Security Clearance Law Blog

The Security Clearance Appeal Process

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

The security clearance appeal process seems to be constantly changing as laws and regulations are updated in response to current events.  News events, like the Edward Snowden matter and others have caused additional scrutiny on the security clearance process itself and no doubt will be the cause of additional changes to the security clearance appeal process in the future.  Our law firm practices security clearance law and this article provides an update on the security clearance appeals process for federal employees and government contractors. 

Following a security clearance denial there are a number of appellate options for federal employee and government contractors.  The security clearance process generally unfolds as follows:

The Statement of Reasons (SOR)

The Statement of Reasons (SOR) is the centerpiece of any security clearance case.  The allegations contained within the SOR will be the start of any legal defense to the issues raised.  When we meet with potential clients who have been issued an SOR we first go over the allegations in depth, find out whether any or all of the allegations are true and whether there are any mitigating factors to the security concerns.  A high level of detail is needed at this point in order to fully respond to the SOR.  Following the SOR, the process moves to the response and appeals stage, depending on where an individual is employed.

Clearance Appeals Process for Federal Employees

For federal employees, the SOR is the start of the clearance review process.  Generally, the next step, depending on the individual federal agency involved is for the individual to respond to the SOR through the individual agency and the Department of Defense Central Adjudication Facility (DoDCAF) (other federal agencies like CIA, NGA, DOE, etc. have their own separate appeals processes). 

Generally, a federal employee will respond to a Letter of Intent to Deny a Security Clearance (LOI), which is attached to the SOR.  The federal employee then has the opportunity to rebut the allegations in the SOR to a security clearance adjudicator in writing.  If the adjudicator agrees with the federal employee’s written response the matter is then resolved and the person is granted their security clearance.  If not, the next stage is for the federal employee to appeal the adverse decision.

A federal employee’s appeal of an adverse decision by DoDCAF is completed either by requesting a decision from their agency’s personnel security appeals board (PSAB) or by requesting the appointment of an administrative judge (and a hearing) from the Defense Office of Hearings and Appeals (DOHA).  As we recommend for government contractors, we also generally recommend that a federal employee appeal an adverse clearance decision from DoDCAF to DOHA first.  The DOHA administrative judge will then hold a hearing, permit an individual to present evidence and examine witnesses and will then issue a recommended decision which will then go to the PSAB for consideration.  The PSAB, generally consisting of 3 members, will then vote on whether or not to grant the security clearance.  Generally, it is better to have a full record before the PSAB in order to provide the best chance of success. 

Clearance Appeals Process for Government Contractors

For government contractors, the process of rebutting an SOR is a bit different.  A government contractor will generally have the option of responding to the SOR in writing or through a personal appearance before an administrative judge at the DOHA.  We generally advise government contractors that the best approach to such appeals is to request a hearing before an administrative judge.  We have found in many cases that live testimony can potentially make the difference between obtaining or not obtaining a positive result regarding their security clearance.

If a written appeal (no hearing) is made, then DoDCAF will send the applicant a File of Relevant Material (FORM) which will contain the evidence against them in obtaining a clearance and they will then have the opportunity to respond in writing to the FORM.  However, if one elects an administrative judge and hearing, there will be the opportunity to present all of an individual’s evidence in support of maintaining or obtaining one’s clearance and to fully examine witnesses to attempt to mitigate existing security concerns.  If the hearing goes forward, the administrative judge will then review the evidence presented and will then issue a decision.  If no response is elected or made, the contractor’s security clearance will be denied. 

If an adverse clearance decision is made, either in response to the written record or by an administrative judge, then the individual will have the opportunity to appeal the decision to the DOHA Appeal Board.  Following the ruling by DOHA or the DOHA Appeal Board, the decision is generally final and not subject to further appeal.  Following the DOHA decision, the contractor’s employer is notified of the decision about the security clearance and the procedures for later attempting to obtain a security clearance are provided.   

Conclusion

When facing a security clearance appeal it is important to obtain legal representation in order to provide the best opportunity to maintain or obtain an individual’s security clearance.  Our law firm stands ready to represent and advise individuals on appeals issues in the security clearance process.  We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. 

Bankruptcy for Security Clearance Holders in 2013

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

A number of issues can arise in the context of bankruptcy proceedings for federal employees or government contractors holding security clearances.  We have a number of clients that consult with our Firm regarding the effect of filing for bankruptcy in the context of holding a security clearance.  Given the current government shutdown, there is the possibility that some clearance holders who have had previous financial difficulties (or may have been on the edge of financial difficulties before the shutdown) may be pushed into bankruptcy proceedings. The most important legal advice that we can offer these clients is that they should consult with legal counsel early, prior to engaging in the bankruptcy process, in order to develop a strategy for responding to security clearance issues that will arise.  

Strategies for Dealing with Bankruptcy for the Clearance Holder

Typically, filing for bankruptcy would raise 2 possible concerns under the Adjudicative Guidelines which govern security clearances.  The first and most obvious is Guideline F, Financial Considerations.  To a lesser extent, there is the possibility that a bankruptcy could raise issues under Guideline E, Personal Conduct.  This, however, is less likely. 

First of all, it is important that any bankruptcy be reported to one’s security officer promptly.  Not doing so could cause the clearance holder to run into more significant issues later on relating to the failure to report these issues.  Second, it is critically important that the individual establish a detailed (and written) record of responsibly dealing with the financial issues related to their pending or concluded bankruptcy (e.g. credit counseling, financial advisor assistance). 

In these types of cases, it is important to show that the individual has continued to work with creditors (even if the creditor is non-responsive).  For this purpose, it is important to keep copies of letters that one drafts to creditors attempting to resolve any outstanding debts.  It is also important to point out any ways in which the bankruptcy was caused by unique circumstances that are unlikely to be repeated.  Most important, in the security clearance context, it is important to show that the clearance holder has established a sound game plan so that the financial issues involved in a bankruptcy are unlikely to be repeated. 

Recent (2013) DOHA Cases Involving Bankruptcy Issues and Mitigation

A few recent 2013 cases from the Defense Office of Hearings and Appeals (DOHA) illustrate some important considerations in dealing with bankruptcy in the context of holding a security clearance. 

ISCR Case No. 11-14680 (Aug. 20, 2013) was a security clearance appeal in which the clearance holder was granted a security clearance.  The clearance holder had no financial difficulties until 2007 when his home went into foreclosure and he filed for bankruptcy. DOHA concluded that the clearance holder acted responsibly in attempting to resolve his financial difficulties, specifically, that he attempted to work with the bank holding his mortgage, had worked 2 jobs to meet expenses, engaged in credit counseling and showed evidence of reducing his living expenses. 

ISCR Case No. 11-09731 (Sept. 9, 2013) involved a security clearance holder that was shown to have a history of overdue debts, due to periods of medical leave without compensation, and a split from her significant other.  The clearance holder was also found to have been involved in gambling, which was not resolved. Her debts were not resolved in a Chapter 7 bankruptcy but DOHA found that mitigation had not been shown and denied the security clearance. 

ISCR Case No. 11-13879 (Sept. 17, 2013) involved a security clearance holder that filed for bankruptcy principally relating to owning 2 rental properties which became financially difficult to maintain in light of the financial downturn in the economy and in real estate values between 2007-2011. The clearance holder argued, and DOHA agreed, that the downturn in the economy was profound and warranted the application of mitigation.  The security clearance in this case was granted. 

Conclusion

When holding a security clearance it is important to obtain the advice of counsel where bankruptcy proceedings are anticipated. Our law firm stands ready to advise individuals regarding their security clearance in light of these difficult financial issues. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070 to schedule a consultation or meeting to discuss these issues.  

Seeking Information About JPAS Security Incident Reports

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

It is often our experience that government contractors (and federal employees) can have difficulty in resolving JPAS Incident Reports placed on their government security clearance record by a current employer, former employer or other entity.  There are a variety of reasons why these issues arise, but the reality is that government contractors and federal employees need to take action when they become aware of an existing Incident Report in the Joint Personnel Adjudication System (JPAS).  As most individuals that hold a security clearance are aware, JPAS is a computerized database maintained by the Department of Defense (DOD) which processes and evaluates eligibility for security clearance and access.  JPAS maintains Incident Reports which contain alleged security concerns that must be resolved for continued access to classified information.    

Seeking Information from OPM / DOD

It is often the case that an individual first becomes aware of an Incident Report when they apply for a government contractor position (they also find out in a number of other ways). They are told of an issue by their new employer, which must be resolved for them to transfer their security clearance and keep the new position.   Most of the time, an individual, however, does not have information specifying the specific security concern that is the problem.  As a result, the first step that is recommended for contractors and federal employees is to request a copy of all documents related to the security clearance process from the government in order to determine the extent of the existing security concern. 

By doing so, an individual may uncover errors in the information that is maintained in JPAS or the security concerns at issue that are listed in the Incident Report.  Typically, to obtain this information, we may file a joint Privacy Act and Freedom of Information Act (FOIA) request on behalf of our individual clients.  In these requests, we typically seek copies of an employee’s prior background investigations, investigator summaries, and existing incident reports in addition to other information.  The requests have to be formatted properly before the Office of Personnel Management (OPM), on behalf of the DOD, will respond.

What Type of Information is Generally Provided by OPM / DOD

The amount and type of information provided in response to a Privacy Act or FOIA request will vary depending on how it is written.  Typically, the information provided within a JPAS Incident Report can be very helpful to understanding the nature of existing security concerns.  A JPAS Incident Report summary will provide the incident date, the receiving CAF and the CAF date of receipt, in addition to the incident criteria (the general security concern categories, e.g. personal conduct, foreign influence). 

The Incident Report will also provide an unclassified description of the security issue and basis for the action.  Generally, the description will include a synopsis of the security issue and is usually the most important piece of information that can be provided.  In addition to the Incident Report, other information may be provided in response to the Privacy Act request, to include a Person, Investigative and Adjudicative Summary report.   Contained in this type of information request response will also likely be a Message History report which itemizes the actions taken regarding the adjudication of the individual’s security clearance by the government. These documents and information can be helpful to determine progress regarding a security investigation and when issues have been raised and adjudicated.  

Conclusion

When facing an existing Incident Report it is important to obtain the advice of counsel in evaluating your legal options. There are a number of steps that need to be taken in order to begin the process of attempting to uncover the basis for an Incident Report and to attempt to begin to resolve the issues raised. Our law firm stands ready to advise individuals on these types of security clearance issues. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. 

Security Clearance Investigations Subject to Increased Scrutiny

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

In the wake of the Edward Snowden and Aaron Alexis security clearance issues, the contractors hired by the Department of Defense (DoD) and the Office of Personnel Management (OPM) are likely to increase scrutiny on pending security clearance applications.  Items that might have escaped scrutiny on security clearance applications just a few months ago may now lead to further investigation and possibly further adjudication before security clearance adjudicators (reviewers). 

Given the questions involving how and why Snowden and Alexis maintained their security clearances, the President has placed increased scrutiny on the security clearance process.  This kind of pressure has resulted in increased pressure by OPM on contractors that have been hired to conduct these investigations.  Furthermore, Congressional and criminal authorities have also started to review previous improprieties in contractor-based security clearance investigations adding to such pressures.   

In our practice, we represent federal employees and government contractors in their security clearance matters and have been noticing this additional scrutiny in the processing of e-QIP and SF-86 security clearance applications.  Relatively speaking, we have been noticing that more thorough background examinations seem to be occurring. Items in a background checks that might have gone unnoticed in the past, now may provoke additional questions as investigators appear to be under pressure for more thorough reviews. It is hard to say right now how long the additional scrutiny of security clearance applications may last, but it is likely to be the new norm for the foreseeable future.

When facing security clearance issues it is important to obtain the advice of counsel where potential issues might arise. An individual will want to obtain legal advice if there is reason for concern regarding a pending security clearance application. Our law firm stands ready to advise individuals on the issues involving security clearances. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.