Security Clearance Law Blog

Department of State Employee Security Clearance Appeals Process

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

As we have noted in other articles, the U.S. Government security clearance process is not run by one agency. Each federal agency maintains their own procedures and personnel for processing their own security clearance decisions for federal employees (e.g. Treasury, Commerce, DoD, DoE, NRO, DOJ, etc). The DoS is one of those agencies. This article addresses the security clearance process at the DoS for federal employees and applicants.

The Clearance Process at DoS

The security clearance process at the DoS is somewhat similar to the procedures for Department of Defense employees, but there are some differences. The following are the normal steps in the security clearance review process for DoS clearance holders when they are facing security clearance issues. The DoS security clearance process is managed by the DoS Office of Personnel Security and Suitability (PSS).  It is important to note that employees have the right to counsel before DoS at all stages of the clearance process.  The Personnel Security process is governed by 12 FAM 230, Personnel Security.  

Step 1: Notification Letter

When a federal employee or applicant has a security clearance issue with DoS, they will receive a notification letter from the Director of the Diplomatic Security Service/PSS, listing the security concerns at issue in granting or continuing the clearance and other rights in a Memorandum. These rights generally include the ability to obtain any documents (investigative file) upon which the revocation or denial is based within 10 days. Upon receipt of the information from DoS, the individual generally has 30 days in which to provide a written reply. In this reply, the individual will be given an opportunity in which to respond to the security concerns in an effort to mitigate them. DoS follows the Adjudicative Guidelines when reviewing security clearance matters, so it is important to be knowledgeable about them.

Step 2: Responding to the Notification Letter/Memorandum

Following a review of the investigative file, at this stage, the individual responds to the Notification Letter and all of the materials in the investigative file from DoS. A response should address the security concerns at issue directly, e.g. Guideline F, Financial Considerations, or other issues and focus on the potential mitigation of the security concerns. This response should be comprehensive and cover both the security concerns, mitigation and the whole-person concept. It is critical to provide a full and fully-documented response.

Step 3: Decision by Assistant Secretary for Diplomatic Security

Once the response by the individual is received, DoS Assistant Secretary for Diplomatic Security will review the Director's decision, the file and also the individual’s reply and will issue a decision as to whether or not the security concerns have been resolved. If so, the matter is then resolved favorably for the federal employee. If not, the individual will have an opportunity to further appeal the denial or revocation.

Step 4: Review by DoS Security Appeals Panel

The next step in the DoS security clearance process is for the employee to appeal to the DoS Security Appeals Panel within 30 days of the adverse decision in Step 3. Generally, the individual has 2 weeks prior to the Security Appeals Panel’s meeting to submit additional documents the they want included in the review. The individual can, and is recommended to exercise his/her right for an in person appeal before the panel. This should be done with the assistance of counsel. These types of presentations typically take between 45 minutes to an hour. The Security Appeals Panel can ask for additional information from an individual if it feels it needs additional information in order to make an informed decision.

Step 5: DoS Appeals Panel Decision

Following the personal appearance, the DoS Security Appeals Panel issues a decision, either granting the clearance or access at issue or a denial. The decision is final, but the individual may re-apply after a waiting period.  

Conclusion

When an individual is facing security clearance issues at the DoS or in another federal agency it is important to obtain legal advice and potential representation.  Our law firm advises individuals in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located here.

The Significance of the Statement of Reasons in Security Clearances Cases

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

One of the most important considerations that our law firm evaluates in respect to our Security Clearance practice involves what is known as the Statement of Reasons.  The Statement of Reasons or SOR is the centerpiece of a security clearance case for federal employees and contractors.

THE STATEMENT OF REASONS – GENERALLY

In essence, the Statement of Reasons is the core of the security clearance process for federal employees and contractors. The Statement of Reasons is the legal equivalent to the filing of a civil complaint in regards to civil issues; it is the center of the case prepared against an individual in regards to their security clearance. 

Typically, for federal employees the SOR or Statement of Reasons is issued following the origination of the security clearance concern from the local security office. The Statement of Reasons, for federal employees, will then be issued, usually by the relevant agency’s central adjudication facility (CAF). The Statement of Reasons will usually be attached to a cover letter, referencing an agency’s intent to revoke eligibility for an individual’s security clearance. In contractor cases, the SOR is issued by DOHA.

The Statement of Reasons will then list the factual concerns upon which the security clearance issues have arisen and the security guidelines which are involved.  The following is an example of a Statement of Reasons issued for a federal employee:

_________________________________

SAMPLE STATEMENT OF REASONS

Here is an example of the core substance of a sample Statement of Reasons, for a federal employee:

Subj:             INTENT TO REVOKE ELIGIBILITY FOR SECURITY CLEARANCE AND ASSIGNMENT TO A SENSITIVE POSITION, MS. JOANNA JAMES,

SSN:            XXX-XX-1234

STATEMENT OF REASONS

Security Guideline(s):  FINANCIAL CONSIDERATIONS

2 Feb 11            You were issued a Letter of Intent to Suspend Access to Classified Information from DOD Installation ABC for alleged discrepancies with regards to allegations that you misused your government credit card to pay for personal expenses on 12 December 10.

Applicable Personnel Security Guidelines

The following are excerpts of the personnel security guidelines cited in reference (b), which are relevant to your case.  Each guideline contains both disqualifying and mitigating factors.

FINANCIAL CONSIDERATIONS

The Concern. Failure or inability to live within one's means, satisfy debts, and meet financial obligations may indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about an individual's reliability, trustworthiness and ability to protect classified information. An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds. Compulsive gambling is a concern as it may lead to financial crimes including espionage. Affluence that cannot be explained by known sources of income is also a security concern. It may indicate proceeds from financially profitable criminal acts.

_________________________________

RESPONDING TO THE STATEMENT OF REASONS

Once an individual receives a Statement of Reasons, the key for a successful defense involves being able to successfully refute the factual allegations or to mitigate them.   That process begins with hiring an attorney to assist the individual in their response.   In the example above, the first step as an attorney might be to determine from the individual whether the allegation itself was valid, i.e. that the government credit card was used for the personal expenses alleged (sometimes mistakes are made in prepare SORs). 

Next, if it is determined that the individual’s government credit card was used by the individual employee for his/her personal expenses, the next question as an attorney might be to find out what mitigating factors could be helpful in explaining why the person involved should still be granted a security clearance.  To do this, one must review the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information.  For instance, there may be an argument that the expenses were really authorized by his agency, or that perhaps there was confusion about whether the expenses were in fact authorized which might serve mitigate the security concerns.  Another potential helpful factor might be whether or not the employee immediately paid the government credit card right away, reported the charge to supervisors ahead of time, etc. 

The key to responding to the Statement of Reasons or SOR is to start with the factual allegations, make a full synopsis of all facts involving the allegation and review the potential mitigating factors in such cases. It is at that point that the attorney can begin preparing an effective response to the SOR. 

CONCLUSION

The SOR is the cornerstone of any security clearance case for a federal employee or contractor.  Any security clearance defense case must begin with a comprehensive review of the SOR.  From that point, an attorney can began to establish a strong defense for the client.  Security clearance cases are unique and require the advice and assistance of an attorney.