Reston

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.

Thoughts on the Security Clearance Appeal Process

Security clearance appeals take place when individuals get denied while applying for a security clearance. They can also occur when an individual with a security clearance has their clearance revoked. Security clearance appeals can have important ramifications for your career.

In many cases, losing a security clearance can result in losing your position. We represent government contractors, federal employees and military personnel in security clearance appeals.

Each Agency’s Appeal Procedures are Different

Every federal agency handles security clearance appeals differently. While the right to a security clearance appeal comes from Executive Order 12968, agencies have developed their own policies in implementation.

Some agencies, like the Department of Defense and Department of Energy, incorporate an administrative judge hearing process. These types of appeals are essentially administrative court proceedings, with the government represented by an attorney. Other agencies, like the Department of Homeland Security, incorporates a written response and personal appearance process, which is less formal. Many of the Intelligence Community agencies provide the opportunity to submit a written response and meet with adjudicators during a personal appearance.

While there are many different procedures for security clearance appeals, there are many things in common.

Common Considerations in Security Clearance Appeals

While there may be different procedures by different federal agencies in the security clearance appeals process, there are many similar considerations. These include:

1. Obtain Legal Advice Early: Obtaining legal representation early in the security clearance appeals process is extremely important. Too often we see security clearance appeals that have gone too far in the process before an attorney is hired, which often lowers the odds of ultimate success. Ideally, individuals with security concerns should meet with an experienced security clearance lawyer before submitting their initial security clearance forms. If not then, it is important to have a security clearance lawyer help them respond to a Statement of Response (SOR) or Notice of Intent to Revoke a Security Clearance.
2. Obtain Critical Documentation: Many individuals are not aware and not advised about the level of detail and documentation needed to present a strong security clearance appeal. Depending on the particular case, we may need to obtain government records, performance evaluations, documents that address the security concerns, witness statements, awards, character letters and other mitigating documentation to present the best possible security clearance appeal.
3. Draft a Comprehensive Written Response to the Security Concerns: In many cases individuals handling their own initial responses don’t realize the level of detail needed in their written response to address the security concerns. Some individuals write in “I admit” on the SOR or prepare a short paragraph responding to the concerns. A response, to be successful, must give a complete and detailed explanation about the security concerns raised by the Government. These responses tend to run 10-14 pages and along with the exhibits attached can run 25 to 40 pages. Additionally, the response has to provide detailed information about who you are as a person. The Whole-Person Concept, an overview of you and your experience and life is critical to help resolve a security clearance appeal.
4. Be Fully Prepared for the Administrative Judge Hearing or Personal Appearance: When the time comes for an administrative judge hearing or personal appearance on the security clearance appeal it is critical to be prepared. A security clearance attorney can assist you in preparing for these processes. You will want to be able to answer questions clearly about the security concerns, your background and other issues. Additionally, in administrative judge proceedings you will want to be prepared for a government attorney’s cross-examination. For personal appearances, you will want to be prepared to address critical questions raised by the reviewing official.

Contact Us

Each security clearance appeal is unique, so individuals are advised to have counsel advise and represent them as early in the process as possible. If you need assistance with a security clearance issue, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation.