Hearings Before the Defense Office of Hearings and Appeals (DOHA)

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.

Divorce is one of life’s most difficult events, affecting individuals emotionally, financially, and professionally. For security clearance holders, it also raises an important question. Does your divorce affect your security clearance? It is important to understand that a divorce by itself does not automatically lead to security concerns with a security clearance. However, they can in certain circumstances. The key for a cleared individual is how they handle their divorce (financially, legally, personally). This can make all the difference in maintaining your security clearance eligibility.

These issues come up for both federal employees and government contractors equally. While the rules for these two different types of employees are similar, most of the same principles apply to both.

Divorces for Security Clearance Holders

Divorces are difficult, but they add an extra layer of concerns for security clearance holders. In theory, a divorce should not really affect a clearance holder’s security clearance. However, it can. For example, if the divorce triggers circumstances that raise security concerns, then issues can arise. These can include domestic issues, financial issues and other types of conduct concerns that can arise from a divorce. When looking at a security clearance, the focus isn’t on the divorce itself, but how well the individual manages the issues that come out of the divorce. The critical issue to maintaining your security clearance with a potential divorce pending is to plan carefully and take steps to resolve potential issues ahead of time.

This can sometimes be easier said that done. However, it is important to take these steps to avoid the security clearance appeals process.

Potential Risks During the Divorce Process

1. Financial Issues

Financial issues remain one of the most common reasons clearance eligibility is challenged. Divorce can seriously disrupt your financial portfolio. A divorce often involves the division of assets, increasing financial obligations (child, spousal support), and altering income and living arrangements. In some cases, a divorce can alter credit scores. A divorce can potentially impact finances so much that it may signal potential vulnerability to possible coercion.

Some Mitigating Issues:

• Do your best to maintain current on all financial obligations (especially child support or spousal support).
• Try hard to avoid defaulting on debts or falling behind on payments.
• Work with creditors to resolve pending financial issues related to the divorce.
• Document your efforts and show proactive management of your finances (keep copies of all records).
• If your financial abilities change significantly, make sure you talk to your facility security officer (FSO) or security office as required.
• For federal employees, work with qualified counsel for resolving OPM benefits issues.

2. Conduct, Contentiousness and Courts

Contentiousness is one of the biggest issues we see in divorce cases involving clearance holders. Security clearance adjudicators are always evaluating whether you act with integrity and sound judgment in all of your dealings. A divorce involving highly contentious litigation, allegations of domestic misconduct, alleged abuse, protective orders, or erratic behavior can trigger security concerns Guidelines E and J of Security Executive Agent Directive 4 (SEAD 4). In contentious divorces involving custody and other serious issues, it is not uncommon for a spouse to file for a Temporary Protective Order (TPO) against the other spouse out of anger or a criminal complaint of abuse. Often a spouse is extremely angry and may involve the police.

These types of issues can lead to financially devastating outcomes for the clearance holder and spouse as it can result in the suspension or loss of a security clearance. Of all of the security clearance cases we have had over the years, involving divorce, it is the contentiousness that often causes the most problems.

Ways to Manage these Issues:

• Keep the divorce proceedings civilized (this can sometimes be difficult).
• Inform your divorce attorney that you need to keep the divorce proceedings as civilized as possible (otherwise things can get out of hand quickly).
• Make sure you comply with all court orders.
• Keep calm in dealing with your spouse and avoid (to the extent possible) arguments.
• Avoid letting disputes become public or uncontrolled.
• Avoid Posting Issues Involving the Divorce on Social Media.
• If allegations arise, respond responsibly, seek legal advice, and ensure your security office is appropriately notified if required.

Reporting the Divorce

Most security clearance holders must report major life events including divorce, changes in cohabitation, or significant financial changes, usually as soon as possible. Failing to report is itself a potential clearance issue. When in doubt, it is best to seek advice in reporting these issues. Transparency is always preferable to omission or concealment. Not doing so, in many cases, can lead to the potential loss of a clearance and for some federal employees, loss of a clearance or discipline. This is not a major issue and can be handled easily.

Tips for Protecting your Security Clearance During a Divorce

1. Hire Competent Attorneys: for both the divorce and security clearance issues. These are two different areas of law so it is important, when security issues arise that you also have a security clearance lawyer working in conjunction with your divorce counsel.
2. Be Proactive Financially: review support obligations, marital asset division, cohabitation changes, and ensure plans for your post-divorce finances.
3. Maintain Financial Obligations: continue to pay support, manage debt, make payments, negotiate payment changes where needed, document your efforts and changes.
4. Communicate with Security: as required, and be sure your SF-86 or equivalent is updated accurately and fully.
5. Manage Personal Conduct Issues: comply with all legal orders, avoid public disputes or behaviors that may raise questions about judgment.
6. Keep Calm: in interaction with your spouse. The less anger and contentiousness, the better.
7. Retain Documentation: retain proof of payments, settlement documents, compliance with court orders, records of support, and correspondence with your security office or FSO.

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In most cases, a divorce will not affect your cleared career. For security clearance holders, the key is how you manage the transition. If you hold a security clearance it is important to get legal advice from a security clearance lawyer. Security clearance lawyers often work with divorce attorneys to coordinate the best possible outcome. We can be reached here for a consultation.

It is very critical for security clearance holders to both handle and protect classified and other sensitive information properly. Improper handling of protected information can (and often does) cost security clearance holders their security clearance. Adjudicative Guideline K of the Security Executive Agent Directive (SEAD 4) governs the safeguarding and management of classified, sensitive, and proprietary information for security clearance holders. Among other things, Guideline K addresses behaviors such as unauthorized disclosure, negligent handling, or failure to comply with security protocols, all of which can undermine trust in an individual’s reliability and judgment.

Security Concerns Under Guideline K

Failing to properly follow established procedures for handling classified, sensitive, or proprietary information, whether through carelessness or intentional disregard, can signal potential issues with an individual’s reliability, judgment, or willingness to protect critical information. Such behavior is treated as a significant concern in determining eligibility for access to protected materials.

Some Examples of Protected Information Security Concerns Under Guideline K:

1. Deliberate or negligent disclosure of protected information to unauthorized persons (example: discussing classified information at a party with friends);
2. Storing protected information in any unauthorized location (example: storing classified information on an unauthorized thumb drive);
3. Transmitting protected information on unauthorized equipment (example: sending classified information from a classified email to your own private email address);
4. Modifying protected information in an unauthorized manner designed to conceal or remove classification markings (example: whiting out SECRET marking on documents and taking them home);
5. Viewing information from a secure system when the information is beyond the individual’s need-to-know (example: accessing a classified database that you have not been approved to access); or
6. Any failure to comply with rules for the protection of classified or sensitive information (example: failing to properly secure a SCIF).

Mitigating Factors When Violations Occur

The following factors are considered when evaluating whether concerns regarding classified information have been sufficiently mitigated.

1. Time and Unusual Circumstances: The behavior occurred long ago, was rare, or happened under unique conditions, making it unlikely to happen again or reflect poorly on the person’s reliability and judgment (example: the failure to secure a SCIF you are responsible for was a one-time occurrence);
2. Positive Response to Counseling/Training: The individual has completed counseling or security training and now shows a responsible attitude toward security duties;
3. Training or Instruction Issues: The violation happened because of poor or unclear guidance, not deliberate misconduct; or
4. Accidental: The breach was unintentional, promptly reported, did not result in a compromise, and isn’t part of a recurring pattern.

Some Favorable Clearance Determinations Under Guideline K

Example A: Applicant had seven security violations under Guideline K between 2007 and 2018, including unauthorized hardware installation, improper handling of classified material, and repeated unauthorized entry of a personal cell phone into a SCIF. He accepted full responsibility and implemented corrective measures to ensure compliance with security protocols. Over the past three years, he has had no further incidents. His performance record was exemplary, and both his supervisor and the company’s security manager support his continued access to classified information. Clearance granted. Copy is located here.

Example B: Applicant, a federal contractor, routinely took unclassified materials home to use for work or scrap paper to write notes on while working for a government agency. On one occasion, he inadvertently brought home a classified cover sheet mixed with unclassified documents. In a panic, he tore it up and ate it to avoid detection, failing to report the incident. He later disclosed it during a failed 2018 or 2019 polygraph to a different government agency and expressed regret. In 2020, he found a 2007 timeframe email marked “Confidential” among personal papers and voluntarily turned it in at a SCIF, though he did not file a formal report, mistakenly believing it was optional. He since acknowledged mishandling both incidents and expressed remorse. While both events raised concerns, they appeared to be minor, and no compromise of classified information was likely. Copy is located here.

Some Unfavorable Clearance Determinations Under Guideline K

Example A: Applicant entered a SCIF with a cellphone on five occasions between September 2015 and January 2017. Although each incident was inadvertent and quickly discovered, three were not promptly reported. She later disclosed an additional violation involving her company cellphone. Separately, she mishandled classified material twice by leaving a classified PowerPoint and document unsecured on her desk overnight. Despite a strong performance record, the pattern of security violations reflected a repeated disregard for procedures, raising concerns about future compliance. Clearance denied. Copy is located here.

Example B: Applicant was highly regarded professionally and personally, but has admitted to sharing unclassified proprietary information with a friend against policy, inadvertently bringing a cell phone into a SCIF multiple times, and removing a classified monitor without proper clearance. The intentional disclosure and removal of classified labeling remain serious breaches. Despite these incidents occurring over ten years ago and the applicant’s subsequent positive work performance and promotions, the severity of the mishandling outweighed the mitigating factors. Clearance denied. Copy is located here.

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If you run into security clearance concerns under Guideline K, there are many options for a potential defense. Please contact us at (703) 668-0070 or here to schedule a consultation.

Illegal drug use and misuse can be a crucial factor in obtaining or maintaining a security clearance. Adjudicative Guideline H of the Security Executive Agency Directive (SEAD) governs drug involvement and substance misuse. Drug use refers to the illegal use of a substance or the misuse of a legal drug in a way that deviates from prescribed medical guidelines. This Guideline also evaluates the impact of drugs on an individual’s ability to obtain or maintain a security clearance.

Today, while certain drugs are being decriminalized or legalized at the state level, individuals seeking or holding a federal security clearance must recognize that federal regulations have not changed to match state laws. In other words, compliance with state law does not equate to compliance with federal standards. Unfortunately, this has led to many security clearance problems over the past 5 years.

Laws and Regulations

The laws and rules governing drug use and holding a security clearance are up the President. The Supreme Court has made this clear. Presidents, over the years, have developed an evolving framework regarding drug usage and security concerns. In this, presidents have included illegal drug use as a basis to deny or revoke a security clearance. Security Executive Agent Directive (SEAD 4) governs the adjudicative guidelines used to determine an individual’s eligibility for access to classified information.

Adjudicative Guideline H: Drug Involvement and Substance Misuse outlines the considerations and concerns the government evaluates regarding any history or pattern of drug involvement. SEAD 4 governs federal employees, government contractors and military personnel.

Guideline H Security Concerns for Drug Use

The Government takes illegal drug use and prescription drug misuse seriously in the contact of security clearances. Drug abuse or dependence may increase the risk of unauthorized disclosure of classified information by impairing physical or psychological functioning. As a result, improper or illegal use of drugs raises questions pertaining to an individual’s willingness or ability to protect classified information and comply with the laws and regulations.

Guideline H of SEAD 4 focuses on the following areas of misuse

• The illegal use of controlled substances, including the misuse of prescription and non-prescription drugs;
• Use of substances that impair mental or physical functioning; or
• The use of substances used in a manner inconsistent with their intended purpose.

Drug Use Clearance Mitigation

Security clearance adjudicators consider many different types of mitigating factors when evaluating drug use or prescription use cases. There are too many to list here. However, here are some considerations when they evaluate a security clearance case for mitigation.

1. Recency/Frequency: Was the drug use long ago and was it an isolated incident? Was there a pattern or repeated use?
2. Voluntary Cessation and Abstinence: Has the individual abstained for a significant period of time? Is there a risk that the use can recur?
3. Acknowledgment: Has the applicant or security clearance holder accepted accountability?
4. Change in Environment: Has the individual dissociated from drug-using peers and environments where drugs might be used?
5. Medical context: Was prescription misuse related to an illness, and has it since stopped? Has the individual since obtained a legal prescription for the medication they used improperly before?
6. Rehabilitation and treatment: Was treatment necessary? If so, was it sought? Was it effective?

Drug Use in Light of Marijuana State Laws

Today, we all know that many states have legalized marijuana for recreational or medicinal use. However, marijuana use remains illegal under federal law, and its use usually triggers security clearance concerns. The problem is that Congress has not changed the Controlled Substances Act, which classifies all marijuana use as illegal. As a result, federal clearance forms, such as the Standard Form 86 (SF 86) or eAPP, continue to ask about marijuana use, despite the legality of its use at the state level. One of the most common security clearance issues that we see in our office are clients that believed that because state law permitted marijuana use that it was acceptable. The Government always responds by pointing to training given to individuals holding security clearance which shows the contrary.

Examples of Favorable Determinations

The following are a few examples of favorable drug use cases:

Example A: An applicant admitted to marijuana use during college and as a graduate student. He has since abstained, provided character references from colleagues and friends, and demonstrated a stable employment history. Clearance granted. Copy of decision is located here. 

Example B: Between March 2021 and September 2023, the Applicant used legal cannabidiol (CBD) products under a state medical program to treat chronic back pain. The products contained less than 0.2% tetrahydrocannabinol (THC), which was below the federal legal limit. He has since stopped using CBD, is under medical care with a new treatment plan, and has no plans to resume use. Clearance granted. Copy of decision is located here.

Examples of Unfavorable Drug Use Determinations

The following are just a few examples of unfavorable drug use clearance decisions:

Example A: Applicant deliberately used marijuana from 2013 to at least January 2022 and minimized its seriousness during the interview process. He stated that he intended to continue to use marijuana after being granted a security clearance. Clearance denied. Copy of decision is located here.

Example B: Applicant admits to using marijuana intermittently from 2011 to 2018, including use while employed in a position that prohibited drug use. He used marijuana recreationally and for post-surgical pain, continued associating with users, and lived with a roommate who used it regularly. Although he initially stated in a 2018 security clearance application that he intended to keep using marijuana, he later changed his position after learning it remains illegal under federal law. Applicant testified he has no intent to use it again. However, the administrative judge found that the applicant did not show the requisite character or judgment of someone who has the maturity, integrity, good judgment, and reliability necessary to access classified information. Clearance denied. Copy of decision is located here.

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Security clearance decisions under Guideline H depend heavily on the individual’s specific facts, history, and demonstrated efforts toward reform and abstinence. With the growing trend toward the decriminalization and legalization of certain substances, it crucial for applicants to be honest about prior drug use. If you are facing a security clearance review involving drug use or prescription misuse, you should seek experienced legal counsel familiar with federal clearance adjudications. We can be reached at (703) 668-0070 or by contacting us here.

Security clearance reciprocity is a federal government policy that allows security clearance holders to move between government agencies without undergoing a new security clearance investigation. By speeding up the process of obtaining a new security clearance at a new agency, reciprocity enhances national security without requiring a new security clearance investigation. It also saves the government significant time, money and delays.  However, the process does not always work as intended. Reciprocity often involves unpredictable decisions and may often not work as it was intended. The government would benefit from improving the transition process because it would be an asset to national security.

Primary Goal of Security Clearance Reciprocity

The primary goal of security clearance reciprocity is to make it easier to enable a federal employee, military personnel y or government contractors to transfer a security clearance from one agency to another, provided that certain conditions are met. Reciprocity, when it works, avoids unnecessary delays in national security work and helps conserve government resources. Furthermore, it makes life a lot easier for security clearance holders who do not have undergo a whole new investigation before beginning work when they already have one. Reciprocity, when it works, is a benefit from everyone.

What Rules Govern Security Clearance Reciprocity?

Security clearance reciprocity is governed by a number of government laws, rules and regulations. These start with Executive Order 13467, which provides that government agencies should use reciprocity for security clearances. Security Agent Executive Directive 7 (SEAD 7) implements EO 13467 reciprocity rules and provides specific criteria for accepting prior investigations and adjudications. Additionally, Section 3001 of the Intelligence Reform and Terrorism Prevention Act requires timely processing of security clearances and encourages reciprocity unless disqualifying information exists.

Reasons Why Reciprocity May Not Be Possible

In many cases, reciprocity isn’t available for security clearance holders. Below are some examples when an individual’s existing security clearance may not be eligible for reciprocity and where gaining agencies may need to conduct additional security clearance processing.

• You are seeking to move to a higher-level security clearance;
• Your existing security clearance was granted on an interim, limited or one-term basis;
• The date of your last investigation, upon which your existing clearance is based, is older than seven years for Top Secret, 10 years for Secret, and 15 years for Confidential;
• The position for which you are being considered requires a polygraph (which was not the case previously) or a different type of polygraph exam than you have taken in the past;
• Your existing clearance was based on exception to standards (Appendix C, SEAD 4);
• You are currently cleared at the Confidential or Secret level, and the position for which you are being considered requires a Top-Secret level clearance; or
• The position for which you are being considered has Special Access Program (SAP) requirements (SAP access is treated very differently by each agency);

How Does the Security Clearance Reciprocity Process Work?

Reciprocity comes into play when the cleared individual seeks to move to a different agency. The individual will seek reciprocity for their existing security clearance. The gaining agency’s security office will check your eligibility in databases such as the Defense Information System for Security (DISS) or Scattered Castles (Intelligence Community clearances).

The gaining agency will then conduct a review of the adjudicative decision made by the original agency. If no flag or disqualifying information is present they will likely honor the prior adjudication. However, if  issues are discovered, the gaining agency may request additional information or simply deny reciprocity. If there are no issues, the individual’s clearance will then transfer and you will be given reciprocity.

The Limitations of Security Clearance Reciprocity

Security clearance reciprocity faces several issues. These include agency-specific requirements, the non-transferability of certain access levels, such as Sensitive Compartmented Information (SCI) or Special Access Programs (SAP), which often require separate adjudication, and challenges related to incompatible clearance databases across agencies. There is sometimes also a lack of trust between some federal agencies about the clearance investigations that they conduct.

The Government Accountability Office (GAO), in a 2024 report, mentioned this serious issue regarding reciprocity due to lack of trust among different agencies:

“According to ODNI officials, during their assessments of agencies’ national security background investigation and adjudication programs, they found that some agencies are not granting reciprocity. These agencies, according to ODNI, believe that other agencies accept levels of risk in their security clearance processes that are too high, resulting in a lack of trust in those agencies’ processes.”

The GAO Report also noted that another significant issue with reciprocity occurs in regards to communication by the government. Basically, the GAO found that government agencies need to do a better job communicating with government contractors when problems arise. A vast majority of contractors indicated that when problems arise, the government rarely communicates with them. This is a major area for improvement.

Examples of Clearance Reciprocity

A few  examples of how reciprocity can work:

1. Jim is a federal employee with a Secret level security clearance changing jobs within the Department of Defense (DOD) for a position requiring a Secret level clearance. In this example, the Secret clearance should transfer easily unless there are other issues that come up.
2. Samatha is retiring from the Army after a long career where she held a Secret security clearance and is going to work for a DOD government contractor where a Secret level clearance is required. In this example, Samantha’s reciprocity should be granted unless other issues arise.
3. Joan holds a Secret level security clearance with a DOD government contractor and seeks to go to another DOD government contractor which requires a Top-Secret security clearance. Reciprocity would not likely apply given that she would be going to a position with a higher-level security clearance in this example.
4. Jason has a Top-Secret level clearance with the Department of State (DOS) but is seeking a new position with the National Reconnaissance Office which requires a polygraph examination. Reciprocity would not likely be granted here given the lack of a polygraph examination in his previous position.
5. Kelly has an interim Secret clearance with the DOD and finds a new position with the DOS requiring a Secret clearance. It is unlikely that the interim clearance would transfer because it was not finalized. I say unlikely because reciprocity always seems to have possible exceptions.

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Security clearance reciprocity is intended to improve efficiency while upholding strict security standards. Under EO 13467, IRTPA, SEAD 7, and related government rules, there is a framework for the mutual recognition of adjudicative security clearance decisions across federal agencies. However, the effectiveness of reciprocity remains challenged by inconsistent implementation, and agency-specific requirements. Reciprocity often works smoothly and other times there are major issues. Many reciprocity issues cannot be predicted accurately. Please reach out to us if you wish to discuss your security clearance reciprocity issue at (703) 668-0070. or here.

Our law firm represents federal employees, military personnel and government contractors in security clearance issues involving foreign influence and preference.  Foreign influence concerns have always been a major security concern because there are potential risks when a clearance holder or applicant’s family or close friends are subject to potential duress or influence by a foreign power. There are also major concerns when an individual owns too much property or other assets in a foreign country with adverse interests towards the United States.

As a result, foreign Influence issues have long been major considerations in determining whether to grant or renew a security clearance.

What are Foreign Influence Concerns?

Security concerns involving foreign influence are evaluated by federal agencies under Guideline B of the Adjudicative Guidelines in Security Executive Agent Directive 4 (SEAD 4).  The security concerns involving SEAD 4 are listed as follows:

The Concern: Foreign contacts and interests, including, but not limited to, business, financial, and property interests, are a national security concern if they result in divided alliance They may also be a national security concern if they create circumstances in which the individual may be manipulated or induced to help a foreign person, group, organization, or government in a way inconsistent with U.S. interests or otherwise made vulnerable to pressure or coercion by any foreign interest.  Assessment of foreign contacts and interests should consider the country in which the foreign contact or interest is located, including, but not limited to, considerations such as whether it is known to target U.S. citizens to obtain classified or sensitive information or is associated with a risk of terrorism.

The specific conditions that may raise security concerns include the following 9 security issues listed in Paragraph 7 of SEAD 4:

a. contact, regardless of method, with a foreign family member, business or professional associate, friend, or other person who is a citizen of or a resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion;

b. connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual’s obligation to protect classified or sensitive information or technology and the individual’ s desire to help a foreign person, group, or country by providing that information or technology;

c. failure to report or fully disclose, when required, association with a foreign person, group, government, or country;

d. counterintelligence information, whether classified or unclassified, that indicates the individual’s access to classified information or eligibility for a sensitive position may involve unacceptable risk to national security;

e. shared living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure, or coercion;

f. substantial business, financial, or property interests in a foreign country, or in any foreign­ owned or foreign-operated business that could subject the individual to a heightened risk of foreign influence or exploitation or personal conflict of interest;

g. unauthorized association with a suspected or known agent, associate, or employee of a foreign intelligence entity;

h. indications that representatives or nationals from a foreign country are acting to increase the vulnerability of the individual to possible future exploitation, inducement, manipulation, pressure, or coercion; and

i. conduct, especially while traveling or residing outside the U.S., that may make the individual vulnerable to exploitation, pressure, or coercion by a foreign person, group, government, or country.

Potential Mitigation of Security Concerns Under Guideline B

In terms of potential mitigation regarding these potential security concerns, the following mitigating considerations are potentially available under Paragraph 8 of SEAD 4:

a. the nature of the relationships with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the United States;

b. there is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, or allegiance to the group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the United States, that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest;

c. contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation;

d. the foreign contacts and activities are on U.S. Government business or are approved by the agency head or designee;

e. the individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons, groups, or organizations from a foreign country; and

f. the value or routine nature of the foreign business, financial, or property interests is such that they are unlikely to result in a conflict and could not be used effectively to influence, manipulate, or pressure the individual.

Potential Foreign Influence Concerns for Clearance Holders

Here are just a few examples of security clearance issues that can arise from foreign ties for security clearance holders and applicants:

1. An individual’s uncle is a general in the Indian Armed Forces;
2. An individual inherits a house from their mother in Pakistan;
3. An individual marries a woman who has assets in Taiwan;
4. An individual previously served in another country’s military;
5. An individual’s mother currently lives in China;
6. An individual is close friends with an foreign service employee of another country;
7. An individual’s father is a citizen and resident of China and receives a pension;
8. An individual’s entire family lives in China and he/she has frequent contact with them;
9. An individual’s mother resides in Bulgaria;
10. An individual maintains investments in foreign countries;
11. An individual’s property an assets in another country outweigh their assets in the United States.

The number of examples is countless, and these are just a few of the types of cases we see on a regular basis.

Different Strategies for Handling Foreign Influence Concerns in Clearance Cases

There are multiple different types of situations that can raise foreign influence concerns for security clearance holders and applicants. When a security concern does arise, there are a number of strategies for attempting to mitigate cases involving potential security concerns.

The first issue that we usually evaluate is the foreign country involved. The United States treats foreign influence concerns vastly different depending on the country. For instance, a foreign relative in the United Kingdom or Germany would be evaluated completely different than an individual that has a foreign relative in China or Russia.

Next, it is important to first evaluate the closeness of any potential foreign relatives and friends in the context of whether or not they are truly close in nature or not. Where appropriate, it is important to argue that foreign relatives or friends are not close in nature or are not connected to a foreign government.  Closeness can be illustrated by a minimum of contact (email, telephone, in person visits) with individuals in foreign countries. Often, it is helpful to explain, in detail, how a foreign contact is not as close as they may appear on the application.

Also, in some cases it can be important to show how the clearance applicant or clearance holder has far more ties to the United States, in assets, family and friends and organizations than to a foreign country they are also tied to. For this type of situation, it is very important to obtain documentation to outweigh such ties, such as showing assets in the United States versus those in a foreign country. Other unique factors can come into play, such as if the individual in the United States is involved significantly in the community, earns a good salary and/or has children in the United States.

Early Mitigation in Foreign Influence Cases

When a clearance holder or applicant has ties to a foreign country, such as close family or assets, it is very important to evaluate these situations early, to attempt to mitigate security concerns. There are many methods available to attempt to mitigate foreign influence concerns, but it is important to focus on the following factors:

(1) Which country does the perceived foreign influence involve?;

(2) What is the  nature of the foreign property or asset; and

(3) Explain how these ties or assets are outweighed by assets, loyalty and family located in the United States.

There are many different mitigation strategies in foreign influence cases, but it is important to obtain advice from a security clearance lawyer when facing these issues.

Contact Us

When a clearance holder or applicant is facing foreign influence security clearance concerns it is important to obtain legal advice and/or 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.

Our security clearance attorneys represent government contractors and federal employees in the security clearance process at the National Reconnaissance Office (NRO). Each federal agency is different in evaluating security clearance issues, and the NRO is no different.  The NRO introduces some unique concepts in their security clearance appeals process.

The NRO security clearance appeals process is initially governed by Executive Order 12698, which delegates clearance processing to individual federal agencies. Furthermore, as the NRO is part of the Intelligence Community (IC), it has other regulations to follow by the DNI. Lastly, the NRO has its own rules for handling security clearance appeals. 

A. The NRO Clearance Process for Government Contractors

The security clearance process for government contractors at the NRO is a hybrid of the process used by the Department of Defense (DoD) but based on the same underlying clearance adjudication principles known as the adjudicative guidelines in SEAD 4. It is important to keep in mind that the NRO security clearance process is managed by their internal clearance appeals office. It is also important to understand that employees have the right to an attorney before the NRO during the stages of the security clearance appeals process. 

The following are the most common steps in the NRO contractor security clearance process. 

1.  Notification of Revocation or Denial of Security Clearance or Upgraded Access

When an NRO clearance holder or applicant has a security clearance issue with the NRO, they will receive a notice of revocation or denial letter, usually sent by the NRO security staff, listing the security concerns at issue and other rights. The security concerns will usually be set forth briefly in a 2-3 page letter. The letter will usually provide copies of the security guidelines at issue and a page entitled Information and Instructions for responding. The rights on review are set forth in some detail in the documents. The letter is similar to a Statement of Reasons (SOR) issued by other federal agencies.

There is a right to request a review of the decision. Additionally, there is a right to request the NRO Investigative File containing documents in the case. Individuals appealing the NRO decision will want to ensure that they make it known that they are seeking a Personal Appearance (PA) (a hearing) as well.  Currently, these rights must be exercised within 45 days to be timely.

2. Receipt of the Investigative File

If requested, you will receive the NRO Investigative File before you have to draft the written response. You will be provided with documentation (or at least a significant portion of it) relied upon by the NRO in denying the request for security access. Some parts of the file may be redacted, but one can usually discern the issues that need to be addressed. 

When the Investigative File is received, it is important to subsequently prepare and file a written response. In the response letter, if a PA has been requested, you will be reminded of two different options for a hearing: a PA or a Virtual Personal Appearance (VPA). The VPA follows a similar format, but travel for the hearing is not required.

3. Written Response to the NRO

Upon receipt of the Investigative File, the individual will generally want to provide a written response in preparation for the PA. It is usually important to provide these supporting documents in advance to give the adjudicator time to review them in advance of the PA. The documents usually need to be provided within a sufficient time prior to the scheduled PA. Most written responses tend to be 10-15 pages in length, plus exhibits. 

4. The Personal Appearance / Hearing

The next step in the NRO security clearance process is for the individual to present their response to the adjudicator during the PA or VPA. The lead adjudicator will be a senior government security officer. The NRO will notify you by letter about the PA hearing schedule. You should retain a security clearance lawyer to assist you with this presentation. These types of hearings typically take about an hour in length, but can last longer. The individual seeking to overturn the initial security clearance decision should be prepared to respond to the concerns at issue and also to potential questions by the adjudicator. The meeting will usually take place at the NRO Visitor’s Center or at another specified location. If the meeting is conducted virtually, the VPA will be heard by telephone.

5. Second Step Appeal Available

Following the PA or VPA, a written decision will be rendered. If the decision is unfavorable, the individual has the ability to appeal the decision to a second step appeal. The second step appeal is adjudicated by a panel of at least 3 senior security officers. This stage is in writing only and the appeal must be submitted within 30 days of the receipt of the denial. Their is no in person aspect to the second step appeal.

6. Final Clearance Decision and Next Steps

Once the second step review is completed, the panel will issue a final decision. If unfavorable, then the individual will not be able to apply for a security clearance through NRO for one year. Keep in mind that at any point in this process, the individual can withdraw their appeal before a decision is rendered. If the process has gone on for some time (1-2 years), it is not uncommon for an individual to file their response and even attend the PA or VPA and subsequently withdraw their appeal. The purpose behind doing so is to ensure that your side of the story is placed in the record and not have to wait for a final decision before reapplying.

B. The NRO Clearance Process for Federal Employees

The NRO security clearance process for federal employees is similar to that for government contractors. However, there are some differences. For instance, if an NRO federal employee has their security clearance revoked, it can lead to a removal from their federal employment before their appeal is complete. This is different from many other federal agencies. While the NRO will generally allow an individual to continue appealing their security clearance denial, even if removed, they may be without a position to return to if they are successful. In many ways, government contractors have more rights in this regard than NRO employees. Additionally, the security clearance process for NRO federal employees appears to run more quickly than that for government contractors, which takes longer.

Contact Us

When an individual is facing security clearance issues at the NRO 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 here or by telephone at (703) 668-0070. 

We defend and advise government contractors, military personnel, and federal employees who have polygraph examination issues. We do this as part of our security clearance practice. The polygraph examination is a central part of the security clearance process for many employees, depending on their required level of access. For certain federal agencies and clearances, like for sensitive compartmented information (SCI) access, many federal agencies require a polygraph examination. Many clients come to us when they have failed a polygraph examination. They also consult with us when they are facing the decision to make certain disclosures in connection with a polygraph examination or discontinue the process. Additionally, clients meet with us when polygraph examination issues result in a Statement of Reasons.

What is a Polygraph?

The polygraph is a machine designed to detect and record changes in physiological characteristics, such as an individual’s pulse and breathing rates. Some people also refer to it as a lie detector. The exam measures these physiological responses while the individual answers a series of questions. The goal of the polygraph is to attempt to determine whether the individual is being truthful, particularly about issues that could pose national security risks. These risks can include such issues as foreign connections, drug use, financial debts, or criminal activity. The exam is usually administered at the federal agency where you are seeking security access. The exam will then be given by an experienced polygraph examiner. Depending on the type of polygraph examination, the testing session could last 2 to 7 hours.

When is the Polygraph Exam Used?

Polygraph tests are typically used during the background investigation process for higher-level security clearances.They are discussed in Security Executive Agent Directive 2 and DOD Instruction 5210.91. In some polygraphs, the examiner asks a series of yes-or-no questions related to national security concerns, such as whether the applicant has committed espionage or had unauthorized contact with foreign nationals. Additional government guidance on the use of polygraphs within the Intelligence Community (IC) is provided in ICPG 704.6. The exam is meant to be one of many tools in determining a person’s reliability and trustworthiness. While polygraphs are not foolproof and can be influenced by a variety of factors — such as nervousness, medical conditions, or even the examiner’s approach — the results can have a significant impact on the outcome of a clearance investigation. Additionally, the exam process itself may lead to other security disclosures outside of the testing phase. A failed polygraph, however, does not automatically result in disqualification, but it is a potential red flag that must be considered and addressed.

Polygraph Exam Failures During Clearance Investigations

If you fail a polygraph examination, it is important to understand that this does not necessarily mean the end of your security clearance process. The next step typically involves a follow-up interview with the agency conducting the investigation, where you may be asked to discuss issues related to the results of the polygraph. During this interview, it is crucial to be honest, calm, and cooperative. Some applicants may find themselves in a situation where they fail the polygraph, either due to physiological reasons, anxiety, or other factors. This is fairly common. Understanding how to handle this outcome is essential for safeguarding your clearance prospects. We represent individuals in polygraph and security clearance matters.

In many cases, polygraph results may be inconclusive or misinterpreted, and further clarification or re-testing might be necessary. If the failure is related to a specific issue, such as a misunderstanding or anxiety, providing evidence or context may help clear up any doubts. However, if there is a legitimate concern — such as involvement in illegal activities or a failure to disclose critical information during the background check — the results could jeopardize your eligibility for a security clearance. If criminal issues come up, it is important to discuss these with counsel to see if the continued polygraph examination process is in your best interests. Some polygraph disclosures can lead to criminal concerns.

Additional Polygraph Examinations

If you are unable to pass a polygraph examination, you should consider requesting a second (or third) examination, especially if you believe that anxiety or other non-deceptive factors have affected the results. In some cases, it has taken some individuals 4 or 5 polygraph examinations to pass. You may also want to consult with a security clearance lawyer with expertise in polygraph examinations who can help you understand the security clearance process.

If there are unique issues that led to the failure — such as a past criminal act or undisclosed financial problems — you must be prepared to address these concerns in a transparent and honest manner. Failure to do so could be interpreted as a lack of trustworthiness, which could ultimately harm your clearance prospects. In some cases involving criminal issues, legal advice about whether to continue in the process is crucial. It is critical to maintain a high level of honesty and transparency throughout the polygraph process. Review your background information carefully if there are potential security concerns at issue. If you are particularly concerned about the polygraph examination process, consider speaking with a security clearance lawyer in advance, who can advise you on legal issues that could come up

Additional Considerations

A failed polygraph for a security clearance is a serious issue, but it does not necessarily spell the end of your clearance application. Keep in mind that when important issues come up during a polygraph examination, an individual, depending on the agent can request to have counsel nearby or observing the process. By understanding the polygraph process, being prepared to address any concerns in the aftermath, and seeking professional advice when necessary, you can increase your chances of successfully navigating this challenge. The key to handling a polygraph failure is to remain honest, transparent, and cooperative throughout the process. With the right approach, you may still be able to resolve any issues and move forward in the security clearance process.

Contact Us

Our security clearance lawyers represent and advise individuals in polygraph and security clearance matters. If you need legal assistance, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.

We often meet with civilian federal employees, military personnel and government contractors nationwide facing potential or actual security clearance issues. Many of the potential clients we meet with ask us what security clearance lawyers do and why they may need to hire one. Many individuals also ask what the appropriate time is in which to hire one. The usual answer we give is that it is best to do so very early in the process. We feel that the earlier in the process a person obtains legal advice about their security clearance concerns, if potential issues exist, the better they increase the odds of a successful outcome.

Obtain Legal Advice Early

As I mentioned above, it is extremely important that individuals with potential security issues consult with experienced security clearance counsel as soon as possible. In our experience, the earlier that an individual with security concerns or potential security concerns consults with a knowledgeable security clearance lawyer, the better the chances are to avert a potential negative outcome.  We also find that it is less expensive to address a problem early before it gets more difficult to defend or respond to. One of the most frustrating issues that we run across in representing employees with security clearance issues is when they come to us too late to avert a negative outcome that might have otherwise been avoided.

What Does a Security Clearance Lawyer Do?

I am often asked the question of just how an attorney can assist a person in the security clearance process.  The answer is that there are many ways that an experienced lawyer in security clearance law can help when there are security concerns.  A lawyer experienced in the security clearance process can advise an individual before a security clearance problem develops. We have found that most individuals have a good sense as to whether or not they may have a security concern (e.g. a recent arrest, drug use, financial issues) as they apply for positions or when they fill out security clearance forms like the e-QIP, eApp, SF-86 and/or different versions of the SF-85. Sometimes individuals don’t weigh (or really plan out) how much a potential security issue can affect their ability to obtain a clearance. Having a security clearance lawyer advise a person about the process can be invaluable.

Consulting Before the Clearance Review Process Begins

When an individual understands that they may have a security concern, consulting with a security clearance attorney can help them get ahead of potential security clearance concerns. One of the major issues that we see in the clearance process is when an individual comes to us too late in the process to alter a negative clearance outcome. We have seen individuals who could have likely obtained or retained their security clearances, but did not seek legal advice early enough in the process to avoid a pitfall which ultimately caused the loss of the clearance.

Sometimes, individuals have had financial issues which could have been easily mitigated, but the person did not realize what type of information was needed for their response. They then receive a denial and are left with fewer options in the appeals process. On other occasions, individuals have security concerns but have not listed them because they did not feel they were important or that it was debatable to them whether they applied (i.e. counseling or an employment termination).  Getting early legal advice on these issues (and being straightforward in the process) is often the key to success.

When consulting with an individual, a security clearance attorney can get a pretty good idea as to the seriousness of the security concerns at issue and what level of risk is involved in the person applying for a security clearance. In the case of a person who has the option to apply for a security clearance, but more time might be needed to mitigate security concerns we can help the person avoid the potential of a denial by advising them to take more time before applying. In this type of situation, we sometimes advise individuals to wait a year (or the appropriate timeframe) before applying for a position that requires a security clearance.  It is also not uncommon that a security clearance lawyer can anticipate a serious issue with someone obtaining a security clearance, i.e. recent criminal charges, which helps them avoid the embarrassment of applying for a position that they may get only to be removed later when their clearance is not approved. A security clearance attorney can also help to put an applicant’s mind at ease if the risk they are concerned about is not as problematic as it seems.

Review of Accuracy of Security Clearance Forms

Additionally, a security clearance attorney can review an individual’s security clearance / federal employment forms (SF-86, SF-85, SF-85p, OF-306) to ensure that they are as accurate and responsive as possible. It is very important to disclose all potential information, accurately, on these forms. Not doing so can form the basis for a denial based on a lack of candor or alleged falsification. We often see issues arise from the unintentional omission of key information that may not seem to be important (or remembered) at the time the security clearance forms were prepared but later becomes the basis of a clearance denial. The most usual culprit in this type of situation is that the individual was not trying to be dishonest but did not put the time and thought that these forms require and simply made a mistake.

Furthermore, while rare, issues disclosed can lead to criminal concerns. As a result, it can sometimes be important to discuss potential criminal disclosures in advance. It is not often the case that disclosures about potential criminal issues become the basis for a criminal prosecution, but sometimes these questions need to be asked before completing a clearance submission. In other words, if an individual has a potential security concern it is key to get legal advice as early in the process as possible. Waiting to get advice after the security clearance process has unfolded can significantly diminish the chances of success for individuals with security concerns.

Consulting/Representation once the Security Clearance Process Begins

It is also important to have the guidance of a security clearance attorney when the security clearance process has begun. The security clearance forms in such a case have been submitted and the individual has potential security concerns, i.e. a record of arrests or financial issues and are in the process of being scheduled for an investigative interview. In such a situation, it is important to go over the areas of concern with a client that are likely to come up in the interview with a security clearance attorney. There are often ways of responding during an interview that can clear up any misperceptions by the investigator or perhaps mitigate these concerns in advance.

Again, it is extremely important to be honest and accurate during the clearance interview process and sometimes to even disclose concerns before the interview begins in certain cases. An experienced security clearance lawyer can help advise an individual about these issues and disclosures before they are interviewed.  We often review such concerns with clients in advance of security clearance interviews and help them in explaining the security concerns, in advance, so that all goes as smoothly as possible during the interview or re-interview process.

Legal Representation in Clearance Denials or Proposed Denials

An individual will definitely need a security clearance attorney if they receive a denial or proposed denial of their security clearance. Each federal agency is different and there are different security clearance processes for each federal agency. This causes some confusion with clients. The security clearance system has been left to each federal agency under existing rules. The type of response needed will also differ based upon which federal agency is processing the clearance review.

This is the case even though all federal agencies fall under the same Executive Order 12968.  It is also important that the individual consult with experienced counsel where they can explain any issues that individual federal agencies are particularly sensitive to. For instance, the FBI is more sensitive to prior drug use by applicants or employees and many intelligence agencies are sensitive to the misuse or careless handling of classified or otherwise sensitive information. In other words, each federal agency has slightly different views depending on the type of security concerns involved.

Response to Security Concerns

In general, each federal agency usually has a written and personal appearance response stage for those who need to appeal a denial or proposed denial in the security clearance appeals process. While different, each federal agency will provide some form of a Statement of Reasons (SOR) or notice which explains the nature of the security concern at issue.  Furthermore, while the procedures and vantage points of a security clearance appeal are different between agencies, they follow the guidelines issues by the Director of National Intelligence (DNI), which became effective June 8, 2017.  The DNI issued new adjudicative guidelines entitled Security Executive Agency Directive 4 (SEAD 4) which provides a list of potential security concerns and mitigation.  A copy of SEAD 4 is provided here. A security clearance lawyer will be versed in the latest regulations governing such appeals (both federal government-wide and federal agency-specific) before the individual agency involved and will be able to assist a person in navigating the type of appeal to present.

Written Response Stage

The typical first step in the security clearance process is to provide a written response to the security concerns to the clearance review authority. To do so, an experienced security clearance attorney will obtain a complete fact set from the individual regarding the security concerns at issue and work to determine the best possible methods of rebutting and/or mitigating these security concerns. There is also a whole-person concept evaluation, which counsel can assist with by explaining the positive attributes about the individual’s character and/or background which can also help to mitigate clearance issues. To this end, we also often ask a potential client about their employment performance, community involvement and/or whether or not they can obtain letters of recommendation or reference for use in mitigation.

The written response usually takes the form of a written submission by counsel, exhibits, and attaches an affidavit or sworn declaration.  It is not uncommon for such responses to be 10 to 70 pages in length, with exhibits.  The length of a submission depends on the security concerns at issue and the type of mitigating documents that are available for a case.

Personal Appearance or Oral Response Stage

While it is very important to provide a detailed written response to security clearance issues, it is even more important to present a thorough oral presentation where the opportunity to do so arises.  We almost always recommend that an individual elect a hearing or personal appearance in security clearance cases. Again, the format for these presentations differ. Some federal agencies conduct formal hearings with an administrative judge (Department of Defense, Department of Energy) and other agencies have appeals panels (National Security Agency, Central Intelligence Agency) staffed by agency employees which hear each case. Additionally, other federal agencies appoint one adjudicator to hear informal appeals. To this end, each federal agency is different.

Regardless of format, a security clearance lawyer will prepare a client for their testimony and will prepare witnesses for their supporting testimony and potential cross-examination or questioning (where the forum permits in person witnesses). It is also important to note that in many forums the government will be represented by their own attorney and it is very important for an individual to have their own counsel in the proceedings.  We find that personal appearances have the greatest potential to reverse negative findings. The ultimate appeals officer, whether it is an administrative judge, an appeals panel or a hearing officer often finds that the most important evidence in a case is to directly hear from the individual involved.  A security clearance attorney will prepare a client for the questions that may arise and the best manner in which to rebut or mitigate them.

Contact Us

When a federal employee, military personnel or government contractor is facing security clearance concerns it is important to obtain legal advice and legal representation early in the process. 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.