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.
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. Our Facebook page is located at http://facebook.com/BerryBerryPllc