DOE Security Clearance Appeals
Our nationwide security clearance lawyers represent and defend federal employees and government contractors who hold or are seeking Department of Energy (DoE) security clearances. DoE maintains the security clearances of approximately 90,000 individuals, making it one of the largest holders of security clearances among federal agencies. The DoE security clearance appeals process is well run, but it is important to have an attorney representing you. Under the Atomic Energy Act (AEA), DoE maintains its own unique security clearance process for clearance holders. The AEA requires the safeguarding of nuclear materials and facilities in the United States. Additionally, the AEA requires that access to Restricted Data be granted only to those who have been adjudicated favorably. DOE oversees the classification of all nuclear information protected by the AEA. While DoE runs its own security clearance process, the rules governing it are similar to those in other federal agencies.
DoE L and Q Security Clearances
Federal agencies refer to their base security clearances as Secret and Top-Secret. However, at the DoE, they are referred to differently. Instead of Secret and Top-Secret, these security clearances are referred to as L and Q security clearances. An L clearance provides access to less sensitive information and is similar to a Secret clearance, and the Q clearance gives access to highly sensitive information and is equivalent to a Top Secret (TS) security clearance. The L clearance requires a Tier 3 background investigation, which includes criminal history, employment, and residence checks. The Q clearance requires a Tier 5 background investigation, which includes a subject interview in addition to credit and citizenship checks.
Security Clearance Procedures by the DoE
The security clearance appeals process and appeals for DoE entities are controlled by 10 C.F.R. Part 710. DoE adheres to Executive Order and Security Executive Agent Directive 4, but the security clearance process falls under Title 10 of the Code of Federal Regulations. When issues with a security clearance arise, the DoE security clearance process usually unfolds as listed below:
Step 1 – Security Concerns are Identified by DoE
The first step in the security clearance review process for DoE occurs when an individual seeking or holding a security clearance is identified as having security concerns. The local director of security will review the security issues to determine the next steps. After director review, the security issues will either be resolved favorably or moved to the next step in the process for adjudication.
Step 2 – Notice to the Individual About Appeal Options
If the security concerns involving an individual have not been resolved, the individual will receive a letter explaining their two options through administrative review. This letter will come with a document entitled “Summary of Security Concerns,” which is very similar to what is known as a Statement of Reasons for other federal agencies. The Summary will set forth the facts and security concerns at issue. The individual can either request that the matter be resolved by the Manager based on existing information or by seeking a personal appearance (hearing) before a DoE administrative judge. A request for a hearing must be timely, or it can be waived. The current deadline is 20 days. Failure to request a hearing within the prescribed timeframe can result in the loss of a security clearance. It is very important to be responsive in this process and pay attention to deadlines.
Step 3 – Option A – Requesting Manager Review
If the individual requests a Manager review of the security concerns instead of a Personal Appearance, the process is different. You can also file with the Manager your response to the security clearance concerns. If this type of review is requested, the Manager will review the existing information in the case to make a determination as to whether or not to grant access. In almost all cases, we recommend that individuals request a hearing before an administrative judge.
Step 3 – Option B – Requesting a Hearing Before DoE Administrative Judge
If a hearing is requested, the next step in a DoE security clearance adjudication is for the individual to present their case before an administrative judge in the DoE’s Office of Hearings and Appeals (OHA). DoE will be represented by their own attorney, and the individual has the option to hire their own counsel. Prior to the hearing, DoE Counsel and the individual (or their attorney) will exchange witness lists and proposed exhibits. The administrative judge will evaluate them and make rulings, as needed, about their use in the security clearance hearing. The hearing is conducted mostly by videoconference these days.
During the clearance hearing, there is an opportunity for opening and closing statements and the examination of witnesses. Usually, the individual who has the burden of proof will put forward the majority of witnesses, and they will then be cross-examined by the other side. The administrative judge also has the ability to ask witnesses questions. To ensure that there is a clear record, there will also be a court reporter present to take down all testimony. After the hearing is over, the administrative judge will issue a decision within 30 days of receiving the hearing transcript. The decision will either grant/restore or deny the individual’s security clearance.
Step 4 – Appeals of Unfavorable Decisions
If the administrative judge or Director’s decision is not favorable, they can appeal it within 30 days of receipt of the decision under 10 CFR 710.28 and 10 CFR 710.22. Both appeals go to the DoE Appeal Panel. The Appeal Panel consists of 3 members and can uphold, reverse, or remand a decision for further review. In filing the appeal, the individual must identify the issues upon which the appeal is based. If an individual’s appeal is denied, the decision will be final, and they can subsequently apply for reconsideration after one year.
Step 5 – Reconsideration of Previously Denied DoE Clearance
Even after a final unfavorable decision by DoE, individuals can see reconsideration after waiting a year. Our DoE security clearance lawyers represent individuals in this process. If reconsideration is sought by an individual after a one-year period, then it will be very important to show what has changed since the initial decision. Reconsideration for a DoE security clearance requires that the person: (1) have a bona fide offer of employment requiring a DoE security clearance and (2) be able to show that “there is either material and relevant new evidence which the individual and the individual’s representatives were without fault in failing to present earlier, or convincing evidence of rehabilitation or reformation.” Individuals who are approved on reconsideration will move forward through the SF-86 submission and investigation process. Individuals who are unsuccessful in seeking reconsideration can apply for reconsideration again after another year has elapsed.
Hire a DoE Security Clearance Lawyer
When facing a security clearance issue before the DoE, it is important to obtain legal representation in order to provide the best opportunity to maintain an individual’s security clearance. Our lawyers represent all DoE employees and government contractors in security clearance cases. For example, our DoE security clearance lawyers represent individuals at DoE Headquarters, all DoE offices, the National Nuclear Security Administration (NNSA), all 17 DoE Laboratories and all other DoE projects. It is important to note that there are 17 laboratories covered by the DoE security clearance process, including the following:
Ames Laboratory, Argonne National Laboratory, Brookhaven National Laboratory, Fermilab, Lawrence Berkeley National Laboratory, Oak Ridge National Laboratory, Pacific Northwest National Laboratory, Princeton Physics Laboratory, SLAC National Accelerator Laboratory, Thomas Jefferson National Accelerator Laboratory, Lawrence Livermore Nati0nal Laboratory, Los Alamos National Laboratory, Sandia National Laboratories, Idaho National Laboratory, National Energy Technology Laboratory, National Renewable Energy Laboratory and the Savannah River National Laboratory.
Our law firm represents and advises these individuals in security clearance appeals before the DoE in all locations. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070 to schedule a consultation to go over your DoE security clearance issues.
