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

Our lawyers represent federal employees, government contractors, and military personnel in security clearance cases. One of the most frequent questions they ask is when they should hire a security clearance lawyer.

The usual answer that we give is that clearance holders and applicants should consult with a knowledgeable lawyer as soon as they anticipate having security clearance issues. It is generally easier to fix security clearance problems (or avoid them) as early in the process as possible. 

Most individuals have a good sense as to whether or not they may have a security concern (e.g., drug use, financial issues, accurate completion of forms) as they apply for positions or when they fill out security clearance forms like the e-QIP, SF-86 and/or different versions of the SF-85. Sometimes, individuals don’t consider how much a potential security issue can affect their ability to obtain or retain a security clearance. Having a security clearance attorney advise a person about the process can be invaluable.

Some areas where a security clearance lawyer can help include: 

Getting Advice Before Completing Security Clearance Forms 

When there is a potential security concern, consulting with a security clearance lawyer can help get ahead of potential security clearance concerns. One of the major problems that we see in the clearance process is when a person comes to us too late for advice to potentially correct a security issue. Getting advice prior to submitting security clearance forms, where there are potential issues, is the best advice.

A security clearance lawyer can go over the risks of applying for a security clearance. They can also help review an individual’s security clearance forms to ensure that they are accurate and responsive. It is critical, if you apply, to disclose all information accurately on these forms. Not doing so can form the basis for a denial based on a lack of candor or honesty. 

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 investigative process begins. At this point, the security clearance forms in such a case have been submitted, and the individual is in the process of being scheduled for an investigative interview. In such a situation, it is important to go over any areas of concern with a client that are likely to come up in the interview. 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. However, getting advice before doing so is crucial. 

Representation in Security Clearance Denials or Proposed Denials 

An individual will definitely need a security clearance lawyer 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.  

Drafting the Written Response to the Statement of Reasons 

The typical first step in the security clearance denial process is to provide a written response to the security concerns (often known as the Statement of Reasons) to the clearance review authority. The first step is to 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 them. There is also a whole-person concept evaluation where attorneys can assist individuals in explaining their good character, prior performance, and/or background, which can also help mitigate clearance concerns.  

The written response usually takes the form of a written submission by counsel, exhibits, and an affidavit or declaration. It is not uncommon for such responses to be 15 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.   

Representation During Personal Appearance or Hearing 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 an administrative judge hearing or personal appearance in security clearance cases. Each federal agency is different and has different procedures for personal appearances and hearings. We have found that personal appearances/hearings have the greatest potential to reverse negative findings.  

Contact Us 

When an individual is facing concerns about security clearance issues, it is important to obtain legal advice early. 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.