Legal Insider: Representing government contractors before the NSA in security clearance cases

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Our security clearance lawyers represent government contractors and federal employees before the National Security Agency (NSA) in security clearance (and employment cases). The NSA is an intelligence agency with its own unique security clearance process under Security Executive Agent Directive 4 (SEAD 4). This article discusses the appeals process for government contractors at the NSA for security clearance and Sensitive Compartmented Information (SCI) access denials or revocations.

The Security Clearance Process at the NSA

The security clearance appeals process at the NSA is similar to those used by other federal (and intelligence) agencies, with its own unique features. The following are the usual steps at the NSA in the security clearance or SCI review process for government contractors.

1. Revocation or Denial of Security Clearance/SCI Letter Issued by NSA

When a government contractor has a security clearance or SCI access denial or revocation with the NSA, they will receive a letter that provides the background and security clearance concerns in a case. The letter is referred to as a Clearance Decision Statement and will then state that the contractor is given 45 days from receipt of the letter to respond to the alleged security concerns. The investigative file, upon which the denial is based, will often be attached to the NSA letter to facilitate a response by the contractor. With other intelligence agencies, an individual must usually first request the investigative file. The investigative file will usually include documents, reports, interviews, or other items relevant to the NSA’s security concerns at issue. Our security clearance lawyers typically represent contractors starting with this first step.

2. Response to the NSA Clearance Decision Statement

If the contractor elects to challenge the Clearance Decision Statement they will respond to the NSA’s security concerns in writing. A thorough response must be prepared to address all of the security issues. It is critical to also provide exhibits, such as relevant evidence, declarations, character letters, declarations, affidavits, and other documentation related to the NSA’s security concerns or the character of the individual.

3. Decision by NSA Office of Personnel Security is Issued

Once the response to the Clearance Decision Statement is received by the NSA, the NSA Office of Personnel Security will review and issue a decision as to whether or not the security concerns against the government contractor have been dismissed or mitigated. If so, the matter is then resolved and the clearance or SCI is restored. If not, the individual will be provided a short decision briefly citing the reasons why the appeal was denied and informing the contractor of their right to a final appeal before the NSA Access Appeals Panel (AAP). There is then a very short period of time (usually 15 days) in which to either request a hearing with the AAP or otherwise simply submit a secondary written appeal.

4. Meeting with the NSA Access Appeals Panel

If the contractor has elected to provide an in-person response (which is recommended), the next step is a meeting with the AAP. Any additional supporting documents must usually be submitted no later than 14 days prior to the AAP hearing. The AAP hearing is an in-person presentation. During this hearing before the AAP, counsel and the contractor will present their case asking for a reversal of the negative security clearance or SCI determination. The panel normally has 6-7 people present (panel members and an NSA attorney/advisor) and typically asks several questions during the presentation so it is important to be prepared. We recommend legal counsel during this process to ensure adequate preparation for the AAP hearing.

5. The NSA AAP Decision

Following the AAP hearing, they will issue a decision, usually within 1-3 weeks, either granting the clearance or access or issuing a final denial. In a few cases, the NSA AAP may seek additional information or an additional response from the contractor. If the AAP issues a denial, the contractor may re-apply for a security clearance or access a year later. The relatively quick clearance review process at the NSA is unique among intelligence agencies where the security clearance process can often take much longer.

Conclusion

When a government contractor is facing security clearance issues at the NSA it is important to obtain legal advice and representation from an experienced security clearance lawyer. Our law firm advises government contractors and federal employees in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.