Security Clearance Law Blog

Responding to the Statement of Reasons in a Security Clearance Case

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

Our law firm represents many individuals in security clearance matters. In previous articles, we have written about the significance of the Statement of Reasons (SOR) in security clearance defense cases. In this article, we are going to discuss some important general issues in regards to responding to an SOR when it is received.

The Statement of Reasons

Typically, an SOR is received by a federal employee or federal contractor when it has been recommended that their security clearance be revoked. Generally, the employee or contractor will receive a notice which lists the reasons why it is believed that the individual’s holding of a security clearance is not clearly consistent with the national interest. The SOR will then typically list the security concerns applicable in a case. 

These security concerns are listed in the Adjudicative Guidelines through DoD Directive 5220.6 which also provide the basis for seeking mitigation of these security concerns. Finally, the SOR will give you a deadline for responding to the SOR.

How to Respond

1. Take the Response Deadline Seriously: First and foremost, it is very important to be timely in your response to an SOR. Typically, the response time for most SORs is 20 days from receipt of the document. It is highly recommended that an individual respond as early as possible and not wait until one gets close to the deadline. Extensions are possible, but are not always granted. 20 days is not a significant amount of time, so it is important to get started on your response right away.

2. Obtain Counsel to Assist you in your Response: When an SOR is received, it must be taken seriously and one should seek counsel to help them in responding to the security concerns raised. The consequences for not doing so can be serious harm to one’s career. Often times an experienced attorney in this area can identify potential mitigating circumstances that can help one make the argument that their security clearance should be granted.

3. Review the Security Concerns in the SOR Fully: An individual should make sure that they have read over all portions of the SOR in preparation for responding to the security concerns. They should then outline a response to the concerns that have been raised in preparation for drafting their response.

4. Respond Fully to All of the Security Concerns Listed: Take each security concern seriously and take the time to address each one in your response. Make sure that you have reviewed all mitigating factors to see which ones are potentially applicable and then include them in your SOR response. Also, it is important to attach all potentially mitigating documentation and/or statements to support your contention that the recommendation in the SOR should not be followed. When we represent individuals in responding to SORs the presentation of relevant documents and statements are a key part of the response process and should be done in most cases.

Closing Thoughts on Responding to an SOR

Retaining an attorney familiar with the issues in responding to an SOR in the security clearance process is highly recommended. It is very important to do so early in the process given that the deadlines for responding can be relatively short. Doing so can often make the difference between obtaining or being denied your security clearance. Our law firm represents federal employees and government contractors in these types of security clearance matters and can be contacted at www.berrylegal.com.

The DOD Security Clearance Process for Contractors - An Outline

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

The security clearance process for government contractors can often be confusing. The purpose of this article is to attempt to provide a better understanding of the steps involved in the security clearance process for government contractors.   

Generally, there are two types of contractor employees that enter the security clearance process: (1) those individuals with an existing security clearance and (2) those individuals without an existing security clearance. Generally, if one has an existing security clearance in place with a prior employer or the government it may be possible to transfer the clearance to a new position without a new investigation taking place. 

However, if too much time has elapsed or there are other security concerns an individual’s security clearance may not be transferred easily. For those individuals, and for those who do not have security clearances, they will have to undergo security clearance processing, which basically follows the following 4 steps.

Step 1 – Completion of Security Clearance Introductory Documentation

The first step in the process for contractors in need of a security clearance is to complete the necessary security clearance paperwork in order to begin the process. Typically, this begins with the submission of the Standard Form 86 (SF 86) using the Electronic Questionnaires for Investigations Processing (e-QIP) system. These are submitted by the individual contractor to their Facility Security Officer (FSO) (otherwise known as the contractor’s security clearance officer). These forms should be carefully reviewed and completed in order to ensure full disclosure early in the process and to avoid potential concerns that the applicant for the clearance has truthfully answered all questions. The FSO then reviews an applicant’s e-QIP application and submits it to the Defense Industrial Security Clearance Office (DISCO) and to the Office of Personnel Management (OPM).

Step 2 – The OPM Investigation Process & DISCO Review

The second step, following completion of an individual’s security clearance paperwork is for the investigator assigned to generally meet with the individual and conduct an investigation. The investigation is conducted by OPM investigators. During this process, the individual seeking the clearance will be interviewed by the assigned OPM investigator, along with other relevant individuals (i.e. friends, relatives, acquaintances). 

Following the completion of OPM’s investigation, the matter will then be sent to the DISCO for review and approval. For most individuals, approximately 90-95% of those individuals seeking a clearance, this is the end of the security clearance process and a clearance is granted. However if the DISCO adjudicator is unable to resolve an individual’s existing security concerns, the case is then sent to the Defense Office of Hearings and Appeals (DOHA) for further review.

Step 3 – Referral to DOHA

The third step in the security clearance process for government contractors, if there has not been a positive adjudication before DISCO, is for the matter to be submitted to the DOHA for further review. DOHA adjudicators then review the security clearance matter. These adjudicators can remand (send back) the case to DISCO and instruct that the individual be granted the security clearance. DOHA can also (more typically the case) issue a Letter of Intent (LOI) to deny the security clearance to the applicant, providing the individual with a Statement of Reasons (SOR). 

An SOR lists DOHA’s security concerns regarding an applicant’s attempt to obtain a security clearance. At this stage, an individual will be asked to respond to the SOR by admitting or denying the security concerns that have been raised. It is important to note that if the individual does not respond in a timely fashion to the SOR, DOHA will deny the security clearance.

Step 4 – The DOHA Hearing & the Appeal Process

The fourth step in the process is to proceed before the administrative judge assigned to hear an individual’s security clearance case. The individual will also have the opportunity to elect a hearing before an administrative judge or to instead request a review of the written record without a hearing. It is highly recommended that individuals at this stage of the process, however, elect a hearing before an administrative judge. Relying on a written decision, in our experience, tends to provide less of a chance to explain the security concerns and to mitigate them and hence a lower chance of being able to obtain the security clearance. It is very important that the contractor be represented during the hearing process. 

Otherwise, it can be very difficult to explain and to mitigate the security concerns that have been raised. During this type of administrative hearing before DOHA, there are opening statements, the examination of witnesses, the cross-examination of witnesses, the introduction of exhibits and closing statements. Following the DOHA hearing, usually 2-3 months afterwards, the contractor will receive a copy of the administrative judge’s decision. 

If the decision is favorable and the individual has mitigated all security concerns, then the security clearance will be granted. If the decision is not favorable, the security clearance is not granted and the individual can attempt to appeal the decision to the DOHA Appeal Board within 15 calendar days. Appeals can be difficult and are extremely time sensitive so it is critical to have counsel assist you in challenging a security clearance decision by appeal. 

Closing Thoughts on the Contractor Security Clearance Process

Retaining an attorney familiar with the security clearance process is highly recommended. It is very important to do so early in the process. It can make the difference between obtaining and being denied your security clearance. Our law firm represents government contractors in these types of security clearance matters and can be contacted at www.berrylegal.com.

JPAS Incident Reports – The Impact on a Security Clearance

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

When issues arise with respect to one’s existing security clearance they may be reported by an employer and placed in the Joint Personnel Adjudication System (JPAS).  This type of reporting is generally referred to as an Incident Report.  A negative Incident Report can be reported by a supervisor and then to your employer’s Facility Security Officer (FSO), or by other governmental entities, investigators or others.  It is important to understand what effect this may have on one’s security clearance and to obtain legal advice early in the process in order to protect an individual's security clearance. 

JPAS Issues Can Arise

JPAS is the system that was put into place by the U.S. Government and used to check the status of an individual’s security clearance (and involved in personnel investigations). JPAS issues often come up when an individual is terminated from a position with a federal contractor where they have held a security clearance.  When an individual with a security clearance is terminated, the employer generally separates the individual in the JPAS system. 

If the employer has terminated the individual’s employment relating to an incident of alleged misconduct, the employer will often submit an Incident Report through JPAS describing the basis for the termination of employment / the misconduct involved.  If a person has left the employer in good standing this is not as much of an issue as the person may retain interim security clearance eligibility in JPAS.

If the person is still employed by the government contractor, the Incident Report will then be reviewed by the Department of Defense Central Adjudication Facility (CAF) to determine what actions may be necessary regarding an existing security clearance.  If the Incident Report involves minor issues or does not appear to contain any serious security concerns, the CAF will generally close the Incident Report and update the individual's clearance record in JPAS. 

The CAF, however, can also decide to request further information, to include requiring a new Standard Form SF-86 in addition to a full / limited investigation regarding the issues involved.  Once the new investigation is complete, the CAF can determine what steps to take in adjudicating the Incident Report and whether to leave an individual’s security clearance intact or to move to take steps to revoke an individual’s access to classified information. 

Problems with the JPAS System and Loss of Jurisdiction

A major problem with the JPAS system for security clearance holders tends to occur when an individual is terminated at the same time that an Incident Report is submitted.  The problem here becomes that CAF cannot adjudicate the issues in the Incident Report because they believe that there is a “loss of jurisdiction.”  A loss of jurisdiction just means that the CAF is without authority to adjudicate security concerns if an individual is no longer employed by a contractor and the security concerns are still pending.

Ultimately, the individual subject to a loss of jurisdiction seeks new employment, believing that they still have their security clearance intact.  The new employer’s Security Officer then inquires about the individual’s security clearance and finds out that there is an unresolved Incident Report which is holding up the validation of the security clearance at issue. 

New Employer Can Sponsor an Individual

The good news in this type of matter is that an individual’s new employer can sponsor the individual in the clearance process so that a previous Incident Report can then be taken out of “loss of jurisdiction” status and reviewed and adjudicated by the CAF.  If the Incident Report at issue contains only minor security concerns the CAF can resolve the matter and reinstate the person’s clearance.  If not, further investigation may be needed, which can take more time.

Coordinate with the Prior Employer

It is always important to have counsel when an outstanding JPAS Incident Report is involved.  Often time past issues with an employer may have led to the negative information being placed in the Incident Report.  When we represent individuals we often attempt to resolve their past employment and related security concerns with their past employers. 

Conclusion

When responding to an Incident Report involving an individual’s security clearance, it is very important to have counsel represent you in 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.

 

 

 

DOD Directive 5220.6 and the Adjudicative Guidelines for Security Clearances

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

In our representation of federal employees and contractors in security clearance matters, it is often very important for us to have access to 2 very important documents, Department of Defense (DOD) Directive 5220.6 and the Adjudicative Guidelines which govern the security clearance process.  We have attached a copy of both documents, courtesy of the DOD, to bottom of this post.

Directive 5220.6 contains the general rules regarding the security clearance process for covered organizations and the Adjudicative Guidelines contain the specific security concerns that are brought forth when the Government attempts to deny a security clearance. 

Our law firm represents federal employees and contractors in regards to security clearance matters and can be contacted at www.berrylegal.com for representation.  A copy of these two documents is attached in the file that follows.  Download Directive52206

Security Clearance Issues with Respect to Lifestyle Polygraph Examinations

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

Often times in our law practice we come across individuals that have been scheduled for a Lifestyle Polygraph examination as part of their security clearance evaluation. A Lifestyle Polygraph examination involves a detailed examination of the applicant’s personal lifestyle that is not necessarily asked about on the SF-86/e-Qip. The underlying purpose behind a Lifestyle Polygraph examination is to identify issues in an Applicant’s private life which could affect their susceptibility to potential blackmail or coercion by foreign countries or others.

The Lifestyle Polygraph examination is part of a full-scope polygraph. Issues of Concern during Lifestyle Polygraph Examinations Issues that are often times examined in Lifestyle Polygraph examinations include areas of sexual conduct (pornography), alcohol / drug use, mental health, family relationships, dishonest conduct and compulsive /addictive behaviors.

How Lifestyle Polygraph Examinations are Conducted

Lifestyle Polygraph Examinations are administered by professional polygraph examiners employed by the agency involved. These types of examinations generally take between 2.5 to 5 hours to complete. All stages of the examination are generally recorded.

Pre-Testing Phase

These examinations generally begin with a pre-test phase which the polygraph examiner uses to plan for the interview. During this phase, the individual will be explained the legal issues associated with the polygraph, the questions that will be involved, and any concerns that the individual has about the pending areas for discussion. The polygraph examiner will also go ahead and test the response monitoring equipment for the polygraph testing phase. Many polygraph examiners will attempt to use techniques to attempt to gather as much information during this stage of the examination process.

Testing Phase

The testing phase for a Lifestyle polygraph examination is the portion where the actual questions are asked and your responses are monitored. During a Lifestyle polygraph examination, all types of questions as to your personal life may be explored. Some examples of questions may include the use of illegal drugs, pornography, downloading of software, music or movies, honesty and mental health issues.  It is important to be honest in the polygraph process.  

Post-Testing Phase

In the post-testing phase, the individual will be questioned about problem areas on the polygraph examination. If ultimately unsuccessful, the individual or applicant will be asked to return for a follow up examination.

Followup Polygraph Examination(s)

Generally, if an individual does not pass the polygraph examination, they can be brought back for additional examinations. From my experience, a person may receive an additional 2 polygraph examinations before an issue arises as to whether or not further examinations may be allowed. This varies from case to case.

Conclusion and Thoughts

When taking a polygraph examination legal issues may rise requiring the advice of an attorney. This law firm represents individuals in the security clearance process and can be contacted at www.berrylegal.com.

Security Clearance Appeals Before the DOHA Appeal Board

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

Often times, federal employees and government contractors encounter issues with their security clearance renewal or initial application. The individual generally first completes their SF-86 through e-QIP and an investigation ensues.  When security concerns arise these individuals are eventually provided a Statement of Reasons (SOR) as to why they shouldn’t be granted a security clearance. The individual then responds to the SOR and ultimately chooses to litigate their security clearance issue before the Defense Office of Hearings and Appeals (DOHA). 

The case is then assigned to an administrative judge and the clearance case is heard. The administrative judge in the case will then later issue a decision on the security clearance matter (generally 2-4 months after the hearing) either finding in favor of the individual (generally referred to as the Applicant) or not. If the decision is issued in the individual’s favor, the individual is granted their security clearance. However, if the DOHA administrative judge rules against the individual’s eligibility for a security clearance, the next step is to file an appeal with the DOHA Appeal Board. Appeals before the DOHA Appeal Board are governed by Department of Defense (DOD) Directive 5220.6, often referred to as the “Directive.”

Procedural Considerations

Upon receipt of an unfavorable security clearance decision from the DOHA administrative judge, the individual/applicant generally has 15 days from the date of the decision to file a Notice of Appeal with the Chairman of the DOHA Appeal Board. The Notice of Appeal is different than the filing the appellate brief, which is due later in the process. An important point here is that the Notice of Appeal must be filed (not just submitted or in the mail) with DOHA prior to the expiration of the 15-day deadline. The purpose of the Notice of Appeal is just to put DOHA on notice that the Applicant intends to file an appeal in this case and that the appellate brief will be forthcoming.

Filing the Appellate Brief

The next step in appealing the decision of the DOHA administrative judge is to file the Applicant’s Appellate Brief. The Appellate Brief should explain, in detail, the legal arguments that would support reversal of the administrative judge’s decision with regards to a security clearance denial. The Appellate Brief should also specifically cite to the facts and sections of the record that are involved in the appeal. 

The Appellate brief must be filed within 45 days of the date of the unfavorable administrative judge decision. Again, the brief must be filed, not just submitted, within that timeframe. The Appellate Brief should focus on the specific legal arguments raised as a result of the earlier proceedings and the record that was developed during the hearing process. Applicants should keep in mind that the DOHA Appeal Board does not hear new evidence on appeal, but just reviews the record from the beginning of the case through the hearing process. 

Some of the more common arguments raised by individuals on appeal include the following:

1. Challenging an Administrative Judge’s Findings of Fact.

Example: Putting forth a legal argument asserting that the administrative judge’s findings in a case were incorrect based on the evidence in the record.

2. Contending that an Administrative Judge’s Legal Conclusions were Arbitrary and Capricious.

Example: Arguing that the administrative judge erred with respect to their interpretation of law, rule and regulations in making an unfavorable decision.

3. Challenging Whether or Not the Government Met its Burden of Proof.

Example: Making the argument that the government did not meet it’s burden of proof with respect to the allegations in the SOR.

4. Contesting the Whole Person Analysis at the Hearing Stage.

Example: Arguing that the administrative judge did not properly evaluate the whole person analysis during the hearing stage based on the evidence of record.

There are other grounds for contesting an unfavorable decision, but the 4 arguments listed above tend to be the most common arguments used.

The Government’s Reply Brief

The attorneys representing the government at the DOHA stage have the right to file a Reply Brief in response to the issues raised in the Appellate Brief. They usually have 20 days to file this Reply Brief. Sometimes the government does not file one, and it is considered optional by DOHA.

Decision by the DOHA Appeal Board

Following submission of the Appellate Brief and the Reply Brief, the DOHA Appeal Board will  review the legal arguments raised and the evidence of record and then will issue a decision after reviewing the record and the briefs.

Further Review after DOHA Appeal Board Decision

In the case of an unfavorable DOHA Appeal Board decision further review of the case is possible, but it is at the discretion of the Board. The DOHA Appeal Board has ruled in the past that it has the ability to reconsider their own decisions. There is, however, no apparent right for reconsideration, but the Board has the inherent authority to reconsider determinations that have been made. See ISCR Case No. 98-0621 (“There is no right to reconsideration; rather, the Board has the sole discretion to decide whether to exercise its inherent authority to reconsider one of its decisions.”).

Conclusion

When faced with an appeal of an unfavorable security clearance determination by a DOHA administrative judge, it is very important to obtain counsel to evaluate whether to take an appealforward and also for representation during the process.  If an individual has questions about this process, they can contact our Firm at www.berrylegal.com  to schedule a time to go over their individual security clearance appeal issues.

The Connection between Security Clearance Issues and Federal Employment

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

The ability to obtain or maintain a security clearance, for certain federal employees can be critical with respect to keeping their positions. If a federal employee is required to have access to classified information, then they must be eligible for a security clearance. In the course of federal employment, difficulties often arise when a previously cleared federal employee later runs into security clearance issues or when a new federal employee has trouble obtaining a clearance. When this happens it is very important to retain counsel as soon as possible.

When a federal employee has a potential issue that has the ability to affect their security clearance, then the most important move to make is to retain counsel as quickly as possible. The earlier one retains an attorney to assist them with possible security clearance issues, the better chance one generally stands of keeping their clearance and their position. To give federal employees a better understanding of the connection between one’s security clearance and their federal employment, we have outlined the connection between federal employment, a security clearance and the Merit Systems Protection Board (MSPB).

Access to Classified Information

If a federal employee is required to have access to classified information, they will need to qualify for a security clearance. The federal employee involved, unless they already possess such a clearance will have to complete undergo a security clearance investigation and complete a Standard Form 86 (SF-86), usually through the computerized Electronic Questionnaires for Investigations Processing (e-QIP) system. Following the investigation, the employee is (1) granted access to classified information, (2) further information is needed from the federal employee, or (3) the federal employee’s access to information is denied. If denied, there are options for appealing this determination depending on the federal agency that employs the individual. In most situations, it is very important that if a federal employee is required to hold a security clearance that he or she appeal an adverse decision against them. Often times, when a clearance is denied it can very well be the beginning of the removal process for the federal employee. I have outlined the potential process that can unfold in this instance.

The Indefinite Suspension

When a security clearance is not granted or is suspended, the first problem that a federal employee can run into is the imposition of an indefinite suspension. Often times, there will be a quick turnaround from the moment that a federal employee, who has a need for access to classified information, is denied a security clearance. Federal employers can then propose an indefinite suspension (usually without pay) while the clearance appeal process is ongoing. This can take some time, depending on the federal agency involved and be a significant drain on the federal employee’s financial situation.

For instance, if one is employed by the Department of Defense, they would generally appeal their security clearance denial to the Defense Office of Hearings and Appeals (DOHA) and then ultimately to their agency's personnel security appeals board. During this period of time, if the federal employee was placed in an indefinite suspension status, he or she would be in a no pay status. This can generally last between 4 and 12 months. Once the clearance is returned (hopefully), then the suspension can be dissolved and the individual can return to a pay status.

Removal for Final Decision Denying Security Clearance

If the federal employee involved ultimately loses their security clearance, generally the next step for the federal agency involved is to remove them from their position.This underlines the importance of actively protecting one's security clearance. It can be very difficult to maintain one's federal employment following a final decision denying a security clearance.

If one is removed from their employment for failure to maintain a security clearance it can be very difficult to appeal the removal decision to the Merit Systems Protection Board (MSPB). It has been established that the MSPB generally does not have authority to review the underlying merits of a security clearance/access determination. Dep't of the Navy v. Egan, 484 U.S. 518, 529 (1988); Cheney v. Department of Justice, 479 F.3d 1343, 1349-50 (Fed. Cir. 2007). In addition, the MSPB has not been authorized to review procedures followed in denying security access; in this regard, the MSPB’s review is limited to determining whether procedural protections were provided in connection with the adverse action appeal. King v. Alston, 75 F.3d 657, 662 (Fed. Cir. 1996). While this hardline view has been changing as of late, as the MSPB has appeared to offer more leeway in evaluating federal agency decisions regarding security clearance issues, such review can be limited. See Pistilli v. Treasury, 117 M.S.P.R. 221 (2011).

Conclusion

When facing a security clearance issue in your federal employment it is very important to take it seriously as soon as possible. The decision to proactively response to these security clearance issues will often times maximize one's chance for maintaining their federal employment. Each of these types of situations can differ so it is important to contact an attorney experienced in these areas. Our law firm can be reached at www.berrylegal.com or by telephone at (703) 668-0070.

The Security Clearance Hearing Process at DOHA – What to Expect

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

If you are a federal employee or contractor whose security clearance is under review (commonly referred to as the Applicant) and you are in the process of having your case heard before the Defense Office of Hearings and Appeals (DOHA), there are a number of considerations to take into account as you move forward to the hearing.

Before the DOHA, an applicant for a security clearance should be well prepared, in advance, to present their case at the hearing.  Having legal counsel represent you in this forum is highly advised.  Below are some considerations that we take into account when representing federal employees and federal contractors as they approach the hearing stage at DOHA before an administrative judge.  

The process of a DOHA hearing, which can vary between cases, usually proceeds as listed below:

            1.  Prior to the date of the hearing, you need to make sure that you have contact information available to ensure that you have an escort to the hearing room.  You will want to arrive early with your witnesses to ensure that you are on time for the proceedings.

            2.  The Applicant must make sure that they have all of their exhibits submitted to both the administrative judge and the government’s attorney (if there is one) in advance, according to the rules.   These exhibits will be reviewed and then the government will have the opportunity to object or comment on them before they are entered into the record.

            3.  When you enter the DOHA hearing room, typically the applicant for a security clearance sits on the left hand side of the hearing room / table and the government attorney (if there is one) will sit on the right.

            4. The witnesses (other than the applicant for a security clearance) will likely be sequestered (kept out of the room) before they testify.

            5. The witnesses, in turn, will usually testify to the left of the DOHA administrative judge.

            6. Typically, the administrative judge will hear any procedural issues first from both sides before starting the hearing.

            7. The hearing will usually then start with opening statements if a security clearance applicant is represented by an attorney.  The applicant’s attorney will go first because the person seeking the security clearance has the burden of showing that their clearance should be granted or recommended favorably.  The government’s attorney, if one is present, will then have the option to provide their opening statement if they wish to do so.

            8. The first witness called by the security clearance attorney will most likely be the applicant who is the most important of all of the witnesses and will usually take the most time of all of the witnesses in testimony. 

            9. Following an examination by the applicant’s attorney, the government’s attorney and/or the administrative judge will question each witness.  The examination will mostly center around the facts and issues related to the Statement of Reasons (SOR) issued earlier in the case.

            10.  Once the applicant has completed presenting his case (finished with presenting all of their witnesses and exhibits), the government, if it wishes, can introduce their own witness testimony and exhibits to use in arguing against the granting of a security clearance for the applicant. 

            11.  Once the testimony is complete, the parties may be asked to provide their closing arguments in the case.

            12.  Following closing arguments, the record will be closed (unless extended for some reason – i.e. the need to extend the closing date for the submission of additional exhibits that are needed).

            13.  Depending on the status of the person seeking the security clearance at issue, federal employee or federal contractor, the administrative judge will then issue a recommended or final decision.

            14.  The proceedings before the DOHA administrative judge are transcribed by a court reporter and the parties will usually be able to obtain a copy of these when they become available.

Each DOHA hearing before an administrative judge can be unique so individuals are advised to have counsel represent them during the hearing process.   

 

Security Clearance Issues for Federal Employees and Contractors Involving Guideline B, Foreign Influence

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

Foreign Influence issues under Guideline B of the Adjudicative Guidelines for security clearance matters are a commonly used basis for the Government in delaying or denying a security clearance application or reinvestigation. Guideline B applies to both federal employees and contractors.

BACKGROUND FOR GUIDELINE B, FOREIGN INFLUENCE CASES

Guideline B, Foreign Influence, covers a number of issues involving potential risks to classified information based on foreign influence. A number of individual issues come up with respect to foreign influence where the Government has reason to believe that an individual could have divided loyalties or foreign financial interests / foreign property abroad that might place classified information at risk. The rationale behind foreign influence concerns for the Government is that foreign interests and contacts can become potential security issues where a person with a clearance could be subject to foreign manipulation or somehow be induced to help a foreign government by providing classified information.

In evaluating Guideline B issues, the Government considers the nature of scope of the foreign contacts and/or foreign interests for the security clearance applicant. They also consider the particular foreign government involved, i.e. whether they tend to be allied with the United States or whether the country has taken an adversarial approach to the United States. For instance, it is often easier to mitigate security concerns where a security clearance applicant has ties to a country like the United Kingdom, versus ties to a country such as North Korea. This is because the Government considers the nature of the foreign government involved in each case. In particular, they consider the intelligence gathering history of a foreign government as important evidence that provides context for all the other evidence of record and must be brought to bear on the ultimate conclusions in the case. See ISCR Case No. 06-18400 (App. Bd. Aug. 2, 2007); ISCR Case No 04-07766 (App. Bd. Sept. 26, 2006).

When issues of foreign influence arise, in the scope of a security clearance examination or review, it is critical to take them seriously and to retain legal counsel familiar with these types of security clearance issues in order to minimize the potential damage to a security clearance. Many of the issues are explained in the language of Guideline B, listed below:

Guideline B: Foreign Influence.   The Concern. A security risk may exist when an individual's immediate family, including cohabitants and other persons to whom he or she may be bound by affection, influence, or obligation are not citizens of the United States or may be subject to duress. These situations could create the potential for foreign influence that could result in the compromise of classified information. Contacts with citizens of other countries or financial interests in other countries are also relevant to security determinations if they make an individual potentially vulnerable to coercion, exploitation, or pressure.

Conditions that could raise a security concern and may be disqualifying also include: (1) An immediate family member, or a person to whom the individual has close ties of affection or obligation, is a citizen of, or resident or present in, a foreign country; (2) Sharing living quarters with a person or persons, regardless of their citizenship status, if the potential for adverse foreign influence or duress exists; (3) Relatives, cohabitants, or associates who are connected with any foreign government; (4) Failing to report, where required, associations with foreign nationals; (5) Unauthorized association with a suspected or known collaborator or employee of a foreign intelligence service; (6) Conduct which may make the individual vulnerable to coercion, exploitation, or pressure by a foreign government; (7) Indications that representatives or nationals from a foreign country are acting to increase the vulnerability of the individual to possible future exploitation, coercion or pressure; (8) A substantial financial interest in a country, or in any foreign owned or operated business that could make the individual vulnerable to foreign influence.

Conditions that could mitigate security concerns under foreign influence include: (1) A determination that the immediate family member(s) (spouse, father, mother, sons, daughters, brothers, sisters), cohabitant, or associate(s) in question are not agents of a foreign power or in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the person(s) involved and the United States; (2) Contacts with foreign citizens are the result of official United States Government business; (3) Contact and correspondence with foreign citizens are casual and infrequent; (4) The individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons or organizations from a foreign country; (5) Foreign financial interests are minimal and not sufficient to affect the individual's security responsibilities.

TIPS IN HANDLING SECURITY CLEARANCE CASES INVOLVING FOREIGN INFLUENCE ISSUES

In security clearance cases involving Guideline B, Foreign Influence, it is important to thoroughly review all of the facts listed in the Statement of Reasons (SOR) and make a checklist of the allegations that are at issue. This is important because it will be crucial to rebut each and every allegation of foreign influence, no matter how minor they seem. In our law practice, we advise individuals that have security clearance issues falling under Guideline B to obtain as much information regarding the allegations in order to effectively rebut them in your response before your agency, Central Adjudication Facility (CAF), Central Clearance Facility (CCF), the Department of Hearings and Appeals (DOHA), Personal Security Appeals Board (PSAB) or other oversight authority for your security clearance.

Providing a general response, without substantial supporting evidence, often does not result in effectively rebutting the security concerns raised under Guideline B. When Guideline B allegations are raised, an applicant needs to aggressively respond to each of the factual allegations made, providing a full explanation/rebuttal of each issue raised by the Government, in addition to providing documents to support your response.

One of the most helpful types of information that can be provided by an individual seeking a clearance are written (and preferably sworn) statements from other individuals that support a person’s loyalty to the United States. For example, if you are alleged to have had a number of foreign contacts, the best type of response would include written statements from others (co-workers, supervisors, community leaders) supporting your loyalty to the United States.

It is also helpful for security clearance applicants with foreign influence concerns to provide documents and statements that demonstrate the minor nature of foreign contacts, financial interests, property and/or influence that have been cited in the SOR as potential security issues. While obtaining these types of supporting documents and witness statements can be time consuming, often times it is these very types of documents which make the difference in obtaining a positive outcome as to one's security clearance application in cases involving alleged foreign influence.

Foreign influence cases under Guideline B of the Adjudicative Guidelines involve individual sets of facts and mitigating factors specific to each case so it is important for an attorney to be consulted as soon as possible in the process to assist applicants.  Our Firm represents individuals in security clearance cases and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. 

Security Clearance Issues for Federal Employees and Contractors under Guideline E, Personal Conduct

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

Guideline E of the Adjudicative Guidelines for Security Clearance evaluations is one of the most commonly used guidelines by the government for denying security clearance applications, renewals or upgrades. 

BACKGROUND FOR GUIDELINE E CASES

Guideline E, Personal Conduct, covers such broad categories as honesty, falsification, reliability and questionable judgment.  One of the most common issues that we see in our practice which falls under Guideline E involves alleged instances of dishonesty.   We also see other security clearance concerns falling under Guideline E, where an individual receives a Statement of Reasons (SOR) related to alleged poor judgment evidenced by having debts, the failure to follow rules and other work-related misconduct. 

 Truthfulness, falling under Guideline E, is viewed as one of the most important qualities by the government for those holding a security clearance and hence one of the most common issues that arises in security clearance investigations.  One of the other key areas for review by investigators under this guideline involves an applicant’s willingness to follow rules, laws and regulations.  The government believes that the protection of classified information generally requires strict compliance with rules and regulations. An individual’s willingness to comply, in general, with rules and regulations is, therefore, a very important qualification for access to sensitive information. As a result, any conduct which indicates an individual's inability or the lack of desire in following laws, rules and regulations can be a significant security concern under Guideline E, Personal Conduct. 

When issues involving personal conduct arise, in the scope of a security clearance examination or review, it is very important to take them seriously and to obtain legal counsel familiar with these types of issues in order to minimize the potential damage to a security clearance.  

Guideline E, Personal Conduct, in pertinent part, lists the government's concerns under this provision, as follows:

Guideline E: Personal Conduct 

The Concern. Conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate that the person may not properly safeguard classified information.

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

(1) Reliable, unfavorable information provided by associates, employers, coworkers, neighbors, and other acquaintances;

(2) The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities;

(3) Deliberately providing false or misleading information concerning relevant and material matters to an investigator, security official, competent medical authority, or other representative in connection with a personnel security or trustworthiness determination;

(4) Personal conduct or concealment of information that may increase an individual's vulnerability to coercion, exploitation, or duties, such as engaging in activities which, if known, may affect the person's personal, professional, or community standing or render the person susceptible to blackmail;

(5) A pattern of dishonesty or rule violations, including violation of any written or recorded agreement made between the individual and the agency;

(6) Association with persons involved in criminal activity.

Conditions that could mitigate security concerns include:

(1) The information was unsubstantiated or not pertinent to a determination of judgment, trustworthiness, or reliability;

(2) The falsification was an isolated incident, was not recent, and the individual has subsequently provided correct information voluntarily;

(3) The individual made prompt, good faith efforts to correct the falsification before being confronted with the facts;

(4) Omission of material facts was caused or significantly contributed to by improper or inadequate advice of authorized personnel, and the previously omitted information was promptly and fully provided;

(5) The individual has taken positive steps to significantly reduce or eliminate vulnerability to coercion, exploitation, or duress;

(6) A refusal to cooperate was based on advice from legal counsel or other officials that the individual was not required to comply with security processing requirements and, upon being made aware of the requirement, fully and truthfully provided the requested information; and

(7) Association with persons involved in criminal activities has ceased.

TIPS IN HANDLING SECURITY CLEARANCE CASES INVOLVING PERSONAL CONDUCT ISSUES

In security clearance cases involving Guideline E, Personal Conduct, it is important to thoroughly review all of the facts listed in the SOR and make a checklist of the allegations that are at issue.  This is important because it will be crucial, especially in cases alleging instances of untruthfulness or falsification, to fully contest each of the factual allegations mentioned in the SOR to support the security concern under Guideline E. 

In our practice, we advise individuals that have security clearance issues falling under Guideline E to obtain as much information regarding the allegations to rebut them in your response before your agency, Central Adjudication Facility (CAF), Personal Security Appeals Board (PSAB) or other oversight authority for your clearance.  Providing a general response, without supporting evidence, often does not result in effectively rebutting the security concerns raised. 

Essentially, when Guideline E allegations are raised, an applicant needs to aggressively respond to each of the factual allegations made, providing a full explanation/rebuttal of each issue raised by the agency, in addition to providing documents to support your response.  One of the most helpful types of information that can be provided by an individual seeking a clearance are written (and preferably sworn) statements from other individuals that support your version of events regarding an allegation.

For example, if you are alleged to have had a history of not following rules and regulations because a former employer provided this allegation to investigators, the best type of response would include written statements from others that were present which would support your version of events.  While obtaining documents and witness statements can be time consuming and/or difficult, often times it is what makes the difference in obtaining a positive outcome as to one's security clearance application.  

Personal conduct cases under Guideline E involve diverse types of facts, and a number of mitigating factors specific to each case so it is important for an attorney to be consulted as soon as possible in the process to assist applicants.