Quick Definition:
An indefinite suspension places a federal employee in a non-duty, non-pay status without a set end date, typically pending an investigation, medical determination, or security clearance action.
Indefinite suspensions are a unique and serious issue in federal employment law, particularly for positions requiring a security clearance. As a nationwide federal employment attorney, We regularly advise federal employees across the United States who have been proposed for an indefinite suspension due to clearance, criminal or medical-related issues.
These types of cases can place employees in professional and financial limbo for extended periods, often with limited due-process protections and unclear timelines for resolution. Legal counsel is important.
What Is an Indefinite Suspension in Federal Employment?
An indefinite suspension is considered a non-disciplinary adverse action used by federal agencies when an employee is deemed unable to perform the essential functions of their position.
Federal agencies may impose an indefinite suspension for one of three reasons and the suspension remains in place until the issue is resolved, with no defined end date.
From a federal employment attorney’s perspective, these actions are among the most disruptive and legally complex employment measures agencies can take.
When Agencies Use Indefinite Suspensions
Federal agencies generally use indefinite suspension in three major scenarios:
1. Criminal Investigations or Charges
If an agency has reasonable cause to believe an employee committed a crime that could lead to imprisonment, it may place the employee on indefinite suspension while the criminal matter is pending.
2. Medical or Fitness-for-Duty Concerns
An agency may suspend an employee if continued presence in the workplace could pose a danger due to medical issues — pending a fitness-for-duty determination.
3. Security Clearance Suspensions
If an employee’s access to classified information — essential to their job — is suspended or revoked, the agency may impose an indefinite suspension pending the clearance decision.
These situations must be supported by legitimate agency reasons and tied to the efficiency of the service, a legal standard in federal adverse actions.
Why Indefinite Suspensions Are Common in Federal Employment
Unlike private-sector employment, many federal positions require ongoing eligibility for access to classified or sensitive information. As a result, federal employees are uniquely vulnerable to indefinite suspensions tied to:
-
Pending security clearance investigations
-
Clearance suspensions or proposed revocations
-
Adjudication delays
-
Allegations that remain unresolved
Even when allegations are disputed or unproven, agencies often proceed with suspension based solely on clearance uncertainty.
Types of Indefinite Suspensions
Federal employees may be placed on:
✔ Indefinite Suspension With Pay
Often used when the agency temporarily removes an employee from duty but continues pay status, usually via a short memorandum.
✔ Indefinite Suspension Without Pay
More serious — requires formal notice and due process. It removes the employee from both duty and pay status until the triggering conditions are resolved.
Most concerns arise when the suspension is without pay, due to the financial impact on a federal employee.
How Indefinite Suspensions Differ From Other Federal Adverse Actions
Indefinite suspensions differ significantly from removals or fixed-term suspensions:
-
No predetermined end date
-
Often framed as non-disciplinary
-
Frequently involve national security authority
-
May limit MSPB appeal rights
Because clearance, criminal and medical issues frequently take months or years, indefinite suspensions can quietly become long-term employment separations.
Due Process and Legal Rights Under Federal Employment Law
Indefinite suspensions raise serious due-process concerns. While federal employees are entitled to procedural protections under civil service laws, agencies often argue that those protections are reduced when national security or clearance authority is invoked.
As nationwide federal employment attorneys, we routinely see agencies assert broad discretion even when:
-
The underlying allegations are contested
-
No final clearance decisions or criminal charges have been issued
-
Employees are denied access to critical evidence
This makes early legal strategy essential.
Appealing an Indefinite Suspension
Federal employees may appeal an indefinite suspension to the Merit Systems Protection Board (MSPB). When doing so, they should understand:
-
The agency must demonstrate that it had reasonable cause for the suspension.
-
The suspension must promote the efficiency of the service and have an ascertainable condition that will end it.
If procedural due process was denied — for example, insufficient notice or an unclear basis — the MSPB may reverse or remand the action.
Additional guidance is available through the MSPB appeals process for federal employees.
The Real-World Impact on Federal Employees
Federal employees placed on indefinite suspension often experience:
-
Extended loss of income
-
Career stagnation or derailment
-
Clearance damage affecting future employment
-
Significant emotional and financial stress
Many employees assume the suspension will be short. In reality, clearance delays are common, and prolonged suspensions are the norm.
Why Federal Employees Nationwide Seek Legal Counsel Early
Federal employment law—and especially security clearance law—is highly specialized. Employees facing indefinite suspension benefit from early legal representation to:
-
Protect procedural rights
-
Shape the agency record
-
Respond strategically to proposed actions
-
Minimize long-term clearance damage
Waiting to seek counsel can significantly limit available options.
Frequently Asked Questions About Indefinite Suspensions
Is an indefinite suspension disciplinary?
No. Agencies typically characterize indefinite suspensions as non-disciplinary. However, the impact can be as severe as a removal.
Can an indefinite suspension last indefinitely?
Yes. There is no fixed time limit, and suspensions may last as long as the issue (clearance, criminal, medical) remains unresolved.
Can a federal employee be placed on indefinite suspension without pay?
Yes. An agency may impose an indefinite suspension without pay, but only after providing required due process, including advance notice, the opportunity to review evidence, and a chance to respond. These suspensions are considered adverse actions under federal regulations.
Will an indefinite suspension affect future federal employment?
It can. How the matter is handled may affect future clearance eligibility and federal job opportunities.
Protecting Your Federal Career
Indefinite suspensions sit at the heart of federal employment law. Federal employees across the country should not assume these matters will resolve quickly or without lasting consequences. For a more technical overview, see our resource page on indefinite suspension for federal employees.
Summary
Indefinite suspension for federal employees is a powerful administrative tool used in serious employment situations. They:
-
Occur without a fixed end date and typically involve major adverse scenarios
-
Must meet due process requirements under federal regulations
-
Can be appealed through the MSPB with proper legal strategy
If you or a colleague are facing an indefinite suspension, it’s important to act quickly to protect your rights and career.
📞 Call (703) 668-0070 for a confidential consultation or click here.
If you are a government contractor or federal employee facing an adverse security clearance decision by the National Security Agency (NSA) — including denial, revocation, or loss of Sensitive Compartmented Information (SCI) access — you need experienced legal representation to protect your career and reputation.
NSA Security Clearance Appeals — Legal Help for Contractors & Employees
At Berry & Berry, PLLC, our security clearance attorneys help contractors and cleared professionals appeal NSA security clearance decisions and navigate the complex NSA appeals process with confidence. We frequently represent individuals in security clearance appeals before the NSA. The NSA is part of the Intelligence Community group of agencies.
Why Appeal an NSA Security Clearance Decision?
A security clearance denial or revocation can disrupt your employment, contract eligibility, and future job prospects in national security, defense contracting, and intelligence roles. The NSA has its own clearance process and standards under Executive Order 12968 and Security Executive Agent Directive 4 (SEAD 4) — meaning appeals must be precisely prepared and timely.
Failing to respond correctly — or missing strict deadlines — can result in a final decision that leaves you without clearance and without options for months or longer.
Of note, there are some ongoing changes as of early 2026 in the NSA security clearance appeals process that are being implemented right now.
NSA Security Clearance Appeal Process — Step by Step
The NSA security clearance appeal process moves quickly and requires strategic preparation:
1. NSA Issues a Statement of Reasons/Clearance Decision Statement – Two Track Process
When an individual has a security clearance or SCI access denial or revocation from the NSA (referred to as the Statement of Reasons (SOR) or Clearance Decision Statement), it will list the security concerns at issue. Depending on how the NSA views your case, your case will proceed either through one of two processes.
For both processes, individuals will be provided the Investigative Files about the issues in the case.
A. Track 1 – The New SOR Process
For many new NSA security clearance cases, individuals will receive a Statement of Reasons (SOR). If so, they will have 10 days to elect to appeal a denial. This deadline is strict. Individuals in this process will have the ability to request an abbreviated Personal Appearance of about 30 minutes in-person in addition to their written review. From the date you elect to appeal, you will have another 30 days to submit your written response to the NSA before the PA. If you have elected an in-person meeting that will take place at the NSA after the written response is received. You may have counsel represent you in this process.
B. Track 2 – The Existing Process Still in Use for Some
For certain cases, individuals will be routed to the previous NSA clearance appeals process that allowed you to respond within 45 days. There is no in-person meeting at this initial stage. A senior official from NSA security will review the response and determined whether or not to mitigate the security concerns. It is likely that the existing process will eventually be phased out. You are allowed security clearance counsel in this process as well.
2. Contractor Response to the NSA SOR / Clearance Decision Statement
In either case, if the individual elects to reply to the SOR or Clearance Decision Statement they will need to respond to the NSA’s security concerns by written submission. A thorough response must be prepared to address all of the security issues. It is critical to also provide exhibits, such as relevant evidence, declarations, character letters, declarations, affidavits, and other documentation related to the NSA’s security concerns or the character of the individual.
Our security clearance lawyers typically represent individuals starting with this first step. The submission can often involve submitting a 10-15 page response, plus exhibits. As a result it is important to consult with an attorney that is familiar with the NSA security clearance process.
3. First Level Clearance Decision Issued by the NSA
A. Under the New SOR Process
Once the response to the SOR is received by the NSA and/or the short in-person meeting with counsel has concluded a decision will be rendered. If the decision is favorable there is nothing further to be done and the matter should be resolved. If a negative decision is made, the individual will receive a new notice, and a new 10-day period to elect an appeal with the NSA Access Appeals Panel (AAP). Then the individual will have another 30 days to file a written appeal. However, in this case, you will not meet directly with the NSA AAP, but rather submit a written appeal for their review and final vote. At this point a decision is rendered and is final.
B. Under the Existing Process
If your case is handled under the existing process, the NSA Office of Personnel Security will also review the response. There is no first step in-person meeting. The NSA will then issue a decision as to whether or not the security concerns against the individual should be dismissed or mitigated. If so, the matter is resolved and the clearance or SCI is restored. If not, the individual will be provided a decision briefly citing the reasons why the appeal was denied and informing the individual of their right to a final appeal before the NSA AAP.
There is then a very short period of time (usually 15 days) in which to either request a hearing with the AAP or otherwise simply submit a secondary written appeal. Again, these timelines are critical and the process is evolving.
4. Personal Appearance with the NSA Access Appeals Panel
Under the existing process, if an individual has elected to present an in-person response (which is recommended), the next step is a meeting with the AAP. Any additional supporting documents must usually be submitted no later than 14 days prior to the AAP hearing. The AAP hearing is an in-person presentation. During this hearing before the AAP, counsel and the individual will present their case asking for a reversal of the negative security clearance or SCI determination.
The AAP normally has 5-7 people present (panel members and an NSA attorney/advisor) and typically asks several questions during the presentation so it is important to be prepared. We recommend legal counsel during this process to ensure adequate preparation for the AAP hearing. The presentations are usually conducted at the NSA and in person.
5. The NSA Access Appeals Panel Final Decision
Lastly, under the older adjudication process, following the personal appearance hearing, the AAP would issue a decision, typically within 1-3 weeks. This makes the NSA unique among most of the intelligence community given how quickly they issue decisions. They will either grant or deny the clearance appeal. In a few cases, the AAP can seek additional information or ask for an additional response from the individual.
If the AAP issues a final denial, the individual may re-apply for a security clearance or access a year later. The relatively quick clearance review process at the NSA is unique among intelligence agencies where the security clearance process can often take much longer.
6. Other Considerations for Appealing NSA Decisions
If an adverse clearance decision is rendered by the NSA under either process, it is important to plan for the reapplication process with the NSA. It is also important to determine any impact that a final NSA clearance denial might have on other security clearances held by the contractor. Separate security clearances may require representation before other agencies.
For example, a negative NSA decision could affect an individual with a Department of Defense security clearance. In those types of circumstances, it is critical to respond to the NSA SOR or Clearance Decision Statement. The response will remain in NSA security files and will be potentially available to other federal agencies in other security clearance evaluations.
Common Reasons NSA Clearances Are Denied or Revoked
Security clearance decisions are based on trustworthiness and reliability factors. Common issues include:
-
Financial problems or unexplained debts
-
Criminal history or misconduct
-
Foreign influence or preference
-
Personal conduct concerns
-
Failure to disclose relevant information on clearance forms
- Polygraph-related issues
Identifying the root cause of your clearance denial is the first step in building an effective appeal strategy.
How a Security Clearance Lawyer Helps
Security clearance appeals are not ordinary legal cases — they involve:
-
Complex federal regulations
-
Tight deadlines
-
Technical adjudication guidelines
An experienced lawyer can help you with:
✅ Reviewing your investigatory file and allegations
✅ Developing a persuasive written response
✅ Preparing you for your Security or AAP hearing
✅ Gathering and organizing strong mitigating evidence
✅ Communicating with NSA adjudicators on your behalf
Legal counsel at this stage significantly increases your chance of retaining or regaining clearance.
Frequently Asked Questions About NSA Security Clearance Appeals
Can you appeal an NSA security clearance denial?
Yes. Contractors and employees may appeal NSA security clearance denials or revocations through a written response and, in many cases, a hearing before a security officer or NSA Access Appeals Panel.
How long do I have to appeal an NSA clearance decision?
Deadlines are short. Security clearance applicants and holders have between 10 to 45 days to respond to an initial decision. They also have as little as 15-30 days to request a hearing or appeal after an adverse determination.
Do I need a lawyer to appeal an NSA security clearance?
While not required, legal representation significantly improves outcomes. NSA appeals involve classified procedures, strict deadlines, and detailed evidentiary standards.
What issues commonly cause NSA clearance denials?
Financial issues, foreign contacts, criminal conduct, personal conduct concerns, and omissions on security forms are common reasons.
Speak With an NSA Security Clearance Appeal Attorney Today
Whether you are a contractor, federal employee, cleared professional, or pending applicant, our security clearance lawyers understand the NSA’s unique process and appeal requirements. We offer personalized legal representation to help you navigate and win your appeal.
📞 Call (703) 668-0070
📍 Berry & Berry, PLLC – Serving clients nationwide
📩 Contact us for a confidential consultation
Before a federal employee can appeal a disciplinary action to the Merit Systems Protection Board (MSPB), the employing agency must first issue a final agency decision on the proposed discipline. When the final action results in a suspension of 15 days or more, a demotion, or removal, the employee may have the right to appeal to the MSPB.
Before deciding whether to file an appeal, it is critical to carefully review the final agency decision and consult with an experienced federal employment attorney.
What Is a Final Agency Decision?
A final agency decision is the written determination issued by the deciding official in response to a proposed disciplinary or adverse action, such as a proposed suspension, demotion, or removal. This decision follows the employee’s opportunity to submit a written and/or oral reply to the proposal.
In most cases, agencies issue a final decision within two to eight weeks after the employee submits a response. During this period, the employee may continue working or may be placed on administrative leave. Once the final decision is issued, important deadlines begin to run.
Agency Timelines Can Vary
Some federal agencies issue final decisions quickly, while others take significantly longer. Regardless of timing, once the decision is issued, the employee must promptly review it to determine whether an MSPB appeal—or another appeal option—is available and appropriate.
Key Issues to Review Before Filing an MSPB Appeal
When reviewing a final agency decision, federal employees should pay close attention to the following issues with the help of a MSPB appeals attorney:
1. The Effective Date of the Action
The effective date is often different from the date on the decision letter. In most cases, the 30-day deadline to file an MSPB appeal begins on the effective date, not the date the decision was signed. Missing this deadline can result in dismissal of the appeal.
2. Which Charges Were Sustained
If multiple charges or specifications were proposed, the deciding official may have sustained some, all, or none of them. If charges were not sustained, this may support an argument that the penalty imposed was excessive and should have been mitigated.
3. New or Improper Information in the Decision
Employees should carefully review the language used in the final decision. If the decision includes new factual findings, evidence, or reasoning that were not disclosed in the proposal or supporting materials, this may raise due process concerns. This issue often arises in the deciding official’s factual findings or analysis of the Douglas factors.
4. Appeal Rights Listed in the Decision
Final agency decisions often list multiple potential appeal options. However, agencies do not always correctly identify an employee’s eligibility for certain appeal forums. Choosing the wrong forum can result in the loss of appeal rights. An attorney can help determine whether the MSPB—or another process—is the correct venue.
Vague or Incomplete Factual Findings
Many final agency decisions contain minimal factual analysis by the deciding official. While detailed findings are less common, they can sometimes reveal legal or procedural errors that strengthen an MSPB appeal. It is also important to note that not all federal employees have the same appeal rights, and certain employees—such as some Department of Veterans Affairs personnel—may be covered by different appeal systems.
Deciding Whether to Appeal
A final agency decision should be reviewed carefully and promptly. Because MSPB deadlines are strict and appeal rights vary by employee and agency, obtaining legal advice early can help protect your rights and ensure the strongest possible case.
Conclusion
When considering an appeal to the MSPB, a thorough review of the final agency decision is essential. An experienced federal employment attorney can evaluate the decision, identify potential legal issues, and advise you on the best course of action.
Berry & Berry, PLLC represents federal employees nationwide before the Merit Systems Protection Board. To discuss your case, contact us at www.berrylegal.com or call (703) 668-0070.
Many federal employees quit when things become toxic or discriminatory. They shouldn’t have to suffer these issues in the federal workplace but do. Many resign or retire and then ask whether or not there is any remedy. This is where the concept of constructive discharge comes up. Our federal employment lawyers represent these federal employees.
📞 Call (703) 668-0070
What is a Constructive Discharge?
A constructive discharge is a forced resignation or retirement by involuntary means. Many federal employees are confused about this concept and whether it may apply to their case.
The most clear example of a constructive removal involves a federal employee who has suffered continuous discrimination in the workplace to the point that they are suffering significantly at work (mentally and/or physically) and the employee’s very well being requires that they resign.
This type of argument can be made at either the Equal Employment Opportunity Commission (EEOC), in the context of a Merit Systems Protection Board (MSPB) appeal, in the courts and before other forums.
Examples of Constructive Discharge in the Federal Sector
1. An agency failed to address ongoing sexual harassment at work against a female federal employee, where the employee fears for their safety and resigns after their agency has not remedied the situation after she had reported it.
2. A federal employee is forced to apply for disability retirement when a federal agency refuses to take steps to determine whether his medical disability could be reasonably accommodated.
3. A federal employee, rather than facing daily acts of retaliation at work for having filed an Equal Employment Opportunity (EEO) complaint against their supervisor later resigns because his manager, still angry about the earlier EEO complaint, continues to retaliate against the employee severely. The federal employee, despite her attempt to notify upper management of these acts of retaliation, begins to suffer anxiety and depression. The employee resigns based on these intolerable working conditions to protect her health.
4. A federal employee working for at an air base restaurant was found to have been at an subjected to unlawful harassment based on his sexual orientation when a server at the restaurant repeatedly called him a derogatory name used to insult gay men and threatened him with bodily harm. Because the federal employee’s resignation was seen as reasonable, given the threats, the EEOC held that he was constructively discharged from his position. Silas T. v. Dep’t of the Air Force, EEOC No. 2019003996 (EEOC OFO 2021).
How to Establish a Constructive Discharge Claim
The key issue in a constructive discharge or removal case is whether the agency, through discrimination, retaliation, harassment, etc., made the employee’s conditions at work so horrible that any reasonable person in the same situation would have felt compelled to resign or retire. Constructive removals or discharges do not happen in every case and the EEOC, MSPB and the courts review these cases in degrees to determine whether or not a resignation or retirement was effectively forced due to the intolerable working conditions.
The essential test for a constructive removal/discharge are the following questions:
1. Whether or not there has been discriminatory or retaliatory behavior against the federal employee?;
2. Whether or not the discriminatory behavior has been so severe as to be intolerable by a reasonable person?; and
3. Whether the individual was forced to resign or retire because of these intolerable conditions?
If the answers to these 3 questions are yes, then it is possible to bring a constructive removal or discharge case against a federal agency. It is very important, in the context of a constructive discharge claim, to put the agency on notice of the ongoing negative work conditions before a resignation or retirement takes place. This cannot be emphasized enough. The agency should have a clear record of the efforts made by the federal employee to put management on notice of the ongoing negative work conditions. Doing so before the removal is often key to showing evidence of the intolerableness in working conditions when filing a claim.
Evaluating Evidence for Constructive Removal
Establishing evidence of the constructive removal is important given the way in which the EEOC and the MSPB have evaluated such claims in the past. The MSPB “has recognized that ‘an employee is not guaranteed a work environment free of stress,’ and that dissatisfaction with work assignments, a feeling of being unfairly treated, or difficult or unpleasant working conditions are not so intolerable as to compel a reasonable person to retire or resign. Miller v. Department of Defense, 85 M.S.P.R. 310, 322 (2000). The EEOC, in 2017, in Latarsha A. v. Cochran, 2017 EEOPUB LEXIS 319, EEOC (IHS) 0120150488 (E.E.O.C. Jan. 31, 2017) offered their reasoning:
The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee’s working conditions so difficult that any reasonable person in the employee’s position would feel compelled to resign. Carmon-Coleman v. Dep’t of Def., EEOC Appeal No. 07A00003, 2002 EEOPUB LEXIS 2344 (Apr. 17, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant’s position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant’s involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep’t of Justice, EEOC Request No. 05940688, 1995 EEOPUB LEXIS 1014 (Apr. 13, 1995).
Remedies for Constructive Discharges / Removals
There are a number of remedies possible for constructive discharge cases. For instance, there can be a return to work, lost backpay, attorneys fees, and compensatory and other damages. Additionally, settlements can often be worked out with federal agencies which rectify a difficult employment situation in any number of ways.
Contact Us
If you need assistance in filing or evaluating a constructive discharge claim, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.
As security clearance attorneys, we frequently represent individuals whose tax issues have placed their cleared careers at risk. One of the most commonly overlooked risks to a security clearance is unresolved tax debt or filing issues. Tax-related security clearance issues affect both federal employees and government contractors.
While many people understand that an arrest could trigger a clearance denial or revocation, fewer appreciate that delinquent taxes or late tax filings can also cause the same result.
The Connection Between Tax Issues and Security Clearances
Security clearances are issued based on an individual’s trustworthiness, reliability, and ability to safeguard classified information. These fall under Guideline F: Financial Considerations in Security Executive Agent Directive 4 (SEAD 4). Under this guideline, unresolved tax debts and the failure to file tax returns can cause roadblocks to keeping or obtaining a security clearance.
Why do tax issues matter? The government views significant debts or financial mismanagement as a potential security risk. Even if there is no evidence of misconduct, the mere appearance of financial problems can raise issues during a background investigation. In our experience, tax issues matter more to the Government than regular unpaid debts. The Government tends to view both tax debts and late tax filings as equally serious.
Common Tax Problems for Security Clearance Holders
The most common tax-related issues that jeopardize clearances include:
• Failure to file tax returns (federal, state or local)
• Unpaid federal, state or local tax debt
• Tax liens or garnishments
• Negligence in failing to resolve tax disputes
Another important note. Tax issues don’t have to be recent. Even older tax delinquencies can resurface during a clearance renewal or background reinvestigation. Also, tax issues that are indicative of a pattern are subject to more intense scrutiny.
What the Government Considers in Tax Clearance Issues
Not all tax issues are created equal. In assessing your case, adjudicators will consider:
• The nature, extent, and recency of the tax problem
• Whether it was intentional or negligent
• Whether there were policy exceptions involved with the tax filings (e.g. military service)
• Steps taken to resolve the tax issue
• Voluntary disclosure vs. concealment
For example, an individual who fell behind on taxes due to a medical emergency but who is now making regular payments under an IRS installment agreement will generally be viewed more favorably than someone who simply ignored their filing obligations.
Tips in Responded to Tax-Related Clearance Issues
If you are seeking or currently hold a security clearance and are facing tax problems, it is important to act promptly. Fixing tax issues for security clearance holders is very important. Here are a few quick tips in dealing with adverse tax issues:
Consult a Tax Professional
Professional guidance can help you understand your tax liabilities and options. Often, tax attorneys or CPAs can work with the IRS or state or local tax agencies to resolve tax issues on your behalf. They can also help in providing documentation of your positive efforts to resolve tax issues.
Work on Resolving the Tax Issues
Whether through a tax installment agreement, offer in compromise, or other IRS program, begin addressing the debt immediately. It is harder to mitigate these security concerns when the individual only starts attempting to resolve the tax issues are a Statement of Reasons (SOR) has been issued. It is important to address the tax issues as soon as possible. More credit is given to individuals who have evidence that they have worked on resolving their tax issues prior to the issuance of an SOR.
Keep a Record of all Tax-Related Documents
Keep detailed records of your efforts to resolve your tax issues. This documentation will be key during any security clearance adjudication or appeal. Keep documents, tax transcripts, cashed checks, copies of correspondence and even emails regarding tax resolution efforts.
Transparency is Important
Attempting to hide tax issues can result in an automatic denial or revocation. Transparency is critical. Keep in mind that background investigators likely have all of your tax records already.
Acceptance of Responsibility Where Warranted
When you have made mistakes with unpaid tax debts or late filings, acceptance of responsibility can be important. If you have a tax issue, it isn’t a good idea to blame someone else. It is best to accept responsibility where warranted and explain how the issue was unique and will not happen again.
Hire a Security Clearance Lawyer
If your security clearance is under review for tax issues, an attorney familiar with clearance law can prepare a compelling response and represent you before the appropriate federal agency. Tax issues are more complicated than most cases and often require a tax professional, as well as a security clearance attorney.
Contact Us
Tax issues, while serious, are not necessarily the end of your security clearance. What often matters more is how you respond. Inaction can lead to the loss of a security clearance. However, being proactive can help mitigate the tax issues and help you preserve your security clearance. We represent security clearance holders and applicants facing tax issues. We can be reached at (703) 668-0070 or through our website.
Federal employees can face disciplinary actions for a wide range of issues, from minor reprimands to proposed removals. When your federal career is on the line, understanding the process and asserting your rights is critical.
At Berry & Berry, PLLC, our federal employment attorneys represent federal employees nationwide in disciplinary and adverse action cases. With decades of experience defending federal workers, we help protect careers, benefits, and professional reputations.
Federal Disciplinary and Adverse Actions Explained
Federal disciplinary actions vary and include:
-
Letters of counseling or warning
-
Letters of reprimand
-
Suspensions (14 days or fewer)
-
Demotions
-
Proposed removals
More serious penalties, those involving suspensions over 14 days, demotions, and removals are considered adverse actions with additional legal rights given to federal employees.
Step-by-Step: the Federal Disciplinary Process
The following includes the 8 parts of the federal disciplinary process that federal employees should consider when going through a disciplinary action.
1. Receiving the Proposed Action
When an agency issues a notice of proposed discipline or an adverse action, it should:
-
Explain the allegations or performance issues
-
List relevant deadlines
-
Provide (or be requested to provide) the evidence relied upon
There are usually at least 2-3 deadlines in a proposed action that you have to consider. These include: (1) the deadline to request the materials relied upon, (2) the deadline to request an oral response; and (3) a deadline to submit the written response. Deadlines can be short (as few as 7 days) or up to 30 days. Missing a deadline can forfeit your right to respond. In some cases, deadline extensions can be sought.
2. Request All Materials Relied Upon
Federal employees have the right to review the agency’s evidence before responding. These materials may include:
-
Investigation reports
-
Emails, video, recordings, or documents
-
Witness statements
Having the full file is essential for crafting a strong written response.
3. How to Prepare a Comprehensive Written Response
Your written response should:
-
Address all allegations
-
Refute inaccuracies
-
Include supporting exhibits (declarations, rebuttal evidence, performance records, character letters)
It’s often detailed (7–20 pages or more), and should also include mitigation arguments known as the Douglas factors — criteria used to argue for a reduced penalty even if some misconduct occurred.
4. Prepare an Oral Reply
In important disciplinary cases, presenting an oral reply before a Deciding Official can make a significant difference. This is your chance to:
-
Emphasize key arguments
-
Highlight mitigating circumstances
-
Reinforce why discipline should be reduced or withdrawn
Experience in oral advocacy can directly influence outcomes.
5. Understanding the Douglas Factors
The Douglas factors are used in federal disciplinary cases to argue for a lesser penalty. Established by the MSPB in Douglas v. Veterans Administration, they include considerations such as:
-
Length of service
-
Past performance and awards
-
Absence of prior discipline
-
Whether the offense was intentional or negligent
Agencies must consider these factors when determining a reasonable penalty.
6. What Happens After Your Response
Once written and oral responses are complete, the agency’s Deciding Official issues a final decision. Outcomes may include:
-
Disciplinary action upheld
-
Penalty reduced
-
Proposed action rescinded
You’ll also receive a notice outlining your appeal rights.
7. Appeals Options After an Adverse Action
If the final decision is adverse, you may have one or more appeal options depending on your circumstances.
-
Merit Systems Protection Board (MSPB) – appeals for adverse actions like removals and long suspensions
-
Agency grievance procedures – if covered by a union contract
-
Equal Employment Opportunity (EEO) complaints – if discrimination or retaliation is involved
-
Office of Special Counsel (OSC) – for whistleblower retaliation claims
Deadlines for appeals are strict — often as few as 30 days — so prompt legal support is essential.
8. Why You Need an Experienced Federal Employment Lawyer
Defending a federal disciplinary action is not just procedural, it is a chance to reverse or mitigate damage to a federal employee’s career. A skilled attorney can:
-
Analyze and challenge agency evidence
-
Identify procedural errors
-
Craft persuasive mitigation arguments
-
Navigate complex appeals, including MSPB and OSC complaints
With decades defending federal employees, Berry & Berry, PLLC helps clients protect their jobs, benefits, and retirement.
Frequently Asked Questions About Federal Employee Disciplinary Actions
What should I do after receiving a proposed suspension or removal?
After receiving a notice of proposed discipline, you typically have a limited amount of time to respond before a final decision is made. This is your primary opportunity to challenge the agency’s allegations, present evidence, and argue for a lesser penalty. Many employees choose to consult an attorney at this stage because an effective response can sometimes prevent or reduce discipline before it becomes final.
How long do I have to respond to a federal disciplinary action?
Response deadlines vary by agency and the type of action, but employees are commonly given 7 to 30 days to submit a written response and request an oral reply. These deadlines are strict, and missing them can limit your ability to influence the outcome. The proposal notice should specify the exact timeframe.
Can I respond orally instead of in writing?
In many cases, federal employees are entitled to both a written response and an oral reply to the deciding official. An oral reply allows you to address concerns directly, clarify misunderstandings, and humanize your position. Written responses, however, are often critical because they create a record that may later be reviewed on appeal.
What are the Douglas Factors and why do they matter?
The Douglas Factors are a set of criteria agencies must consider when determining an appropriate penalty, including your work history, intent, consistency of discipline, and potential for rehabilitation. A strong response often focuses on these factors to argue that the proposed penalty is excessive or unreasonable. Addressing the Douglas Factors can significantly affect the final outcome.
Do I need an attorney before a final decision is issued?
While representation is not required, many federal employees seek legal guidance during the proposal stage because this is when discipline can sometimes be mitigated or avoided altogether. Once a final decision is issued, options may become more limited and costly. Early legal involvement can help ensure your response is strategic and complete.
Can disciplinary actions be appealed to the MSPB?
Some disciplinary actions, such as removals, demotions, and lengthy suspensions, may be appealable to the Merit Systems Protection Board (MSPB). Eligibility depends on factors such as your employment status, length of service, and the nature of the action. Appeal rights are typically explained in the final decision notice.
Get Help Today
If you’ve received a proposed disciplinary or adverse action, don’t wait. Contact us for experienced legal representation at (703) 668-0070 or click here.
IT violations and security clearance risks under Guideline M
Misuse of information technology (IT) is a common and often underestimated reason security clearances are denied or revoked. Many clearance holders assume IT violations are merely workplace issues, but under Security Executive Agent Directive 4 (SEAD 4), improper use of IT systems is evaluated under Guideline M and can place a clearance at serious risk. This can happen even when no classified information is involved, and even when the conduct occurs on unclassified or employer-provided systems.
As a security clearance attorney, I regularly see otherwise strong cases jeopardized by avoidable IT and AI-related mistakes.
Why IT Misuse Is a Serious Security Clearance Issue
The government relies on cleared personnel to handle sensitive information responsibly and follow rules designed to protect national security systems. Misuse of IT systems raises concerns about judgment, reliability, trustworthiness, and willingness to comply with rules. Guideline M is not limited to classified systems. It applies broadly to the improper use of any government or employer-provided information system, including unclassified networks.
Common IT Violations That Trigger Guideline M Concerns
Some of the most frequent problems I see include:
- Downloading or transferring data without authorization
- Using removable media without required approval
- Accessing systems or data without a valid need-to-know
- Circumventing security controls or monitoring systems
- Sending sensitive information through unauthorized email accounts
- Using government systems for prohibited personal activities
- Installing unauthorized software or applications
- Inputting sensitive data into unauthorized AI tools
- Bringing personal mobile devices into secure areas without permission
In many cases, individuals do not view their conduct as serious misconduct until it becomes a clearance issue.
Does Intent Matter in Guideline M Cases?
Not entirely. Adjudicators distinguish between intentional misconduct and negligent or careless behavior, but both can raise concerns. Knowingly bypassing security controls or accessing data without authorization is potentially very damaging. However, repeated carelessness or failure to follow IT policies can also suggest poor judgment. An adjudicator may see potential risks for both intentional and negligent IT security issues.
One-Time Mistakes vs. Patterns of Behavior
As with other adjudicative guidelines, frequency and recency matter. A single, isolated incident (or a few smaller incidents) especially where they were promptly reported and corrected is far easier to mitigate than a pattern of violations that were discovered by an agency or employer.
Multiple incidents, even minor ones, can indicate disregard for rules and procedures. That pattern can be more damaging than one serious lapse.
Why Failing to Report IT Violations Makes Things Worse
Failure to report an IT violation often creates a larger problem than the violation itself. Many clearance holders harm their cases by attempting to minimize, conceal, or “handle quietly” an incident that later comes to light. Unreported misconduct can raise Personal Conduct (Guideline E) concerns in addition to Guideline M issues. When an incident occurs, timely self-reporting and cooperation matter. Reporting the issue is critical. However, if the situation involves criminal issues you will want to consult with counsel immediately.
How Does Emerging AI Use Affect a Security Clearance?
Unauthorized use of artificial intelligence (AI) tools can raise serious security clearance concerns. We are increasingly seeing cases where individuals input sensitive or classified information into unauthorized AI systems, leading to investigations and potential clearance revocations.
Clearance holders must understand applicable policies, seek guidance from supervisors or security officers, and think carefully before using any AI system with work-related information. While AI may eventually be integrated into approved government systems, that is not the current reality for most clearance holders.
How Guideline M Concerns Can Be Mitigated
Mitigation of Guideline M cases focuses on responsibility and corrective action. Helpful factors include:
- Prompt self-reporting of the incident
- Cooperation with security and IT personnel
- Evidence the conduct was isolated or unintentional
- Completion of remedial training
- Additional efforts to show that you won’t repeat the same mistakes again
- Clear understanding of policies going forward
- Passage of time without further incidents
Adjudicators want to see that the issue is understood and unlikely to recur.
When to Speak with a Security Clearance Attorney
If you are unsure whether an IT incident must be reported or how it may affect your clearance, it is important to seek guidance before taking action. Early legal guidance can help protect both a clearance holder’s rights and their long-term eligibility. When security concerns arise involving potential misuse of information technology, it is important to get legal advice quickly. Clearance holders have multiple duties to the government, their employers (and also to themselves). Navigating a difficult situation involving IT misuse often requires advice from professionals.
Frequently Asked Questions
Can unclassified IT misuse affect my security clearance?
Yes. Improper use of employer or government information systems can raise concerns under Guideline M even when no classified information is involved. Misuse of unclassified networks, systems, or data can still reflect poor judgment, unreliability, or unwillingness to follow security rules, all of which are relevant to clearance eligibility.
What is Guideline M (Use of Information Technology Systems)?
Guideline M is the adjudicative guideline used to evaluate misuse of information technology systems during the security clearance process. It focuses on whether an individual’s conduct demonstrates poor judgment, unreliability, or a lack of willingness to comply with rules designed to protect information systems, whether classified or unclassified.
Do I have to report an IT policy violation if it seems minor?
Often, yes. Failure to report an IT violation can create more serious clearance problems than the underlying conduct itself. Unreported misconduct may raise additional concerns under Guideline E (Personal Conduct). When in doubt, follow reporting requirements and seek guidance promptly rather than attempting to handle the issue quietly.
Does one IT mistake automatically revoke a security clearance?
No. A single mistake does not automatically result in clearance revocation. Adjudicators consider the totality of the circumstances, including frequency, recency, and response. An isolated incident that is promptly reported and corrected is generally easier to mitigate than repeated violations or attempts to conceal misconduct.
Does intent matter in Guideline M cases?
Intent matters, but it is not the only factor. Intentional misuse of IT systems can be especially damaging, but repeated carelessness, negligence, or failure to follow IT policies can also raise serious security concerns. Both intentional and negligent behavior may negatively affect clearance eligibility.
Can using AI tools jeopardize a security clearance?
Yes, if the AI tool is not authorized or if sensitive, proprietary, or classified information is entered into it. Clearance holders should follow applicable policies, seek guidance from supervisors or security personnel when uncertain, and avoid using AI tools with work-related information unless explicitly permitted.
What factors help mitigate Guideline M concerns?
Mitigating factors may include prompt self-reporting, cooperation with security and IT personnel, evidence that the conduct was isolated or unintentional, completion of remedial training, demonstrated understanding of applicable policies, and the passage of time without further incidents.
When should I contact a security clearance attorney about an IT incident?
It is often advisable to contact a security clearance attorney promptly when an IT incident could affect clearance eligibility, involves allegations of intentional misconduct, includes potential criminal issues, or when you are unsure how to report or respond. Early legal guidance can help protect both your rights and your clearance.
Financial security concerns are the most common issues which can result in the inability to obtain or the loss of a security clearance. As a result, it is very important that when a clearance applicant or holder runs into financial issues that they have a security clearance attorney assist and them with respect to the security clearance process. In security clearance cases, financial issues are generally referred to as Guideline F cases. In Guideline F cases, the government’s concern is generally focused on how a person has handled his or her finances and/or his or her vulnerability to financial manipulation given a pattern of overspending or debt.
Avoid Security Issues Involving Financial Concerns
The criteria in Guideline F cases has somewhat changed over the last year with the introduction of Security Executive Agent Directive (SEAD 4) (the new Adjudicative Guidelines governing security clearances). This article discusses some potential tips for those facing financial concern issues in the context of a security clearance matter.
8 Tips to Consider
The following are 8 tips to help an individual minimize their risk of losing a security clearance on the basis of financial considerations:
1. Stay Current on Debts and/or Make Arrangements with Debtors
Most security clearance clients seek our assistance when they have had multiple bills that are past due, delinquent, in collections, or have been charged off. In some cases, the debts have been ignored. In Guideline F cases, the existence of multiple, unpaid debts seems to be the most usual reason for the loss or denial of a security clearance. It is important to gain control of your finances in such situations in order to attempt to keep your security clearance.
2. Pay and File your Taxes
Individuals in tax trouble or who fail to pay and/or file their taxes take a big risk in losing their security clearance. Tax issues tend to be viewed as more significant for security clearance purposes than regular debts because they are owed to the government. If outstanding taxes or tax liens are too much for the individual to pay off all at once, it is important to try to work out a resolution plan with the IRS or state tax agency and show good faith towards resolving these debts in order to keep or obtain a security clearance.
The government takes a very skeptical view of a clearance holder or applicant that has not resolved their taxes or at least attempted to do so. SEAD 4 also provides a new defense to mitigate a security clearance financial issue involving taxes when there is evidence that the taxpayer has sought to resolve the tax issues.
3. Keep an Eye on your Credit Report
Often times, an individual has encountered difficulties in the security clearance process because incorrect information is listed on his or her credit reports. Errors in credit reports are quite common. However, these errors can also lead to security clearance denials or other issues being raised by the Government. As a result, it is important for an individual applying for or holding a security clearance to keep a watchful eye on his or her credit report for errors and potential problems.
If a debt is inaccurate, it is important for an individual to dispute the debt as soon as possible and keep records of all disputes and efforts to demonstrate that a debt does not belong to an individual. Sometimes, we have had clients write letters to supposed debtors asking them to show proof of debt.
4. Work with Creditors
It can be easy to ignore a creditor, especially where the debt was part of a dispute, but it is always better for a clearance holder or seeker to get ahead of his or her credit problems than to wait until he or she receives notice of a possible denial of a security clearance. An individual who recognizes a debt problem or allegation early and works towards resolving it early and before a clearance issue is raised tends to be given more credit towards the granting of the clearance as opposed to an individual who starts the process after he or she receives notice of the potential loss of the clearance.
Even if a creditor is non-responsive, it is important to try multiple times to communicate with the creditor in an effort to resolve these issues. The key is to document (and keep copies) of the individual’s attempts to document attempts to resolve a debt.
5. Don’t Overspend
Having too many debts can put an individual at risk of losing a security clearance. If an individual is living beyond their means, this can be a security concern and potential coercion. To the government, overspending can indicate that the individual is living beyond his or her means or could be susceptible to foreign financial assistance.
6. Credit Counseling and Classes Can Help
If an individual falls behind in his or her debts, or taxes it is still important to show how that individual is working (or has worked) to get back on a healthy financial track in order to alleviate concerns about the individual’s ability to hold a security clearance. Taking meaningful credit classes or engaging in credible credit counseling can help mitigate security concerns by showing the affirmative steps taken by an individual to get better control over his or her finances and be responsible with their finances.
7. Report Major Financial Issues to Security Officers
If and when major financial issues arise, it can be important to report them, in advance, to an individual’s security officer. Doing so in appropriate situations can be used as evidence of mitigation for security concerns. For example, if a bankruptcy arises, that is an important issue that should be raised with a security officer.
8. Demonstrate Financial Stability
When and if security concerns under Guideline F arise, be prepared to demonstrate that the individual lives within their means, has developed a policy for dealing with spending and debt (e.g. budget planning). The more that an individual can show that they live within a manageable financial lifestyle, the better.
Contact Us
When facing financial consideration security concerns it is important to have the assistance and advice of counsel. We represent individuals in security clearance matters. If you need assistance with a security clearance issue, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.
Security clearance upgrades raise potential issues for many clearance holders. For many federal employees, military members, and government contractors, moving from a Secret Clearance to a Top Secret (TS) or Sensitive Compartmented Information (SCI) clearance can lead to higher-paying positions and more career growth. But with these opportunities comes deeper scrutiny when it comes time for adjudication.
A clearance upgrade is not automatic, and even small issues can slow down the process or create avoidable problems potentially affecting all of your security clearances. The following are some practical tips to consider as you seek a clearance upgrade.
Enhanced Investigations Occur When Upgrading to a TS or SCI Clearance
While all security clearances require an investigation, they get more rigorous as the clearance level gets higher. A TS clearance involves a much more in-depth background investigation than a Secret-level clearance does. A TS investigation includes more extensive checks into finances, foreign contacts, travel, and personal conduct. If your position requires SCI access, expect additional steps, which may include a polygraph examination and a separate vetting process depending on the agency involved. In my experience, the jump to SCI is more rigorous than moving to a TS from a Secret-level clearance.
Submission of a New SF-86 Required
In preparing for the upgrade, you should review and update your SF-86/eQIP/eApp. The Standard Form 86 (SF-86) is the foundation of your entire clearance investigation. When upgrading your clearance, you will likely be required to submit a new or updated version of the form. Mistakes on this form are one of the most common causes of delays.
Some frequent security issues include:
- Forgetting to list foreign travel, relatives, or contacts,
- Omitting financial debts or delinquencies,
- Failing to disclose past drug use or arrests,
- Previous disclosures missing from prior SF-86 forms,
- Leaving out previous addresses, employers, or supervisors.
A SF-86 is a legal document. Omissions, even accidental, can raise concerns about truthfulness that are harder to mitigate than the underlying issue. One of the most frequent issues we run across is where a clearance holder simply repeats the same information from an older SF-86 without realizing that changes have occurred since the last investigation.
Address Any Financial or Foreign Influence Issues Early
Before upgrading, attempt to anticipate any new security concerns that could come up and try to resolve or mitigate them in advance. Two of the most common reasons for clearance delays or denials are: (1) Guideline F (Financial Considerations); and (2) Guideline B (Foreign Influence). It is important to address these two issues fully and directly if they arise.
If you have family overseas, dual citizenship concerns, or foreign assets, be upfront and prepared to demonstrate continued loyalty to the United States and to demonstrate that you are not subject to undue foreign influence. Additionally, if you have had credit problems, debt collection accounts, or a history of bankruptcy, gather documentation showing that you have resolved or are responsibly managing your finances.
These issues will almost always come up in an upgrade investigation, and it is important to get ahead of them where possible.
More Intensive Interview and Possible Polygraph Process
As mentioned above, during a TS investigation you will be interviewed by an investigator who will review your SF-86, clarify information, and discuss any potential issues. If SCI access is required, you may also undergo a counterintelligence or lifestyle polygraph. These examinations assess honesty and identify potential security vulnerabilities. Be honest, calm, and forthcoming; investigators are typically more concerned about dishonesty than about conduct that occurred years ago.
Importance of Avoiding New Security Issues During Investigation
Your clearance upgrade is not complete when you submit your SF-86. You remain under review for the upgrade until adjudication is complete. If new issues arise you may have to complete an SF-86C or other agency-specific paperwork.
During this time, avoid creating new potential security concerns such as:
- Taking on significant debt,
- Using illegal drugs (marijuana) even in states where they are “legal” under state law,
- Getting involved in criminal or domestic disputes,
- Failing to report foreign travel or contacts.
Encountering new security concerns while your upgrade is processing can significantly delay or impede your investigation so do your best to avoid any new issues.
Clearance Upgrade Rights if Issues Arise
If the agency has unresolved concerns, you may receive a Statement of Reasons (SOR) or a Letter of Intent to deny or revoke your clearance (LOI). If this happens, you have the right to respond and appeal. The process varies between federal employees, military members and government contractors. In fact, it is very important that you respond given that adverse issues can affect not only the upgrade but your existing security clearance.
Experienced security clearance counsel can help you prepare a thorough SOR or LOI response which includes mitigating evidence and a detailed rebuttal. Many clearances that initially appear “at risk” are ultimately granted after a well-supported rebuttal and/or a personal appearance.
Continue Good Clearance Habits After Upgrade
Once your TS or SCI clearance is approved, your responsibilities continue. You will remain subject to continuous evaluation, and your agency may still conduct periodic reviews. However, you can relax knowing that the adjudication is complete. If you are upgrading to a TS, you may have to repeat this process again if you later need an SCI.
Contact Us
Upgrading from a Secret to TS or SCI clearance is a significant step for an individual’s career growth. It is crucial to handle the upgrade process with care. If you anticipate possible security concerns, financial, foreign, or otherwise, address them early and seek the assistance of a security clearance lawyer. Please contact us here or at (703) 668-0070 if you need any security clearance assistance.
CIA Security Clearance Process: What Applicants Need to Know
The CIA security clearance process is a rigorous background investigation designed to ensure that individuals entrusted with sensitive national security information are reliable, trustworthy, and loyal to the United States. Unlike standard security clearances with other federal agencies, the CIA process is highly individualized and includes enhanced vetting, interviews, and often a polygraph examination. This guide explains how the CIA security clearance process works, how long it takes, why applicants may be denied, and what options exist if a clearance is rejected.
CIA Security Clearance Process
The CIA is one of those federal agencies with its own, very unique, security clearance process. As noted above, in addition to security clearances processed by the CIA, many other federal agencies maintain their own procedures and personnel that process their own security clearance decisions for federal employees (e.g. NGA, DIA, DOD, NRO, DOJ, etc). It is important to be familiar with each process when appealing an adverse security clearance decision from that particular agency. This article, as noted above, focuses on security clearance appeals for government contractors at the CIA.
The Clearance Appeals Process at the CIA for Contractors
The security clearance process at the CIA for government contractors is different than the one utilized for DoD employees, but based on many of the same underlying clearance principles and the same Executive Order (EO 12968). The following illustrate the usual steps in the security clearance review process for those seeking to obtain or retain a CIA security clearance when they are faced with security clearance concerns. The CIA security clearance process is managed by their clearance appeals office. Contractors have the right to counsel before the CIA during the different stages of the security clearance appeals process.
First Step: Notification of Security Disapproval
When a clearance holder has a security clearance issue with the CIA, they will normally receive a notification of disapproval letter, usually sent on blank letterhead, listing the security concerns at issue and other rights in a Memorandum. The specificity of the security concerns at issue varies at this agency, so it is important to obtain as much information as possible in order to address the concerns.
Review rights generally include the ability to obtain documents (i.e the right to request the Investigative File) upon which the revocation or denial is based within 10 days (this is subject to change by the CIA) and the ability to request a personal appearance during that timeframe. A personal appearance is an administrative hearing security personnel at the CIA. An individual can also respond solely in writing and waive the personal appearance. A personal appearance is highly recommended in most types of cases before the CIA. When a personal appearance is requested, the contractor is placed in line for the hearing process, which can take a bit of time.
Second Step: Receipt and Review of the Investigative File
If the individual has requested the Investigative File from the CIA, the individual will be provided with the documentation relied upon by the agency in denying the request for security access. Many portions of the file may be redacted (in some cases there will be many redactions) but one can usually understand the issues that need to be addressed. When the Investigative File is finally received, it is important to prepare to respond with a written response and to start considering the issues for the personal appearance at the CIA as the time for the presentation occurs.
Third Step: Responding to the Security Concerns in Advance of the Personal Appearance
When the Investigative File is finally received, the individual will generally want to provide a written response in preparation for the personal appearance. It is usually important to provide supporting documents, in advance, to give the adjudicator(s) time to review them in advance of the personal appearance. The documents usually need to be provided prior to the scheduled appearance although agency personnel are helpful and flexible. The CIA follows the Adjudicative Guidelines set forth by the Directive of National Intelligence in Security Executive Agent Directive (SEAD) 4 when reviewing security clearance matters. Generally, the focus of the appeal should be on information that disputes the events (or facts) listed that existed, but were not known, at the time of the clearance denial.
Fourth Step: The Personal Appearance Meeting
The next step in the CIA security clearance appeals process is for the individual to present their response to security personnel during their personal appearance, typically held at agency facilities or online. When the CIA decides to hear the personal appearance, the individual or their counsel will be contacted by a CIA attorney or other representative in advance to schedule the presentation. The personal appearance should be handled with the assistance of an attorney. These types of presentations typically take about an hour in length and are usually attended by security personnel (on behalf of the security officer) and counsel present.
If in person, it is usually important to arrive early to ensure that the individual is able to make it to the meeting room in time. The individual seeking to overturn the initial decision should be prepared to respond to the concerns at issue and also for potential questions by the security personnel. The security personnel will introduce themselves at the start of the hearing, explain the process and then permit the individual and/or their attorney to present the personal appearance. The security official then takes notes and makes a record of the response for the agency’s later review and consideration and for the individual’s permanent security record.
It is important to make a full record in the written response and at the personal appearance for both the immediate appeal and also for future security clearance applications.
Additionally, it is important to note this agency now offers remote appeals in many cases, online. If the Personal Appearance is conducted online, you will be given a link to attend the meeting on the date scheduled. The rest of the virtual personal appearance process remains much like in-person hearings.
Fifth Step: Receipt of Step 1 Decision
Following the personal appearance, the CIA will then issue you a decision either upholding or overturning the original security disapproval. If disapproved, then you will have the option of appealing to the Second Step appeals level, where a panel of 3 agency officials will review the adjudicator’s original appeal determination.
Sixth Step: File a Step 2 Appeal
Generally, the best attempt to overturn the disapproval is at the initial stage. However, in some cases it is important for the individual to appeal an initial adverse decision (either an adverse decision from a written response or an adverse decision issued after the personal appearance) to the next step of the clearance process. The appeal, if filed, should generally be filed within 10 days of receipt of the initial unfavorable decision. The CIA does change deadlines from time to time so it is important to review your paperwork in determining due dates. The odds on appeal are typically less than during the initial stage, so it is important to address clearance issues as early in the process as possible.
Seventh Step: Step 2 Decision
If you seek a second step decision in a security clearance appeals case, then after a number of months, depending on the agency’s caseload, you will receive a final decision. This decision will either uphold the original disapproval or reverse it. Either way, the decision is final.
Eighth Step: Reapplication
If a security clearance by the CIA is ultimately denied, then reapplication is possible. Timing is important to consider here. The individual usually has to wait a 1-year period from the original security disapproval date in order to re-apply. Not all security issues can be resolved or mitigated in a year, and can take more time, but the reapplication process can ultimately lead to obtaining a CIA security clearance if previously denied. It is important to keep in mind that an individual contractor cannot re-apply for a new security clearance with the CIA while still in the appeals process. To do so, they will likely have to withdraw the appeal in order to re-apply. If the individual has gone through the Step 2 appeals process and been denied, they are very likely past the 1-year period and can reapply then.
It is important to consult with counsel on this issue.
Contact Us
When an individual is facing security clearance issues at the CIA or before another federal agency it is important to obtain legal advice and potential 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.
