levels.  The most common terminology used to describe clearance levels is Confidential, Secret and Top Secret.  At the DoE this is different.  At DoE there are two types of security clearances, the L and the Q clearances. The L clearance is similar to a Confidential and Secret clearance and the E clearance is equivalent to a Top Secret (TS) security clearance.

The Clearance Process at DoE and NRC

The security clearance process at DoE and NRC is governed by 10 C.F.R. Part 710. The criteria for determining eligibility for security clearances at DoE dictates that the agency must undertake a careful review of all of the relevant facts and circumstances, and make a common-sense judgment after consideration of all relevant information. The following are the normal steps in the security clearance review process for DoE federal employees when security concerns arise.

Step 1: Security Concerns are Identified and Access is Potentially Suspended

The first step in the security clearance review process is for security concerns to be identified in connection with an individual holding a DoE clearance. The local director of security will review the security issues at issue and either they will be resolved positively or be moved forward as a potential security clearance action which could lead to access suspension.  

Step 2: Notice of Security Issues to Individual  

The first step in the security clearance adjudication process is for the individual to be notified of potential security concerns regarding their security clearance. The notice provided to an individual will state that reliable information in the possession of the DoE has created a substantial doubt concerning the individual's eligibility for access authorization. The individual can then ask that the matter be resolved by the Manager (Manager of a DOE Operations Office, etc) based on existing information or by seeking a personal appearance (hearing) before an administrative judge.  A request for hearing should be timely.  

Step 3: Hearing

If elected, the next step in a DoE security clearance case is for the individual to present their case before an administrative judge of the Defense Office of Hearings and Appeals (OHA).  During such a hearing, the individual has the right to be represented by counsel and to present documents, witnesses and other evidence in support of maintaining their security clearance.  The hearing will be transcribed and the administrative judge will issue a decision.  

Step 4: Appeal

If the administrative judge or Manager's decision is not in the individual's favor, the individual can then appeal the decision to the DoE Office of Hearings and Appeals, Appeal Panel.  The Appeal Panel consists of 3 members and reviews all appeals.  The Appeal Panel will make a decision on the appeal and the individual will be notified.  If a final negative decision has been issued, the individual may subsequently apply for reconsideration at a later date.  

Contact Us

When an individual is facing security clearance issues at DoE, NRC or before another agency it is important to obtain legal advice and potential representation.  Our law firm advises individuals in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. 

 

 

Security Clearance Law and Family Law: How They Intersect

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

There is a major intersection between family law and security clearance law issues which can arise where one of the spouses is a security clearance holder. It is important understand how they connect. This article talks briefly about this intersection and some of the issues associated with these connections. The major issues that often arises between individuals holding security clearances in the context of family law usually has to do with divorce, custody and domestic violence issues. I will take each of these in turn in this article. 

Family Issues Which Can Relate to Security Clearance Issues

When dealing with family law issues, a family lawyer and/or cleared individuals involved in the underlying family issues should consult with counsel familiar with security clearance law. Generally, we find that security clearance issues come up in the context of family law in the following types of situations:

1. Divorce: Divorces between spouses holding security clearance or with one spouse that holds a security clearance can present unique problems. Obviously, divorces include very difficult family and emotional issues and can cause both spouses to occasionally go to war with one another. The problem with doing so is that a bad divorce can cause one, and sometimes both spouses to lose their security clearance.  When this occurs, it is not uncommon for both spouses to be laid off or terminated from employment.  It is important to avoid contentious family law litigation.
2. Custody Issues: Along the lines of divorce, custody issues tend to be one of the most problematic areas where security clearance issues can arise. Even an allegation that is lodged against another spouse for purposes of gaining an advantage during custody proceedings can affect a security clearance. For example, suppose that a spouse alleges that the other spouse left a child in a dangerous situation. Regardless of the outline of the custody litigation, the matter can be reviewed and considered into the context of whether an individual can keep their security clearance. 
3. Domestic Violence Claims: Along the lines of Divorce, other family or relationship issues can arise in the context of a security clearance. We often see cases where another individual has been issued a Temporary Protective Order (TPO) related to alleged domestic violence. Just the filing of such an order can potentially affect an individual’s security clearance.

Practical Considerations for Family Law Issues and Security Clearances

The following are some times to consider when clearance holders or applications are going through clearance issues. 

1. Consider Family Income: If the goal of a divorce or other family matter is to leave the family in a sound financial status, work with your family law attorney to consider how a filing can effect another spouse’s security clearance (if they hold one). For instance, some family law practitioners can be aggressive and try to paint the other spouse in as bad a light as possible. While this can help in family court, another problem may arise. A clearance holder spouse, if they are the primary earner for the family, can lose their income if serious allegations come to light. As a result it is critical to consider this issue with respect to spousal and child support issues.  A family law lawyer can prevail in a divorce against the primary breadwinner, only to find out that the individual has lost their clearance and job as a result and therefore cannot provide financial support. 
2. Situations Where Both Spouses Hold Clearances: In the Washington, D.C. area, it is not uncommon for both spouses to hold security clearances. We have seen an aggressive action in divorce cases by one spouse lead to a similar response by another spouse.  In such situations, we have seen results were both spouses have lost their security clearances (or they were suspended) and were then terminated. As a result, the parties divorced, but had no income or employment because of the actions taken in the family law courts. It is critical to attempt to avoid such issues. 
3. Work Cooperatively with Soon to be Ex-Spouse: Where security clearances are involved and there are family financial support requirements, it is very important to make a divorce or other family dispute as civil and professional as possible. The alternative can have major ramifications to the family income and child support when it impacts a security clearance. While divorce can be a very emotional and draining issue that spouses face, it is important to separate while still maintaining each parties’ ability to support their family. 

Contact Us

When an individual is facing security clearance issues before a federal agency which also involves a family law component (divorce, etc), it is important to obtain legal advice and potential legal representation in both areas of law.  Our law firm advises individuals and family law lawyers in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.