Security Clearance Law Blog

Updated: Top Reasons Why Security Clearances Get Denied 2016

By John V. Berry, www.berrylegal.com

This article has been updated to provide the most common reasons that a security clearance might be denied in the reported government contractor decisions to date.  The information, taken from January 1, 2016 to the present (end of April, 2016), comes from the Department of Defense (DOD), Defense Office Of Hearings and Appeals (DOHA) decisions.  These are available online.  Our last article on the subject contained only about 40 decisions.  The DOHA caselaw database has since been significantly updated, providing far more decisions to include in this type of analysis.  

Security Clearance Guidelines

Keep in mind that reported DOHA decisions generally cover clearance appeals from DOD contractor employees, but the information provides a good insight into the most common reasons that an individual may have security clearance issues arise. There are several reasons why security clearances can be potentially denied, which generally fall under 13 separate categories known as the Adjudicative Guidelines. The federal government uses these 13 adjudicative guidelines to determine whether federal employees and contractors should be eligible for a security clearance to gain or maintain access to classified information. These guidelines include:

Guideline A: Allegiance to the United States

Guideline B: Foreign Influence

Guideline C: Foreign Preference

Guideline D: Sexual Behavior

Guideline E: Personal Conduct

Guideline F: Financial Considerations

Guideline G: Alcohol Consumption

Guideline H: Drug Involvement

Guideline I: Psychological Conditions

Guideline J: Criminal Conduct

Guideline K: Handling Protected Information

Guideline L: Outside Activities

Guideline M: Use of Information Technology Systems

Based on the 273 decisions issued by the Department of Defense (DoD), Defense Office of Hearings and Appeals (DOHA) from  January 1, 2016 to the end of April, 2016, by far the most common reason why a security clearance has been denied is based on Guideline F, Financial considerations. Financial consideration issues usually arise when an applicant for a security clearance has too many outstanding or delinquent debts, is facing bankruptcy, has credit report problems, or has unaddressed tax liens. The second most common reason why a security clearance has been denied in 2016 so far has been based on Guideline E, Personal Conduct. Personal conduct issues can involve a broad range of misconduct, such as information regarding an individual’s prior termination, arrest, or domestic incident, truthfulness in completing security clearance forms, or basically any other type of general wrongdoing, criminal, or otherwise.

The third most common security issue in 2016 where an individual might face a denial of a security clearance involves Guideline B, Foreign Influence.  Foreign Influence issues can involve applicants whose family has ties to another government, country or an applicant who maintains dual citizenship, among other concerns. The fourth most common reason why a security clearance has been denied in 2016 is based on Guideline H, Drug Involvement. Drug involvement or abuse is considered to be the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction (e.g., overuse of prescription pain medication).

Of the 273 cases reported thus far in 2016, the issues that have raised security concerns are as follows (in cases):

1. Financial Considerations: 205
2. Personal Conduct: 60
3. Foreign Influence: 18
4. Drug Involvement/Usage: 17
5. Criminal Conduct: 15
6. Alcohol Consumption:14
7. Foreign Preference: 8
8. Handling Protected Information: 3
9. Sexual Behavior: 3
10. Psychological Concerns: 2
11. Use of Information Technology: 2

Conclusion

It is important to note that the reported DOHA decisions generally cover security clearance appeals from DoD contractor employees, but the decisions provide good insight into common reasons why the federal government denies security clearances. When an individual is engaged in the security clearance hearing or personal appearance process, it is important to have legal representation. Our law firm represents 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.

Social Media Information to be Used in Security Clearance Reviews

By John V. Berry, www.berrylegal.com

Under new legislation passed by Congress in December, 2015, federal agencies will begin focusing on social media information as part of the security clearance review process.  The new provisions were placed in a 2016 Omnibus appropriations bill (see Chapter 110—Enhanced Personnel Security Programs) by Congress.  Essentially, the new law adds these new requirements and also establishes a more intensive personnel security clearance program for federal agencies.

Social Media Information Sought

One of the key provisions in the new legislation requires that clearance adjudicators consider social media as part of the security clearance process.  The legislation does not specify how federal agencies should use, gather, and/or evaluate social media data that they obtain from clearance holders.  These rules will be forthcoming in the future.  The new provisions are likely in response to cases in the media where issues that could have been identified through social media might have led to suspended security clearances had authorities been aware of this information.  The new provisions may lead cleared employees to be more careful with the information that they post on social media websites such as Facebook, Twitter or Instagram.

Other Provisions of the New Security Clearance Law

The new law also requires that federal agencies establish plans for investigation of existing security clearance holders at least twice within a 5-year period.  Not many details were provided by Congress in the legislation regarding these additional checks, but it is expected that federal agencies will conduct automated or random checks of a clearance holder within this timeframe. The rules will likely be set for this process in the coming months by the Director of National Intelligence. The goal of the new legislation seems to be in moving to a more continuing process of evaluating eligibility for security clearances. 

The new legislation also requires that agencies seek more information regarding clearance holders, including from other public sources such as commercial and consumer reporting databases.  These new sources can include, but not be limited to, criminal, credit, and/or financial, watch lists and civil legal records.  The new law requires implementation of these changes to the security clearance process within the next five years.

Conclusion

When an individual is engaged in the security clearance process, it is important to have legal representation. Our law firm represents 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 https://www.facebook.com/BerryBerryPllc.

Using Exhibits in Security Clearance Hearings

By John V. Berry, www.berrylegal.com

We are often asked by federal employees and government contractors about the use of exhibits in security clearance proceedings. Because each federal agency generally has their own internal security clearance process, the use and availability of exhibits is not standard in all federal agencies. That said, the use of exhibits in security clearance proceedings is generally similar throughout the different federal agencies. The use of exhibits to support a security clearance appeal is highly recommended in most cases.

Reasons to Present Exhibits During Clearance Hearing

A security clearance hearing or personal appearance centers on specific security concerns. The record that has already been established has been reviewed and without any additional information will likely result in a clearance denial. As a result, it is very important to present documents as exhibits which refute or explain the security concerns at issue and for mitigation purposes. For instance, if the security concern at issue involves an arrest, then a copy of full arrest records would potentially be important to obtain and introduce. Or, if mitigation is needed, then it might be important to obtain letters, declarations or affidavits in support of the individual’s character.

There are many reasons why exhibits are important in a security clearance case. The prehearing guidance typically given regarding the use of exhibits before the Defense Office of Hearings and Appeals (DOHA), is as follows:  

"The parties have a wide degree of discretion in deciding what order to present the evidence in their respective cases. The Federal Rules of Evidence are used as a guide. The parties should not mark any proposed exhibits. At the hearing, the Administrative Judge will mark the exhibits. Exhibits offered as evidence, but not admitted as such, will be retained by the Administrative Judge. As a general rule, photocopies of documents may be offered in lieu of the original, provided that the copies are legible. In the case of public records or business records, it is not required that the copies being offered be certified copies. However, nothing in this paragraph relieves a party from the responsibility of laying a proper foundation for a document when necessary. It is generally good practice to make sufficient photocopies of each proposed exhibit so that separate complete copies can be offered to the Administrative Judge and the opposing party. Preparation of such additional copies should take place before the scheduled hearing date, because there may not be any photocopying facilities available at the hearing location."

DOHA Prehearing Guidance Memorandum.  Most federal agencies have a less formal exhibit admission process than DOHA.  

Examples of Exhibits for Security Clearance Hearings

There are many different types of exhibits that can be used in a security clearance hearing or personal appearance which can go towards the merits of a security concern or towards mitigation. Just a few examples of potential exhibits can include:

1. Financial Considerations cases: Documents showing how any debt in question has been resolved, records of assets, salary, improving or good credit and other means showing that the individual is not subject to potential coercion based on finances.

2. Personal Conduct cases: Documents showing that an individual’s behavior has changed, declarations from individuals that demonstrate that the individual has good character, honesty or a good work record.

3. Illegal Drug use cases: Documents showing that the individual no longer uses drugs, medical documentation showing any recovery from addiction issues or underlying reasons for the illegal drug use, statements or declarations from other individuals showing that the individual has changed their lifestyle.

4. Psychological Concern cases: Documents of mental health treatment, records or expert reports on the stability and diagnosis of any mental health concerns.

5. Foreign Influence cases: Statements and records showing an individual’s loyalty to the United States and lack of association to a foreign country.

How Exhibits are Presented

Depending on the type of security clearance proceeding and federal agency involved exhibits are presented differently. For instance, if the individual’s matter is before DOHA or the Department of Energy then normally the exhibits are provided to the government attorney ahead of time and admitted or not admitted during the start of the proceedings by an administrative judge. If a security clearance matter is before a different federal agency, then they generally have a more informal procedure where you either provide exhibits ahead of time or during a personal appearance. Generally, in such proceedings, there are no significant objections to exhibits.

Conclusion

When an individual is engaged in the security clearance hearing or personal appearance process, it is important to have legal representation. Our law firm represents 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 https://www.facebook.com/BerryBerryPllc.

 

Using Witnesses in Security Clearance Hearings

By John V. Berry, www.berrylegal.com

We are often asked by federal employees and government contractors about the use of witnesses in security clearance proceedings. Because each federal agency generally has their own internal security clearance adjudication process, the use and availability of witnesses is not uniform through all federal agencies.  However, where applicable, the use of witnesses to support a security clearance appeal is recommended.  Many federal agencies permit witnesses at hearing or during personal appearances. 

Reasons to Have Witnesses

Typically, a security clearance hearing or personal appearance centers on the testimony of the clearance holder.  This is obviously the most important testimony that will be taken at the hearing or personal appearance.  However, there can be situations where it can be very helpful to have other witnesses testify.  There is also a balance that needs to be struck as to the number of witnesses to be called. For example, at a typical hearing before the Defense Office of Hearings and Appeals (DOHA), the usual number of witnesses we traditionally call ranges from 2 to 4.  It is important not to attempt to bring too many witnesses to a hearing if their testimony is duplicative.  If this occurs, the judge may be less inclined to hear all of them, or may attempt to eliminate testimony that is not relevant.  

The guidance typically given for the use of witnesses before DOHA, which is typical of the process used by many federal agencies is as follows:

“Each party is expected to be prepared to present at the hearing whatever evidence (testimonial or documentary, or both) that party intends to offer. In this regard, it should be noted that the Administrative Judge is not empowered by law to issue a subpoena. Thus, the appearance of witnesses or production of documents is purely voluntary, and is the sole responsibility oft he person intending to offer that evidence. The costs associated with the attendance of witnesses is also the sole responsibility of the party calling that witness. . . .

Witnesses will be sequestered (kept out of the hearing room while other witnesses are testifying) during the hearing, with the exception of the Applicant and any expert witnesses. The parties may have the assistance of any expert witness, selected and paid for by the party wishing to call the witness, during the course of the hearing. . . .

All witnesses are subject to cross-examination, or questioning, by the other party. The scope of cross-examination is not limited to the scope of the witness's direct examination. However, any cross-examination must cover issues that are material and relevant to the issues in the case or the witness's credibility. As a general rule, the parties will be allowed an opportunity to conduct one redirect examination and one recross-examination of a witness. The Administrative Judge may, in his or her discretion, question any witness."

Prehearing Guidance for DOHA Industrial Security Clearance Cases

Types of Witnesses for Security Clearance Hearings

There are generally 3 types of witnesses for use in a security clearance hearing or personal appearance.  The first type is a witness familiar with the underlying facts of one of the security concerns. Obviously, if there is a witness available that can support a clearance holder’s version of events, it is important to attempt to bring them to the hearing or personal appearance.  For example, suppose a security concern involves the allegation that the individual had been previously fired from his former employer and had not disclosed the information on the SF-86.  If a clearance holder is able to call his former supervisor to dispute this allegation it can go a long way towards mitigating the security concern.

The second and more common type of witness is the character witness.  These types of witnesses can be used for different purposes. Typically, in these types of clearance hearings it is important to call supervisors who may have had the opportunity to observe the clearance holder or applicant perform work in the past.  Supervisors can testify (among other areas) as to an individual’s loyalty, ability to follow rules, work performance or ability to manage classified information.  Other witnesses who have known the clearance holder or applicant for a long period of time, who can testify as to their character can be helpful as well.  For instance, a longtime friend that has known the clearance holder or applicant a long time might be able to testify to their character (whole person concept), background or other potential mitigating information.  For example, we have called former military colleagues of a clearance holder to testify about the individual's loyalty and ability to maintain classified information.

Third, an individual may decide to call an expert witness.  An expert witness can be useful, for instance, if there is a medical concern.  For example, there could a security concern involving a psychological condition that an expert witness (like a highly qualified medical expert) could address to support the clearance holder’s position that his medical condition does not disqualify him or her from holding a security clearance.    

Conclusion

When an individual is engaged in the security clearance hearing or personal appearance process, it is important to have legal representation. Our law firm represents 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 https://www.facebook.com/BerryBerryPllc.

 

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.  

Conclusion

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

 

 

Security Clearances: The Duty to Self-Report Security Concerns

By John V. Berry, www.berrylegal.com

We are often asked by federal employees and government contractors about their duty to self-report security concerns when holding a security clearance.  Here are some things to consider when evaluating when and what to report.  In general, federal employees and government contractors holding a security clearance have a duty to self-report serious security concerns in a timely manner.  This duty to self-report tends to be pretty broad.  

The Duty to Report Security Concerns

Not reporting a security concerns can lead to a loss of a security clearance. As provided in guidance from an administrative judge at the Defense Office of Hearings and Appeals (DOHA), in ISCR Case No 01-26137 (2001), the concept of self-reporting is explained: 

“[I]t is the responsibility of security clearance holders to report events which negatively affect the status of the security clearance holder or the facility. As a general rule, any information under the National Industrial Program Operating Manual (NISPOM) that reflects adversely on the integrity or character of a security clearance holder, should be reported to security personnel to avoid compromising situations that make the security clearance holder vulnerable to coercion, exploitation, or duress.”

Id. at 1 (denying security clearance where clearance holder failed to self-report an arrest for driving under the influence until a year after the incident).  Furthermore, Department of Defense (DoD) Directive 5200.2-R, C9.1.4 (page 81) further spells out the responsibility of individuals holding security clearances to self-report security concerns.  DoD 5200.2-R, C9.1.4 provides that “individuals having access to classified information must report promptly to their security office . . . Any information of the type referred to in paragraph C2.2.1. or Appendix 8).  Appendix 8 contains the Adjudicative Guidelines.  The Adjudicative Guidelines are just the potential security concerns that can trigger a duty to report (e.g. foreign influence, psychological conditions, financial considerations, personal conduct). In sum, the duty to report is pretty broad.   

What is a Security Concern?

A security concern is an incident or potential incident that occurs which bears on one of these Adjudicative Guidelines for holding a security clearance. These apply to both government contractors and federal employees. Four (of many possible) examples follow of security concerns that should potentially trigger the duty to report.  

Ex. 1 - A clearance holder is arrested for theft by the police.  Criminal conduct falls under the Adjudicative Guidelines.  Once the individual is arrested, he or she should report the incident as soon as possible to his or her security officer or supervisor.  Alleged criminal conduct should be reported as early as possible.  One common mistake is to wait until the trial occurs to self-report.  

Ex. 2 - A clearance holder files for bankruptcy.  Because filing for bankruptcy bears on financial considerations under the Adjudicative Guidelines, the individual should report the filing as soon as possible to his or her security officer or supervisor.

Ex. 3 - A clearance holder marries a foreign citizen.  Because marrying a foreign citizen can bear on foreign influence and many other types of issues in the Adjudicative Guidelines, he or she should report the marriage as soon as possible to his or her security officer of supervisor.   

Ex. 4 - A clearance holder has become addicted to pain medications.  He or she has subsequently checked into a treatment facility for this addiction.  Because this bears on psychological fitness in the Adjudicative Guidelines, he or she should report the medical concern to his or her security officer or supervisor.

Each federal agency has similar but slightly different rules for self-reporting security concerns. Some federal agencies do not provide specific guidance. When in doubt it is usually advised that the federal employee or government contractor report the security concern given the significant risks of losing their security clearance for not doing so. We have seen a number of cases where individuals have been proposed for the loss of their security clearance for not promptly reporting security concerns.  

When to Report a Security Concern?

When a federal employee or government contractor who holds a security clearance determines that a security concern requires self-reporting, it is important to do so as soon as possible. The typical procedure for doing so is to notify one’s supervisor and/or their security manager of the security concern.  Even if details of a security concern are not yet fully complete, i.e. an arrest for possession of drugs, assault, DUI, etc. has occurred, but there has not yet been a trial, it is critical to report even the allegation as soon as possible.  Waiting until a trial has occurred to see if guilt is established, prior to reporting, can still be viewed as a security violation for delayed reporting.  

Additionally, the fact that a clearance holder has self-reported a security concern promptly can later often be used as a mitigating factor should the agency pursue a proposal to revoke one's security clearance.

What to Report?

Each type of security concern is different and there may be concerns over what to report.  The individual might also feel embarrassed to self-report.  If a federal employee or government contractor have questions about what should be reported, they should seek counsel for legal advice.  These employees may also speak to their security manager or supervisor.  For federal employees we often find that many supervisors are unaware of how security concerns should be reported and have to seek advice from within their agency (usually through security or human resources).  Enough information should be reported by the employee so that the security concern is fully explained.  For example, if an arrest has occurred, it may be important to provide a copy of the arrest, citation or other documentation. The agency will then expect the individual to provide updates as the matter is resolved.   

Further, the employee that self-reports a security concern should be as honest and straightforward as possible in providing the information.  Reporting a security concern inaccurately can lead to an allegation of dishonest conduct which can cause even more significant security concerns than the failure to self-report.  

Conclusion

When an individual is seeking advice about reporting a potential security concern to their security officer or manager, it is important to obtain legal advice.  Doing so can provide needed guidance that can be very helpful at the early stages of a security clearance inquiry.  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 https://www.facebook.com/BerryBerryPllc.

Security Clearances in Scattered Castles

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

We often receive questions from employees about the different security clearance administrative systems in place by the federal government to evaluate clearance holders and the status of their security clearances.  There is more than one database that contains this type of information.  The principal 2 databases include the Joint Personnel Adjudication System (JPAS) and Scattered Castles. JPAS is clearly the more well known security clearance database, but both are significant.  These databases are used to evaluate potential employees, reciprocity (where available) and security access/certifications.  

Summary of Scattered Castles

Personnel who have access to Sensitive Compartmented Information (SCI) are listed in Scattered Castles.  Scattered Castles, however, is not linked to OPM's Central Verification System (CVS) because of intelligence community concerns about protecting classified information (i.e. the need to protect covert employees).  Scattered Castles, like JPAS, is a government database used by the intelligence community (CIA, NRO, etc) to record eligibility and access to classified information.  Basically, the database serves as the gatekeeper to the hiring / transfer process for intelligence community employees and contractors.  

Intelligence Community Policy Guidance, ICPG 704.5 (Oct. 2, 2008) governs the use of the Scattered Castles system.  ICPG 704.5 mandates the recognition, use and reciprocity of the Scattered Castles Database across all components of the intelligence community. See ICPG 704.5. The 3 page directive specifies the requirements of the Scattered Castles Database. The Scattered Castles database provides intelligence community agencies a combined database of individuals’ security clearance and accesses and essentially performs the same functions as the JPAS does for the Department of Defense.  While security clearances can be reciprocal through these different systems there can potentially be some difficulties in finding individuals through both databases and verifying their respective eligibilities.  In short, there can sometimes be communications difficulties between the two systems.  

Conclusion

When an individual is facing security clearance issues through Scattered Castles or JPAS, 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

The DHS Security Clearance Process

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

The U.S. Government security clearance process is not centralized.  In addition to security clearances processed by the Department of Defense (DOD), many federal agencies have their own procedures and internal agencies that process their own security clearance decisions for federal employees (e.g. DOE, NRO, CIA, etc).  

The clearance system may become more centralized in the future, but it is important for federal employees to be aware of the differences in security clearance processes at their individual agency.  This article addresses the security clearance process at the Department of Homeland Security (DHS) for federal employees.

The Clearance Process at DHS

The security clearance process at DHS is somewhat similar to the procedures for DOD employees, but there are some differences.  The DHS clearance procedure is governed by Chapter 6 of DHS Instruction # 121-01-007 (starting at page 28).  The following are the  normal steps in the security clearance review process for DHS federal employees when security concerns arise.

Step 1: Notice of Access Suspension

When a DHS employee faces a security clearance issue that arises, the usual first step is for the DHS agency component (e.g. FAM, TSA, CBP) to issue the DHS employee a Notice of Access suspension, which basically suspends the employee's access to classified information.  In this letter, the DHS employee will likely be notified of the personnel security specialist handling the case and the fact that they will be notified of additional processing steps in the future when they become available.  

Step 2: Notice of Determination to Revoke

Following a review by DHS, the typical next step is for DHS to issue a Notice of Determination to Revoke Access to Classified Information (Notice of Determination).  This notice will list the security guidelines and basis for the clearance decision, which in form looks much like a traditional Statement of Reasons used at DOD and other federal agencies. The notice should put the employee on notice of the security concerns that should be addressed. The notice will also provide the employee with instructions for responding to the Notice of Determination and for requesting information related to the notice. If information is timely requested, the deadline for responding to the notice will normally be extended in order to provide time to obtain the documents sought prior to the next step.  

Step 3: Personal Appearance

Once the information sought is obtained, if the DHS employee elects to do so, they can request and  present an in person response (known as a personal appearance). During the personal appearance they can present documents in support of keeping their security clearance to the DHS hearing official.  These presentations typically take between 45 minutes to an hour and 15 minutes.  

Step 4: Appeal to the DHS Security Appeals Board 

Following the personal appearance, the hearing official at Step 3 will issue a Notice of Review determination either upholding the clearance denial or restoring the security clearance.  Following the notice of denial, the DHS employee will then be given the opportunity to provide an additional written submission to the DHS Security Appeals Board to appeal the adverse decision.  The decision of the DHS Security Appeals Board is typically the final step in the process.

Conclusion

When an individual is facing security clearance issues at DHS or in another organization 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

Reporting Criminal Violations in the Security Clearance Process

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

There are times when an individual is potentially facing security clearance issues related to criminal law violations.  There was a time when the reporting of potential criminal violations may have put a security clearance at risk, but generally did not expose an individual to potential criminal liability.  Absent some specific exceptions, federal agencies did not seem to significantly report such issues to law enforcement.  

Today, however, it seems that federal agencies are giving more consideration to disclosing criminal violations to law enforcement authroities when they come across these issues in the security clearance process.  When such a situation arises, it is important to have the guidance of counsel as early in the security clearance process as possible to determine the best course of action.  Typically, criminal law disclosures occurr during the interview process or during a polygraph examination.  

More Common Criminal Disclosures 

Some of the more common situations that we have come across with respect to the reporting of criminal issues involve individuals reporting prior drug use, minor theft (e.g. shoplifting) and other relatively minor criminal violations.  These more common situations are generally not reported to law enforcement authorities by security clearance authorities.  

However, reporting serious crimes during a security clearance interview and/or polygraph examination has now become a significant issue which requires additional though prior to responding.  Serious crimes that may be reported can potentially include crimes or abuse involving children, major theft and the distribution of narcotics.

Subtle Changes in How Criminal Issues are Reported

There have been some subtle changes in how federal agencies deal with criminal issues disclosed during the security clearance process.  In the past, some intelligence agencies took the position that there was no legal obligation to report most federal criminal law violations to the Department of Justice.  However, these agencies have now also taken the view that nothing prevents them from disclosing such information to law enforcement either.  In other words, this leaves a fair amount of discretion to these agencies in what they decide to report.  

Intelligence agencies have been focused mostly on the reporting of federal criminal violations, as opposed to those involving state criminal law violations.  Some federal agencies have implemented new policies to determine whether state law violations should be reported.  One agency has indicated that they will report state criminal issues where the crime involves an imminent threat or serious bodily injury to another human being.  

The move to report additional criminal activities to law enforcement seems to have only increased with media reporting of security clearance related criminal activities, such as the Navy Yard shooting and the Edward Snowden disclosure issues.  These high profile security clearance related matters have made clearance investigators somewhat more likely to report serious crimes disclosed during the clearance process which have not previously been reviewed by law enforcement authorities.  There have also been some recent congressional investigations into the failure of some federal agencies to report serious crimes disclosed during the clearance process.  

However, given the high volume of reported minor criminal issues (i.e. past drug use) that occurs during the security clearance process the likelihood is that federal agencies are unlikely to refer more than the most serious crimes uncovered in the security clearance process.  

The Best Course of Action - Obtain Legal Advice

When evaluating one’s risks in reporting security clearance issues  involving possible criminal conduct, it is important to obtain legal advice as early as possible.  An attorney familiar with this area of law can help advise you as to whether it is appropriate to continue in the security clearance process and potential risks with respect to criminal issues which are disclosed to security clearance investigators, polygraphers, etc.  

Conclusion

When an individual is facing security clearance issues in the context of potential reportable criminal behavior, 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

Psychological Conditions and Security Clearances

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

When an individual is facing issues related to a particular psychological condition, either during the application process for a security clearance or after they obtain a security clearance, it is important for them to obtain legal advice and possible representation in order to provide the best opportunity to maintain access to classified information.  There are a number of security concerns relating to psychological conditions that can be potentially mitigated iif the right evidence is presented.  

Guideline I - Psychological Concerns

Guideline I of the Adjudicative Guidelines (contained within DOD Directive 5220.6) governs security clearance issues involving psychological conditions.  Guideline I provides the following security concerns about individuals with psychological conditions:

The Concern. Certain emotional, mental, and personality conditions can impair judgment, reliability, or trustworthiness. A formal diagnosis of a disorder is not required for there to be a concern under this guideline. A duly qualified mental health professional (e.g., clinical psychologist or psychiatrist) employed by, or acceptable to and approved by the U.S. Government, should be consulted when evaluating potentially disqualifying and mitigating information under this guideline. No negative inference concerning the standards in this Guideline may be raised solely on the basis of seeking mental health counseling.

How to Mitigate (Resolve) Psychological Concern Issues

We often represent and advise individuals regarding mental health concerns that arise in the course and scope of holding or seeking to obtain a security clearance.  Typically, mitigation will require the assistance of an individual’s medical professionals in order to demonstrate that the psychological condition does not remain a significant security concern.  The following are some of the types of mitigation arguments that can be made in security clearance cases (in any given case, some will apply, and others will not):

1. Evidence which shows that the psychological condition is under control with treatment;

2. Evidence which demonstrates that the individual has demonstrated ongoing compliance with medical treatment (and consistency);

3. Evidence that the individual has entered a counseling or other treatment program by qualified medical professionals;

4. Medical opinions by qualified mental health professionals which show that the psychological condition is under control; 

5. Evidence that the psychological condition at issue was temporary in nature and/or no longer remains a current problem; and/or

6. Evidence from family and friends which demonstrates that an individual has recovered from psychological conditions.

Sample Cases

The following are summaries of sample cases involving Guideline I cases before the Defense Office of Hearings and Appeals (DOHA) involving psychological conditions:

1. ISCR Case Number: 07-10169 (May 2010) (Applicant was diagnosed with major depression, recurrent, moderate, without psychosis; dysthymic disorder history; panic disorder without agoraphobia; and generalized anxiety disorder.  Clearance was granted because DOHA found that Applicant’s psychological conditions were under control and managed properly by Applicant’s physicians). 

2. ISCR Case Number:  09-02257 (Aug. 2010) (Applicant was diagnosed with major depressive disorder, but DOHA granted clearance finding that Applicant’s medications were being properly managed and that the Applicant’s mental health had improved to the point where he was in remission).

3. ISCR Case Number: 12-00322.h1 (Jan. 2014) (Applicant's diagnosed psychological condition, bi-polar disorder, was not mitigated (and clearance was denied) due to the absence of current evidence from a mental health professional to corroborate his claim that he no longer needed medication or consultation);

4. ISCR Case Number: 09-00318.h1 (June. 2012) (Applicant’s history of non-compliance with medical treatment for diagnosed bi-polar disorder, resulting in judgment difficulties and behavioral problems causing hospitalization was not mitigated and clearance was denied);

5. ISCR Case Number. 10-01525 (March 2012) (Applicant mitigated the psychological conditions concern under Guideline I, as depression was in remission and no current problems existed.  Applicant had previously suffered from episodes of depression in 2003, 2006, and 2009, but quickly overcame these bouts on his own (two being clearly related to outside stressors, including a divorce after 14 years of marriage).  

Conclusion

When an individual is seeking advice regarding a psychological condition as it impacts a security clearance, it is important to obtain legal 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 https://www.facebook.com/BerryBerryPllc.