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Security Clearance Lawyer

The loss of your security clearance can easily result in the early termination of your career, whether it is with an active duty or reserve component of the armed forces or as a civilian employee with the federal government or a government contractor. The law firm of McCormack & Associates, a Virginia-based law practice, will provide you with effective legal representation in an effort to retain your security clearance. Our firm has two paralegals who are extremely experienced in the field of security clearance law – they have provided the skill and knowledge on numerous security clearance cases over the recent years with outstanding results. Attorney Greg McCormack is a former Army lawyer and he has extensive experience, over 28 years, with dealing with federal agencies in both administrative and criminal settings. Attorney Patrick Flynn has a well-earned reputation throughout the military legal community as an extremely talented court-room litigator, and will aggressively fight to protect your rights.

We invite you to closely inspect our Web site to gain a better understanding of our law firm and the experience of our staff in the handling of security clearance cases. We look forward to serving your legal needs.

Federal Government Implements Major Changes To Adjudicative Guidelines

The approved major revisions (December 29, 2005) to the Adjudicative Guidelines for Determining the Eligibility for Access to Classified Information are applicable to the adjudication of all cases in which a Statement of Reason (SOR)/Letter of Intent (LOI) was issued on or after September 1, 2006. The previously issued Adjudicative Guidelines will remain applicable to all cases in which a Statement of Reason(SOR)/Letter of Intent (LOI) was issued before September 1, 2006. These major revisions have a significant impact on the adjudicative process applicable to broad areas of Federal personnel law concerning numerous types of protected information. Additionally, effective September 12, 2006, DOHA Operating Instruction No. 64 is applicable to the adjudication of all Smith Amendment Cases (10 U.S.C. Section 986) without regard to the date the Statement of Reasons (SOR)/Letter of Intent was issued. Click HERE for more information.

"SMITH AMENDMENT WAIVER REPORT ISSUED"

Under Secretary of Defense Memorandum of August 30, 2006 gave authority to the Director, Washington Headquarters Services (WHS); Director, Defense Intelligence Agency (DIA); Director, National Security Agency (NSA); Director, Defense Office of Hearings and Appeals (DOHA); and Secretaries of the Military Departments; or their respective designees, to grant waivers in "meritorious cases where mitigating factors exist that are consistent with the mitigating factors described in the...Adjudicative Guidelines." This grant of authority was the long-awaited opening of the log-jam where provisions had been legislatively approved and enacted for consideration of waivers in cases where a Dishonorable Discharge was issued or where an applicant had actually served a prison sentence of a year or longer in jail.

The first reports regarding the granting of such waivers are starting to be published. Click HERE for more information. Though it is still very early in the process, there are a few factors that appear clear regarding what types of cases are more likely to receive favorable consideration with regard to the granting of a Smith Amendment waiver:

* Age at time of commission of offenses. Commission of the offenses while a teenager or early 20s, when the individual may be more likely to be considered as a "youthful offender" significantly mitigates the behavior more than for an older offender;
* Number and nature of offenses. A single offense or a limited number of offenses within a narrow period of time as opposed to a larger number of offenses over a more extended period of time.
* Amount of time that has passed since the commission of offenses. A substantial period of time must have elapsed since the behavior for the case to be considered "meritorious."
* A clean record since commission of offenses. There must be a clear demonstration of compliance with the "Five R's" of Reform, Regret, Responsibility, Rehabilitation and Remoteness of the behavior.
* Renewal of a clearance. Though not specified, it is not unreasonable to anticipate that an applicant who was granted a clearance before the enactment of the Smith Amendment, and therefore faces an "ex post facto" application of the prohibition on granting a clearance will have a more equitable position than a first time applicant for a clearance.
* Granting of a Pardon/Restoration of Rights. May enhance the case through a demonstration that the punishing jurisdiction has also recognized the applicants behavioral changes.
* Living an exemplary life. Doing more than simply having a job, paying taxes, raising a family and complying with the law...which is what everyone is expected to do...will increase the possibility of a waiver being granted.

WHAT IS THE MOST IMPORTANT THING TO KNOW ABOUT SECURITY CLEARANCES

The absolute most important thing to know about security clearance cases is that “integrity” is everything. No matter how big or small the “behavior” at issue may be – the government must believe that you can be trusted to tell the truth, most significantly when to be honest could adversely impact you, your job and your position. Almost any behavior can be mitigated. Integrity once lost, however, is extremely difficult to recover.

IMPORTANCE OF REQUESTING A HEARING IN YOUR SECURITY CLEARANCE CASE

Though this issue actually comes up rather late in the clearance adjudication process, we have listed it at the beginning of our discussion because its importance cannot be overlooked.

For cases falling under the purview of the Department of Defense, the adjudication of a clearance can be conducted either by a review of the File Of Relevant Material (FORM) by an Administrative Judge or by presenting a case at a hearing/appearance before an Administrative Judge. In all but the rarest of cases we strongly recommend that your case be decided through a hearing/appearance. For all practical purposes a security clearance decision is going to be won or lost at that hearing.

Congressional Testimony before the Senate Armed Services Committee reports that for Department of Hearings and Appeals (DOHA) Industrial Security Clearance Cases (i.e., Defense Contractor employees) Administrative Judges deny clearances in approximately 85% of the cases where no hearing is involved. In cases where a hearing is involved Administrative Judges still deny clearances approximately 60% of the time. At McCormack and Associates we have obtained successful results far exceeding those percentages. Either losing party can appeal the Administrative Judge’s decision. For cases where the Administrative Judge has granted a clearance, and the government appeals that decision, on appeal the clearance is denied about 70% of the time. For cases where the Administrative Judge has denied the clearance, and the applicant appeals, on appeal a clearance is granted in fewer than 2% of the cases.

The procedural steps for adjudicating a Government Employee’s clearance are somewhat convoluted, basically progressing as follows: Central Adjudication Facility (CAF) issues a Letter of Intent (LOI); employee responds to LOI; CAF issues Letter of Denial/Revocation (LOD); employee appeals LOD; Administrative Judge issues recommendation; Personnel Security Appeals Board (PSAB) of CAF issues final decision. That same Congressional Testimony, however, disclosed that for Government Employee cases in approximately 80% of the cases the final decision is consistent with the recommendation of the Administrative Judge; and, that the Administrative Judge concurs with the CAF decision to revoke the clearance approximately 60% of the time – with the PSAB agreeing with the Administrative Judge in approximately 90% of those revocation cases.

Thus, the message is clear. The best chance a person has to get or keep a clearance is to request a hearing or appearance and present their case before the Administrative Judge. It is virtually impossible to try and win the case on appeal. Take affirmative action to get or protect your clearance now. The best chance you have to get or keep a clearance will depend on your hearing or appearance.

PRE-SECURITY CLEARANCE COUNSELING

There are a number of different types of cases that are commonly referred to as “security clearance” cases. The three most common situations are those involving: 1) Public Trust Positions; 2) National Security Positions; and, 3) Special Access Programs.

Public Trust Positions are those that have the potential for adverse impact to the integrity and efficiency of the particular agency’s mission. They are sensitive in nature and do not require a security clearance but do require a background investigation to determine “suitability” to be assigned to the position.

National Security Positions are the true “security clearance” cases. These are positions that have the potential to cause damage to the national security and require access to classified information. The levels of classified access are Confidential, Secret, and Top Secret.

Special Access Programs (SAP) concerns any program imposing “need-to-know” or access controls beyond those normally provided for access to confidential, secret, or top secret information. The most common SAP cases are those dealing with access to sensitive compartmented information (SCI). While the applicable DoD directive is specifically stated to be not applicable to SAP determinations, the substantive decisions in these cases are based on the same “guidelines” as found in the directive.

While there are potentially substantial differences in these cases, the general adjudication of these cases tends to be somewhat similar.

We can provide counseling concerning the proper responses to questions on the numerous national security clearance/public trust position questionnaires (e.g., SF 85, 85P, 85P-S, 86, 86A, 86C, OF306, EPSQ/e-QIP, or DD 1879), what events need to be reported and the consequences for not reporting certain events. This service will provide a greater opportunity to obtain a positive clearance outcome for the individual and a greater percentage of cleared employees for the contractor. We provide this service to individuals seeking assistance or to all employees of government contractors that have retained our services. In this regard, the most commonly used form is the SF-86. Copies of both an SF-86 and an SF-86 worksheet are available on our website for your use (click here for more details).

Regardless of when in the process we get involved, and whether you are an employee of the federal government or an employee of a company that has contracted with the federal government, we can help in the adjudication of your case based on the requirements of DoD Directive 5220.6 (the “directive”) which establishes the substantive adjudication criteria for “security clearance” determinations. This directive is utilized by all federal agencies in the adjudication process. Each agency is permitted to establish its own procedural mechanism for applying the “directive.”

HOW LONG WILL MY SECURITY CLEARANCE LAST?

Generally the length of time a clearance remains valid depends on the type of clearance. Typically a Confidential clearance is good for 15 years, a Secret clearance is good for 10 years, and a Top Secret clearance is good for 5 years before a Periodic Reinvestigation/Review (PR) is required. If you leave the position which required you to have a clearance, the clearance will generally remain valid for two years or until the date at which a new PR is required, whichever first occurs.

INDUSTRIAL SECURITY CLEARANCE CASES

These include the investigation or adjudication of the security clearances of officers and employees of contractors doing business with the Department of Defense. The process begins with a Statement of Reasons (SOR) for the denial of the security clearance. The SOR will set out specific bases, guided by DoD Directive 5220.6, for the proposed denial. The applicant must respond to the SOR within 20 days by either admitting or denying the allegations. As part of the answer to the SOR the applicant must either request a review of the File of Relevant Material (FORM) or request a hearing (see above discussion on importance of requesting a hearing). The case will then be set for a hearing before an Administrative Judge. These hearings are typically held on the military facility at which the applicant works or at a local courthouse. The hearings are a relatively formal proceeding at which documents are admitted and witnesses are called by both the government representative (acting as a prosecutor) and the applicant or applicant’s counsel. A transcript of the hearing is prepared and the Administrative Judge will make a decision based upon the formal record of the case.

ACTIVE DUTY AND DOD CIVILIAN PERSONNEL CASES

These cases involve the denial or revocation of a security clearance to active duty and DoD civilian employees as well as adjudication of Special Access Program determinations. Procedurally these cases are controlled by DoD Regulation 5200.2-R (the “regulation”). These cases begin with a Letter of Denial or Letter of Intent to Deny/Revoke (LOD) the security clearance. The letter must be responded to within 10 days of receipt. Typically, the clearance is revoked and the case will then be set for an appearance before an Administrative Judge from the DoD Department of Hearings and Appeals (DOHA). Because the clearance has been revoked, the employee is considered to be an “appellant,” who is appealing the decision to revoke the clearance. The appearance will be held at the military facility or other local government office close to where the appellant works. The government is represented only by the Administrative Judge. There is no “prosecutor.” The appellant is not allowed to call witnesses. The appellant may provide written statements or other documentary evidence. The appellant may also make a statement or respond to questions of appellant’s counsel. The Administrative Judge will prepare a recommendation and forward it along with the record of the case to the service’s Personnel Security Appeal Board (PSAB) of the Central Adjudication Facility (CAF). The PSAB will either accept or reject the recommendation of the Administrative Judge. These appearances, due to the limited nature of the evidence presented, require that the appellant’s case be prepared well in advance and with great attention to the documentary evidence to be presented.

OTHER FEDERAL AGENCY CIVILIAN PERSONNEL CASES

These cases involve the denial or revocation of a security clearance to civilian employees of, and contractor employees for, other federal agencies (i.e., not DoD; e.g., Department of Homeland Security [DHS], Department of Justice [DoJ], Department of State [DOS], NASA, Department of Energy, CIA). Similar to those cases involving DoD military and civilian personnel cases, these cases typically begin with a Letter of Denial (LOD) or Letter of Intent (LOI) to deny the security clearance. The Letter of Denial must be responded to within a specified time period, normally within 10 days of receipt. The case will then be set for an appearance or hearing before an Administrative Panel. While there are clear distinctions between the use of the terms “appearance” and “hearing” within DoD, those distinctions are less clear when dealing with non-DoD federal agencies.

Each agency establishes its own administrative “procedures” for these panels, while still relying upon the same “substantive” “guidelines” from DoD Directive 5220.6 for determining disqualifying and mitigating criteria in making the ultimate security clearance determination. By way of examples, Federal Air Marshals (FAMs) of the Transportation Security Administration (TSA) of DHS appear before a “security appeals panel;” Alcohol, Tobacco and Firearms (ATF) employees of DoJ appear before an “access review committee,” and DOS has three different procedures under the guidance of their office of Personnel Security Suitability: 1) Foreign Review Panel – for foreign service personnel, 2) Personnel Review Panel – for civil service personnel, and 3) Contractor Review Panel – for contractor personnel. Comparable differences exist in the handling of the particular case, depending on the federal agency involved. For example: FAM, TSA, DHS employees appear before a panel where no witnesses are present, while at DoJ, the particular sub-agency involved, e.g., ATF, will be represented at the hearing and can question the employee during the hearing, though the employee is not entitled to call witnesses to the hearing. The appearance or hearing will be held at a place determined by the federal agency. Travel and per diem costs are determined by each agency. These appearances or hearings, again due to the limited nature of the evidence presented, require that the applicant’s case be prepared well in advance and with great attention to the documentary evidence to be presented.