For many federal employees a security clearance is a requirement of employment. When a clearance is denied or revoked after the appeals process is exhausted, the federal agency will often move forward with a proposal to remove the employee from their position unless a suitable reassignment is available.
Because of this risk, it is extremely important for federal employees to actively protect and defend their security clearance at the earliest stage of a security investigation or denial.
At Berry & Berry, PLLC, our attorneys regularly represent federal employees nationwide in security clearance matters and federal employment disputes. Learn more about our federal employment practice.
What Happens When a Federal Employee Loses a Security Clearance?
Many federal positions, particularly in defense, intelligence, and law enforcement require an active security clearance as a condition of employment. If an employee ultimately loses that clearance, the agency must determine whether:
The employee can be reassigned to another position that does not require a clearance, or
The agency may remove the employee from federal service.
In many cases, reassignment options are limited or unavailable, which means that removal from federal employment becomes the likely outcome.
This reality highlights why it is essential for federal employees to seek legal advice early in the security clearance process before a security clearance is lost.
Our firm represents federal employees in matters involving security clearance investigations, denials, revocations, and appeals. Learn more about security clearance representation.
MSPB Appeals After a Security Clearance-Based Removal
Federal employees who are removed from their positions due to the loss of a security clearance often ask whether they can appeal the decision to the Merit Systems Protection Board (MSPB).
However, MSPB review in these types of cases is extremely limited.
The Supreme Court held in Department of the Navy v. Egan, 484 U.S. 518 (1988) that the MSPB generally does not have the authority to review the underlying merits of a security clearance determination. The Federal Circuit later reaffirmed this principle in Cheney v. Department of Justice, 479 F.3d 1343 (Fed. Cir. 2007).
In other words, the MSPB typically cannot second-guess a federal agency’s decision to deny or revoke a security clearance.
Limited Issues the MSPB May Review
Although the MSPB cannot review the security clearance determination itself, the Board may consider certain procedural issues related to the employment action.
For example, the MSPB may evaluate:
- Harmful procedural error that could have changed the outcome of a case (i.e. not following Agency policy).
Whether the agency had a formal policy requiring reassignment of employees who lose their clearance.
Whether a suitable reassignment position existed at the time of the removal.
Why Early Legal Representation Matters
Because the ability to challenge a removal based on a security clearance denial is limited, it is critical for federal employees to respond proactively to security clearance concerns.
Early legal guidance may help:
Address issues raised during the background investigation
Respond to a Statement of Reasons (SOR)
Prepare for security clearance hearings or appeals
Develop mitigation strategies under the Adjudicative Guidelines
Our attorneys at Berry & Berry, PLLC focus on representing federal employees in security clearance and federal employment law matters nationwide.
Contact a Federal Employment and Security Clearance Lawyer
If you are facing a security clearance denial, revocation, or federal employment action, it is important to seek legal guidance as early as possible.
Each security clearance case and federal employment matter involves unique facts, procedures, and deadlines.
Berry & Berry, PLLC represents federal employees, contractors, and military personnel in security clearance and federal employment matters throughout the United States.
📞 Phone: (703) 668-0070
🌐 Website: https://www.berrylegal.com
📩 Or visit our Contact Page to request a consultation:
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Our security clearance lawyers represent individuals with Special Access Program (SAP) issues and concerns. SAP access can be important for traditional federal agencies like the Department of Defense or for the Intelligence Community.
SAP access can be sought for both federal employees and government contractors.
Many clearance holders assume that once they have obtained a Top Secret/Sensitive Compartmented Information (TS/SCI) clearance, the hardest part of the clearance process is behind them. In reality, for some professionals, the next step, being considered for SAP access, introduces a new and often misunderstood set of requirements. The upgrade process is different than for those seeking to upgrade from a Secret clearance to a Top Secret clearance or other more traditional security clearance upgrades.
After many years of representing and defending security clearance holders and applicants, I have seen experienced professionals surprised by the additional scrutiny that accompanies seeking SAP access. Understanding how SAP differs from TS/SCI access can help clearance holders prepare for the process and avoid unnecessary delays or adverse outcomes.
What is a SAP?
A SAP is a program established for a specific class of classified information that requires safeguarding and access requirements that exceed those normally required for security clearance access. A SAP can be acknowledged or not acknowledged. The existence of higher-level SAP programs in certain federal agencies might not even be acknowledged.
A common misconception is that SAP access is simply a different type of security clearance (e.g. TS/SCI). In fact, TS/SCI is a security clearance eligibility determination, while SAP access is program-specific authorization layered on top of an existing clearance.
To be eligible for SAP access, an individual must already hold the appropriate clearance level, usually Top Secret, and have a demonstrated need to know. However, meeting those baseline requirements does not guarantee SAP approval. Each SAP has its own access criteria, security procedures, and approval authorities. It seems like no two agencies are the same.
Additional Scrutiny Involved for SAP Access
SAP access often involves enhanced vetting beyond the underlying TS/SCI investigation. This may include additional reviews of prior clearance history, candor, employment conduct, financial issues, foreign contacts, and prior reporting compliance.
Issues that were previously mitigated or resolved at the TS/SCI level may be reexamined in the SAP context. Think of it as additional scrutiny over the same issues. SAP authorities tend to apply a more risk-averse standard, particularly when programs involve especially sensitive technologies, operations, or intelligence sources.
A SAP Hypothetical
Consider a clearance holder who has maintained a TS/SCI clearance for several years without incident. During a prior reinvestigation, the individual disclosed a foreign national mother living overseas. The relationship was reviewed, mitigated, and ultimately deemed acceptable for TS/SCI eligibility.
When that same individual is later nominated for SAP access, the foreign family connection is reevaluated. Although nothing about the relationship has changed, the SAP authority determines that the potential risk, however remote, is incompatible with the program’s sensitivity. The individual retains their TS/SCI clearance but is denied SAP access and cannot fill the position.
This type of outcome is not uncommon and illustrates that SAP decisions often turn on program-specific risk tolerance rather than traditional clearance eligibility.
Foreign Influence Concerns, Contacts and Travel
For SAP access, foreign influence is a key concern. Foreign contacts and foreign travel frequently take on greater significance during the SAP approval process. Relationships or travel that were fully disclosed and adjudicated during a TS/SCI investigation may still be scrutinized anew.
Contacts involving countries with adversarial relationships with the United States can be especially problematic for those seeking access. SAP authorities may impose additional reporting requirements, restrict travel, or deny access altogether based on assessments that differ from standard clearance adjudications.
For obvious reasons, those adjudicating SAP access are especially concerned with individuals that could be susceptible to coercion from hostile countries.
Prior Clearance History is Reviewed Again for SAP Access
For clearance holders upgrading to SAP access, past behavior often matters as much as current circumstances. Security offices and SAP authorities frequently review whether an individual has complied consistently with reporting obligations related to finances, foreign contacts, criminal conduct, outside activities, and personal conduct.
In my experience, SAP access denials often stem not from disqualifying conduct, but from perceived lapses in judgment or candor. Even minor reporting failures can be viewed as indicators of unreliability when evaluated under SAP standards.
Limited Due Process and Appeals
Another important difference between regular security clearance eligibility and SAP access is the level of discretion afforded to program authorities. Think discretion. SAP access decisions are highly discretionary and may offer limited avenues for appeal or review. Some agencies, like the U.S. Air Force / Space Force, offer some level of SAP Access review. Many SAP programs offer the ability to rebut issues raised in writing. It is important to have a security clearance lawyer for these types of responses.
Unlike traditional clearance adjudications, SAP access determinations may not provide detailed explanations for denials or revocations. In others, an individual may be provided the investigative file which provides reasons for the denial. Clearance holders should understand that even a perfect TS/SCI clearance record does not automatically mean that they will be approved for SAP Access.
Furthermore, if you are denied SAP access it will not necessarily adversely affect your existing security clearance. I have plenty of clients who have been denied for SAP Access that still retain their TS/SCI security clearance.
Contact Us for Legal Assistance in SAP Issues
Upgrading from a security clearance (Secret, TS/SCI) to SAP access is not a routine administrative step and may require the advice of counsel. SAP access in unique with heightened scrutiny, much greater agency discretion, and fewer due process protections. Clearance holders who understand these differences are better positioned to navigate the process successfully. If you need legal assistance regarding SAP issues or security clearance matters, please call our office at (703) 668-0070 or reach us 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. You need an experienced NSA security clearance lawyer.
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.
The PA will be held before security official, a lawyer and some assistant personnel. You will be present with your lawyer if you retain one. The security official will let you know that they will submit their notes to the review authority.
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 NSA 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
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.
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.
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.
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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.
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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.
We often meet with federal employees and government contractors facing security concerns in connection with their security clearances. These employees often ask for us assistance in responding to a security clearance denial or notice of revocation. No matter the security concerns at issue, we find that it is always important and helpful for the individual to respond with character letters which help explain the personal character of the clearance holder or applicant to the adjudicator.
The more background that an adjudicator has on the good character of a person under security clearance scrutiny, the better.
The Whole-Person Concept
Character letter submission falls under the Whole-Person Concept, which is very important in security clearance cases. The Whole-Person Concept, in sum, is just an analysis of the person who is under review and their character and background. This Whole-Person Concept evaluation focuses on whether the individual, even with security concerns, should be deemed an acceptable security risk. This is where the concept of using character letters comes in. According to Security Executive Agent Directive 4 (June 2017) (SEAD 4), the Whole-Person Concept is best described as follows:
The adjudicative process is an examination of a sufficient period and a careful weighing of a number of variables of an individual’s life to make an affirmative determination that the individual is an acceptable security risk. This is known as the whole-person concept. All available reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a national security eligibility determination.
Adjudicators sometimes have the opportunity to personally meet applicants or clearance holders. However, in many instances, adjudicators never get to meet them and have to review a written submission. An adjudicator therefore needs some sort of basis on which to judge an individual’s character. We have seen administrative judges that are very grateful that they have some independent observations of an individual’s character. This is especially true where there is a clearance issue involving a person’s character or something about character that is at issue (i.e. alleged truthfulness in completing an SF-86). Guideline E alleged security concerns often directly relate to character.
What is a Character Letter?
A character letter is a letter usually drafted by a colleague, friend, family member, co-worker, community leader or just about anyone that one can think of who can describe the good character of the person undergoing a security clearance appeal. Character letters can come in many forms, such as affidavits, sworn declarations or just plain old letters of support. They should, at a minimum, be signed. I have found that emails tend not to be weighted too heavily in a review. The document itself should be personally signed by the reference. The idea behind character letters is that a security clearance adjudicator does not know the person under review and needs assistance in determining their character.
A character letter helps an adjudicator better understand the person that they are evaluating. The more detail a character letter can provide about the person, the better. The more character letters that one can prove, the better. I find that it is helpful when an adjudicator is presented with numerous affidavits, declarations or letters confirming the good character of a clearance holder or applicant.
What Should be Included in a Character Letter?
We are often asked about what should be included in a character letter. A character letter should have significant detail, if at all possible, about the person and any clearance-related events. Additionally, it is important that the letters not all sound the same or similar. The last thing that an adjudicator wants to see is a number of boilerplate letters that say the same thing or that say very little. A character letter needs to explain specifically how the individual knows the clearance applicant or holder, the period of time they have known them for, their observations of the clearance applicant or holder and if possible why they feel that the individual is worthy of a clearance even in light of any security concerns.
To the extent that each letter can tell a unique and positive recollection from the clearance holder’s background, the better. We often find that character letters citing specific prior examples of observed integrity or good behavior are often very helpful. A good character letter can go a long way towards mitigating security concerns that have been raised. This is especially so if integrity or honesty is at issue.
Different Types of Character Letters
While there are many types of individuals in one’s life that an employee can approach to write a character letter, the four below seem to be the most common:
- Letters from supervisors about good character and performance at work;
- Letters from friends or family about how a person who has had a security concern has changed (why the security concern is no longer an issue);
- Letters from friends, co-workers or family which talk about the credibility of the clearance holder or applicant; and
- Letters from church or charitable organizations about the character or involvement of a clearance holder or applicant.
These are just a few examples of potential types of character letters that might be helpful.
Approaching Friends and Supervisors for Character Letter Requests
Oftentimes friends or colleagues would like to help with submitting a character letter, but sometimes they are afraid to do so. Many times colleagues are also cleared so they fear that they might suffer some sort of retaliation if they write a letter in support of a clearance applicant or holder. That is simply not true. These character letters are appreciated by adjudicators (and administrative judges) and have no effect on the writer. The entire goal is to evaluate the applicant or clearance holder. Sometimes, where appropriate, it is helpful to explain the background of the clearance case and why they need a character letter from an individual ahead of time; it often helps them in writing a better and more comprehensive letter.
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When an individual is facing security clearance concerns it is important to obtain legal advice and legal representation. Our law firm advises individuals in the security clearance process and can assist with the character letter process. We can be contacted here or by telephone at (703) 668-0070.
In the world of security clearances, few phrases are as confusing or as stressful as “Loss of Jurisdiction.” You might see it on your clearance record in Defense Information System for Security (DISS) or Scattered Castles and wonder what it means for your job, your cleared career, and your eligibility moving forward.
The good news is this: Loss of Jurisdiction does not mean your clearance has been denied or permanently revoked. But it does mean your eligibility has been paused, and you must take specific steps to resolve it.
When Does Loss of Jurisdiction Occur?
“Loss of Jurisdiction” (commonly LOJ) occurs when the Defense Counterintelligence and Security Agency (DCSA) or another adjudicating federal authority no longer has the legal ability to make a determination about your security clearance. LOJ typically occurs when:
- You leave federal service or separate from the military while your clearance investigation is still pending.
- Your security clearance eligibility expires because the reinvestigation wasn’t completed before you departed.
- You had an open issue (financial, personal conduct, criminal, etc.) and left your position before a clearance adjudication was finished.
- A sponsoring employer removes sponsorship, leaving adjudicators without authority to continue the case (often occurs during a termination of employment).
Once jurisdiction is lost, your security clearance is essentially in a hold status. You cannot access classified information or be assigned to classified work until jurisdiction is restored and any remaining issues resolved.
What LOJ Doesn’t Mean
Because LOJ appears alongside denied and revoked statuses in security clearance databases, it can be very concerning, but it shouldn’t be mistaken for either of these two statuses. An LOJ does not mean that you failed a security clearance investigation.
Additionally, an LOJ doesn’t mean that your security clearance was revoked or that you have been permanently disqualified from holding a clearance. LOJ simply means there’s no active authority to complete or adjudicate your case. It’s an administrative pause in the status of your clearance, not a final decision about your ability to hold the clearance.
LOJ is Pretty Common
LOJ cases have increased in recent years for a number of reasons:
- Higher scrutiny under Continuous Vetting (CV) programs;
- Delays in reinvestigation timelines;
- More frequent personnel transitions between government contractors and agencies;
- Contractors unwilling to continue sponsorship when issues arise (frequent problem where contractors are often unable to bill work performed by those with security clearance issues);
- Employees separating before pending security concerns are resolved; and
- Sponsorship gaps during employment changes.
A security clearance is tied to active sponsorship by a contractor. When a sponsorship ends, no matter the reason, LOJ often follows. It is pretty common for LOJ to occur during the processing of security clearance appeals. In some cases, LOJ suspends the appeals process (e.g., DCSA). For other federal agencies, LOJ does not impede the ability to adjudicate issues involving a security clearance.
How to Address Loss of Jurisdiction
There is usually no quick fix to an LOJ, but there is a path back. The path back to active eligibility depends on your employment status and the nature of your case. Here are the key steps to attempt to remedy LOJ:
1. Obtain a New Sponsorship
You must first have an employer or agency willing to sponsor you in order to reactivate your security clearance. Without sponsorship, the government cannot reopen your investigation, review an incident or restore jurisdiction. Once sponsored, the new employer can request: (1) reinstatement; (2) reinitiation; or (3) reopening of the prior investigation. Sometimes the new sponsorship requires the individual to be evaluated through the submission of a new SF-86 and/or the reconsideration process.
It is recommended that if you find yourself in LOJ status that you consider all types of cleared positions because some government contractors are more open to working with you than others.
2. Attempt to Resolve (or Work on) the Security Concerns
If your LOJ stemmed from security concerns like financial delinquencies, unresolved criminal matters, or personal conduct concerns, address them before a new review begins. Documentation showing corrective action taken with respect to security concerns can significantly strengthen your case.
It is often helpful, where possible, to check with your former security officer or a potential sponsor’s security officer to check on the status of your clearance and to see whether you have been flagged.
3. Organize Relevant Documentation
It is often the case that an individual who moves into LOJ doesn’t have the appropriate documentation ready when another opportunity to get cleared arrives. It is important to keep records regarding any security concerns. These can include, but are not limited to:
- Prior clearance eligibility determinations
- Investigation closing notices
- Statements of Reasons (if any)
- Rebuttals or mitigation evidence
These can assist your new security office reestablish jurisdiction quickly and accurately.
4. Seek Information through the Privacy Act
In some cases, it may be helpful to seek information about issues or flags on your security clearance by submitting a Privacy Act request seeking clearance database records in DISS, Scattered Castles or other federal agency adjudicative databases.
Attempting to Prevent Loss of Jurisdiction
While LOJ is not always avoidable, you can reduce the chances of falling into LOJ status:
- If separating from service, try to complete your investigation beforehand.
- Maintain communication with your FSO, especially when switching employers.
- Keep your SF-86 information current, clean, and ready to submit (adjudicators may have you submit a new SF-86 instead of reviewing a prior incident report).
- Stay on top of any security concerns that may have been relevant when you went into LOJ.
The more proactive you are, the smoother future adjudications can be.
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Loss of Jurisdiction is often misunderstood, but it doesn’t have to derail your career. Think of it as a procedural hold: the government simply lacks the authority to continue your clearance case until you regain sponsorship and provide any needed information. With the right steps, principally consisting of securing a new sponsoring employer, addressing underlying concerns, and preparing documentation you can move forward with your cleared career. LOJ isn’t the end of the road. It’s a problem that can be fixed.
If you are a federal employee or government contractor whose security clearance is under review and you are in the process of having your case heard before the Defense Office of Hearings and Appeals (DOHA), there are a number of considerations that should be made as you move towards the hearing phase. Before DOHA, an applicant for a security clearance (or clearance holder) should be well prepared, in advance, to present their case at a hearing. You should think of a DOHA hearing as less formal litigation but very similar to appearing in court. There is a judge and the government is represented by an attorney who is referred to as Department Counsel. You should be represented by a security clearance lawyer.
It is often the case that individuals come unprepared for a DOHA hearing and wish they had consulted a security clearance attorney earlier. Having legal counsel represent you in this forum is highly advised. The following is a typical chronology of a hearing before DOHA and an administrative judge. Keep in mind there are some slight differences in the process between federal employee and government contractor clearance proceedings before DOHA.
Chronology of a DOHA Appeal
The process and procedures for a DOHA administrative judge hearing vary, depending on each case, and certain procedures can also vary between individual judges. The following is a chronology of what you might expect in a typical DOHA hearing case:
Pre-Hearing DOHA Process
1. The DOHA Hearing process generally starts when the individual receives notice from a government attorney at DOHA introducing themselves and indicating that they plan to use certain exhibits against the person during the hearing. This will begin the process of setting eventually setting the hearing date and receiving notice of the administrative judge assigned.
2. Prior to the date of the DOHA hearing, the clearance applicant (if in person) should ensure that they have DOHA contact information available to ensure that they have an escort to the hearing room, which, in the Washington, D.C. area is in Ballston, Virginia. You will want to arrive early with your witnesses to ensure that you are on time for the proceedings and have enough time to clear security. Also, keep in mind that most hearings have moved to a virtual platform so very few hearings are in person these days.
3. The Applicant must make sure that they have all of their exhibits submitted to the Department Counsel in advance (so that they have a chance to prepare their case), according to DOHA rules. These exhibits will be reviewed by Department counsel and then the government will have the opportunity to object or comment on them before they are entered into the hearing record. Judges also require advance submissions of exhibits so that they can prepare to hear the case.
Start of the DOHA Hearing
4. When you enter most formal DOHA hearing rooms, typically the applicant for a security clearance will on the left hand side of the hearing room / table and the Department Counsel (if there is one) will sit on the right. The court reporter will be to the right of the administrative judge and the witness stand will be on the left. As noted above, DOHA has also moved recently to permit most of the hearings to take place virtually through Microsoft Teams which has changed some of the dynamics for those cases.
5. The witnesses (other than the applicant for a security clearance) will almost always be sequestered before they testify. They will then be escorted into the hearing room to testify, one at a time. Again, in virtual settings, witnesses are sequestered electronically (cannot participate or view virtual hearing until their testimony). When the judge is ready to hear a virtual witness they are allowed into the electronic hearing room.
6. The witnesses, in turn, will usually testify to the left of the DOHA administrative judge (when observing the procedures from the applicant’s table). If held online, this really doesn’t apply.
7. Typically, the administrative judge will hear any procedural issues first, from both sides, before starting the hearing. There could be witness issues or evidentiary issues which need to be discussed before the start of the formal proceedings.
8. Exhibits will then generally be reviewed for marking and admissibility by the administrative judge. Typically, both sides have reviewed the other’s exhibits before the hearing and most exhibits are generally agreed to. While there is the ability to object based on evidence, this ability is more limited in a DOHA hearing.
Opening Statements and Testimony
9. A DOHA hearing will usually then start with opening statements if a security clearance applicant is represented by an attorney. The Department Counsel will often go first. The clearance applicant’s attorney will next offer their statement if they chose to do so.
10. Typically, while the Department Counsel usually presents their case first, they tend not to usually put on their own case but instead examine the security clearance applicant on cross-examination. In other words, their case will typically rely on information gained from cross-examining the security clearance applicant. As a result, the security clearance applicant or clearance holder will present their case first.
11. The first witness called by the applicant’s security clearance attorney will often be the applicant who is the most important of all of the witnesses and will usually take the most time of all of the witnesses in testimony. Since the security concerns principally involve the person at issue it makes sense that their testimony would take the longest. In other cases, the best strategy is to call the applicant last for testimony.
12. Following an examination by the applicant’s attorney, the government’s attorney and/or the administrative judge will question each witness. The examination will mostly center around the facts and issues related to the Statement of Reasons (SOR) or Intent to Revoke issued earlier in the case.
Closing Arguments and Extended Record
13. Once the witness testimony is complete, the parties may be asked to provide their closing arguments in the case. This typically takes the form of closing arguments, but written briefs, if a key legal issue is involved, are possible.
14. Following closing arguments, the record will be closed (unless extended for some reason – i.e. the need to extend the closing date for the submission of additional exhibits that are needed). If the hearing remains open for additional exhibits this can last an addition 2 weeks to 4 weeks, in general before the record is closing.
Following the DOHA Hearing
15. Usually, after 2-6 weeks, a copy of the transcript will be sent to the clearance attorney’s attorney or applicant and government counsel for review.
16. Depending on the employment status of the person seeking the security clearance at issue, federal employee or government contractor, the administrative judge will then issue a recommended or final decision. For federal employees, the security clearance decision issued will be a recommended decision for final review by a federal agency’s personnel security appeals board (PSAB). For government contractors, the administrative judge’s decision issued is final, but the losing party has the opportunity to appeal to DOHA Appeal Board.
17. Depending on the type of employment involved, if an employee is denied a security clearance, in many cases, depending on circumstances, they can re-apply through the reconsideration process a year later.
18. Even if a difficult security clearance case is not won in the initial appeal, depending on the individual circumstances, an individual can increase their chances of eventually obtaining a security clearance by challenging the initial negative determination and putting on a strong case. Doing so can lay the foundation for eventually recovering or receiving a security clearance.
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Each DOHA hearing before an administrative judge is unique so individuals are advised to have counsel represent them during the DOHA hearing process. If you need assistance with a security clearance issue, please contact our office at 703-668-0070 or here to schedule a consultation.
