By John V. Berry, Esq., www.berrylegal.com
As we have noted in other articles, the U.S. Government security clearance process is not run by one agency. Each federal agency maintains their own procedures and personnel for processing their own security clearance decisions for federal employees (e.g. Treasury, Commerce, DoD, DoE, NRO, DOJ, etc). The DoS is one of those agencies. This article addresses the security clearance process at the DoS for federal employees and applicants.
The Clearance Process at DoS
The security clearance process at the DoS is somewhat similar to the procedures for Department of Defense employees, but there are some differences. The following are the normal steps in the security clearance review process for DoS clearance holders when they are facing security clearance issues. The DoS security clearance process is managed by the DoS Office of Personnel Security and Suitability (PSS). It is important to note that employees have the right to counsel before DoS at all stages of the clearance process. The Personnel Security process is governed by 12 FAM 230, Personnel Security.
Step 1: Notification Letter
When a federal employee or applicant has a security clearance issue with DoS, they will receive a notification letter from the Director of the Diplomatic Security Service/PSS, listing the security concerns at issue in granting or continuing the clearance and other rights in a Memorandum. These rights generally include the ability to obtain any documents (investigative file) upon which the revocation or denial is based within 10 days. Upon receipt of the information from DoS, the individual generally has 30 days in which to provide a written reply. In this reply, the individual will be given an opportunity in which to respond to the security concerns in an effort to mitigate them. DoS follows the Adjudicative Guidelines when reviewing security clearance matters, so it is important to be knowledgeable about them.
Step 2: Responding to the Notification Letter/Memorandum
Following a review of the investigative file, at this stage, the individual responds to the Notification Letter and all of the materials in the investigative file from DoS. A response should address the security concerns at issue directly, e.g. Guideline F, Financial Considerations, or other issues and focus on the potential mitigation of the security concerns. This response should be comprehensive and cover both the security concerns, mitigation and the whole-person concept. It is critical to provide a full and fully-documented response.
Step 3: Decision by Assistant Secretary for Diplomatic Security
Once the response by the individual is received, DoS Assistant Secretary for Diplomatic Security will review the Director's decision, the file and also the individual’s reply and will issue a decision as to whether or not the security concerns have been resolved. If so, the matter is then resolved favorably for the federal employee. If not, the individual will have an opportunity to further appeal the denial or revocation.
Step 4: Review by DoS Security Appeals Panel
The next step in the DoS security clearance process is for the employee to appeal to the DoS Security Appeals Panel within 30 days of the adverse decision in Step 3. Generally, the individual has 2 weeks prior to the Security Appeals Panel’s meeting to submit additional documents the they want included in the review. The individual can, and is recommended to exercise his/her right for an in person appeal before the panel. This should be done with the assistance of counsel. These types of presentations typically take between 45 minutes to an hour. The Security Appeals Panel can ask for additional information from an individual if it feels it needs additional information in order to make an informed decision.
Step 5: DoS Appeals Panel Decision
Following the personal appearance, the DoS Security Appeals Panel issues a decision, either granting the clearance or access at issue or a denial. The decision is final, but the individual may re-apply after a waiting period.
When an individual is facing security clearance issues at the DoS or in another federal 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 here.