SECURITY CLEARANCE ATTORNEY HANDLING DENIAL, SUSPENSION, AND REVOCATION
The attorneys at The Employment Law Group® law firm have experience advising and representing employees during all phases of the security clearance process, in addition to representing employees whose security clearance has been denied, suspended, or revoked.
Managing Principal R. Scott Oswald authored the comprehensive Introduction to the Federal Security Clearance Process , which was featured in Westlaw's Journal on Government contracts. Mr. Oswald discusses the evolution of the law surrounding security clearances and variations in procedure amongst government agencies, including the:
Department of Defense,
Department of Energy,
Department of Homeland Security,
Department of Justice,
Central Intelligence Agency (CIA), and
National Aeronautics and Space Administration (NASA).
A security clearance denial can severely hinder the chances of an applicant to obtain a nation security position with the government or a government contractor just as a security clearance suspension or revocation can jeopardize a current employee's position. Security clearance proceedings operate very differently from other government proceedings and vary greatly across government agencies. It is strongly recommended that you contact an attorney if your security clearance is at risk.
What is a Security Clearance? Back to top.
A security clearance is the determination by the federal government that a person is eligible for access to classified information or restricted physical areas. An individual may have access to classified information if they are at a place where such information is kept and the security measures in force do not prevent him or her from gaining knowledge of such information.
What is the purpose of a Security Clearance review? Back to top.
The purpose of a security clearance review is to ascertain whether a government agency or department deems a candidate is able and willing to safeguard information relating to national security. Agencies inquire into a candidate’s perceived loyalty, reliability, and trustworthiness by reviewing the candidate’s history, relationships, and overall character.
What are the Security Clearance levels? Back to top.
There are four levels of security clearance that a federal employee or private contractor can obtain: confidential, secret, top secret, and top secret/SCI.
How does an individual apply for a Security Clearance? Back to top.
The security clearance investigation can last as long as 18 months or more.
Individuals do not apply on their own behalf. An agency or government contractor must initiate the process. Candidates are instructed to either complete a Standard Form 86 (SF 86) [link to form] or fill out their information online using The Office of Personnel Management’s e-QIP website.
Each agency issues its own security clearances, which are valid at the agency that grants the clearance and only for the specific purpose for which the agency grants the clearance. Each agency has established its own unique adjudication process. Some agencies such as the FBI, CIA, and NSA investigate a candidate’s background using their own personnel. Other agencies such as the DoD, NASA, and Departments of Commerce and Agriculture rely on the Office of Personnel Management to investigate a candidate’s background.
What is the role of the Security Officer? Back to top.
If the agency grants the individual a security clearance, the agency will invite the individual to a security briefing. In the agency's security briefing, the agency's security officer will review the protocols that each grantee must follow to safeguard classified information, the scope of the information to which the grantee may have access, and the circumstances under which the grantee may view classified information.
Is a Security Clearance transferable? Back to top.
An individual’s security clearance is not technically transferable. Rather, most agencies will rely upon a sister agency’s adjudication of a security clearance so long as it is active and the agency has not received derogatory information calling into question the individual’s suitability to have access to classified information.
For how long is a Security Clearance valid? Back to top.
An individual’s security clearance is valid as long as the agency believes it is necessary for an individual to have access to classified information. Most agencies will periodically reinvestigate a grantee’s suitability to have access to classified information every five (5) years. When a grantee reapplies for government or government contractor employment after a period of separation from government, most agencies will accept a sister agency’s former security clearance investigation up to 24 months following an individual’s security debriefing.
Why are Security Clearances delayed, denied, suspended, or revoked? Back to top.
Before issuing a Security Clearance, agencies investigate the individual based on several suitability factors. Security Clearances are often delayed, denied, suspended, or revoked when information in an individual’s application or otherwise uncovered during the investigation calls into question one or more suitability factors. Those suitability factors include:
- Allegiance to the United States: An individual must be of unquestioned allegiance to the United States. The willingness to safeguard classified information is in doubt if there is any reason to suspect an individual’s allegiance to the United States.
- Foreign Influence: Foreign contacts and interests may be a security concern if the individual has divided loyalties or foreign financial interests, may be manipulated or induced to help a foreign person, group, organization, or government in a way that is not in U.S. interests, or is vulnerable to pressure or coercion by any foreign interest. Adjudication under this Guideline can and should consider the identity of the foreign country in which the foreign contact or interest is located, including, but not limited to such considerations as whether the foreign country is known to target United States citizens to obtain protected information and/or is associated with a risk of terrorism.
- Foreign Preference: When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may be prone to provide information or make decisions that are harmful to the interests of the United States. Under this guideline, possession of a foreign passport is not a disqualifying condition for a Top Secret/SCI clearance, although failing to report the possession of a foreign passport is.
- Sexual Behavior: Sexual behavior that involves a criminal offense, indicates a personality or emotional disorder, reflects lack of judgment or discretion, or which may subject the individual to undue influence or coercion, exploitation, or duress can raise questions about an individual's reliability, trustworthiness and ability to protect classified information. No adverse inference concerning the standards in this Guideline may be raised solely on the basis of the sexual orientation of the individual.
- Personal Conduct: Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual's reliability, trustworthiness and ability to protect classified information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process.
- Financial Considerations: 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.
- Alcohol Consumption: Excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual's reliability and trustworthiness.
- Drug Involvement: Use of an illegal drug or misuse of a prescription drug can raise questions about an individual's reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person's ability or willingness to comply with laws, rules, and regulations.
- Psychological Conditions: 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.
- Criminal Conduct: Criminal activity creates doubt about a person's judgment, reliability, and trustworthiness. By its very nature, it calls into question a person's ability or willingness to comply with laws, rules and regulations.
- Handling Protected Information: Deliberate or negligent failure to comply with rules and regulations for protecting classified or ether sensitive information raises doubt about an individual’s trustworthiness, judgment, reliability, or willingness and ability to safeguard such information, and is a serious security concern.
- Outside Activities: Involvement in certain types of outside employment or activities is of security concern if it poses a conflict of interest with an individual's security responsibilities and could create an increased risk of unauthorized disclosure of classified information.
- Use of Information Technology Systems: Noncompliance with rules, procedures, guidelines or regulations pertaining to information technology systems may raise security concerns about an individual's reliability and trustworthiness, calling into question the willingness or ability to properly protect sensitive systems, networks, and information. Information Technology Systems include all related computer hardware, software, firmware, and data used for the communication, transmission, processing, manipulation, storage, or protection of information.
The individual circumstances of each incident, including the length of time since its occurrence, will be taken into account by investigators when determining if an individual qualifies for a security clearance. It is possible to obtain a security clearance even though an individual would not have been suitable in the past if investigators now believe the individual is reformed and is suitable.
What happens if an application for a Security Clearance is denied? Back to top.
A candidate who is denied a security clearance will be notified of the reason for that decision and will have an opportunity to file an appeal. Each agency has its own appeal process.
For instance, the Defense Office of Hearings and Appeals (DOHA) handles security clearance denials for the Department of Defense. Applicants denied a security clearance receive a Statement of Reasons (SOR) from the government, which may be rebutted by submitting a rebuttal to DOHA within 20 days. The rebuttal must admit or deny every item in the SOR. If the applicant admits to an item in the SOR, he or she should provide extenuating or mitigating information.
If the DOHA does not withdraw the SOR, applicants may also request a hearing before an Administrative Judge (AJ) in which to present their rebuttal. Following a hearing, the AJ issues a written decision on the granting of a security clearance and the veracity of the allegations within the Statement of Reasons.
The AJ’s decision can be appealed to the DOHA Appeal Board. In a majority of cases, the DOHA Appeal Board’s decision is final. The DOHA Appeal Board may affirm or reverse any portion of the AJ’s findings, and may remand the case for further proceedings before the AJ.
Mr. Oswald discusses the procedures utilized by the DoD and several other agencies in his article titled Introduction to the Federal Security Clearance Process .
What options are available to an employee whose Security Clearance has been suspended or revoked? Back to top.
When an employee or contractor’s security clearance is suspended or revoked, the agency will issue its reasons. Each agency has its own procedures allowing the employee or contractor to appeal the decision.
When can I appeal to the Merit Systems Protection Board (MSPB)? Back to top.
The MSPB's decisions in Conyers and Northover upheld the rights of employees who occupied sensitive positions which did not require security clearances or access to classified information and granted these employees a narrow pathway of reviewability outside of the agency's review process.
What should you do if your Security Clearance application was denied or your Security Clearance has been suspended or revoked? Back to top.
If you would like to discuss the security clearance process or your particularized security clearance matter with an experienced security clearance attorney, Contact us at The Employment Law Group® law firm, to schedule an appointment to discuss your concerns.
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