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Security Clearance

DC Federal Employment Law Attorney

Since September 11, 2001, the federal government has dramatically expanded the scope and nature of federal positions that require a clearance, making it all-the-more important for an increasing number of federal employees, military personnel, and contractors to protect their eligibility. The successful acquisition and maintenance of security clearance of any sort is an elaborate process and is an affirmation from the federal government that you can be trusted with highly-sensitive information. There is a strong presumption against the grant or maintenance of a security clearance and an individual will only be granted a clearance if the government finds that it is in the interest of national security to do so.

If you have a matter regarding any aspect of the security clearance process, initial application, threat of revocation, or appeals, it is important that you consult a security clearance lawyer. An experienced attorney at our firm can review your case and advise you on your rights and options to ensure you are in the best position to keep or acquire a security clearance.

There is no right to a security clearance, there is no presumption in favor of granting or continuing one, and the federal government can resolve doubts in favor of the national security rather than in favor of an applicant. Directive, Adjudicative Guidelines, Item E2.2.2; Egan, 484 U.S. 518, 528–529.

In today’s post September 11, 2001 environment, more federal agencies are required to issue security clearances than at any other time in our nation’s history. Federal agencies like the Department of Defense, the Department of Homeland Security (DHS), the Central Intelligence Agency, the National Security Agency, the Department of State, the Federal Bureau of Investigation, and the Department of Justice have long required security clearances for a great deal of their respective positions. However, today agencies like the Department of Energy and the Department of Agriculture now require clearances for an increasing number of their positions. Previously autonomous agencies like the Department of Transportation and the Federal Emergency Management Agency, which are now components of the DHS, are also subject to security clearance requirements.

To obtain a clearance, you will have to undergo a comprehensive background check and any adverse information that turns up could jeopardize your ability to acquire or maintain your clearance. The federal law regarding security clearances is comprised of a complex web of rules and regulations, the most significant being Executive Order 12968, which establishes the baseline standards that govern access to sensitive and classified information. Those standards are enforced using adjudicative guidelines, which are applied to all federal agencies that require clearances.

Security clearance decisions consider an individual’s past and present behavior to make a whole-person assessment and the adjudicative guidelines provide a roadmap for how the government will evaluate your application. The thirteen guidelines the government will use to evaluate your fitness for a clearance include:

(1) GUIDELINE A: Allegiance to the United States

(2) GUIDELINE B: Foreign Influence

(3) GUIDELINE C: Foreign Preference

(4) GUIDELINE D: Sexual Behavior

(5) GUIDELINE E: Personal Conduct

(6) GUIDELINE F: Financial Considerations

(7) GUIDELINE G: Alcohol Consumption

(8) GUIDELINE H: Drug Involvement and Substance Misuse

(9) GUIDELINE I: Psychological Conditions

(10) GUIDELINE J: Criminal Conduct

(11) GUIDELINE K: Handling Protected Information

(12) GUIDELINE L: Outside Activities

(13) GUIDELINE M: Use of Information Technology

Our lawyers will work with you to address any issue that might arise during the course of your application process to ensure you are in the best position to keep or acquire a security clearance.


What types of Security Clearance are there?

There are generally three different types of security clearance:

  1. Confidential: provides access to information or material that may cause damage to national security if disclosed without authorization (confidential clearances are reinvestigated every 15 years).
  2. Secret: allows for access to information or material that may cause serious damage to national security if disclosed without authorization (secret clearances are reinvestigated every 10 years).
  3. Top secret: permits access to information or material that may cause exceptionally grave damage to national security if disclosed without authorization (reinvestigated every 5 years).

In addition to the traditional clearances (confidential, secret, top secret), the DoE issues two additional types of clearance: the “Q” Clearance and the “L” Clearance.

  1. The Q Clearance permits access to classified information and can grant an employee access to top secret data commonly referred to as Top Secret Restricted Data. Q clearance holders also have access to Formerly Restricted Data, and certain National Security Information. The Q Clearance is the equivalent to the DOD’s top-secret clearance.
  1. The lower level clearance or the “L” Clearance allows an employee access to Secret Formerly Restricted Data (FRD) and National Security Information, as well as Confidential Restricted Data, Formerly Restricted Data, and National Security Information.

Several positions require a specialized designation, which is not a clearance, such as Sensitive Compartmented Information (SCI) or “A Public Trust” designation. Positions that require an SCI designation are oftentimes found within the intelligence community and are given to employees who need to have access to materials that are restricted to compartmented channels. A public Trust position is one that requires employees with a certain specialized knowledge or employees who have demonstrated a high level of fidelity to the government. Such positions can include public safety and health workers, comptrollers, federal police officers, and immigration, customs, border and port protection agents.

Factors in determining eligibility

The ultimate determination of whether the granting or continuing of eligibility for a security clearance is clearly consistent with the interests of national security must be an overall common-sense judgment based upon careful consideration of the following guidelines, each of which is to be evaluated in the context of the whole person.

For any conduct that is potentially disqualifying under the Adjudicative Guidelines, the adjudicator is advised to consider the following factors:

(1) the nature, extent, and seriousness of the conduct;

(2) the circumstances surrounding the conduct, to include knowledgeable participation;

(3) the frequency and recency of the conduct;

(4) the individual’s age and maturity at the time of the conduct;

(5) the extent to which participation was voluntary;

(6) the presence or absence of rehabilitation and other permanent behavioral changes;

(7) the motivation for the conduct;

(8) the potential for pressure, coercion, exploitation, or duress; and

(9) the likelihood of continuation or recurrence.

In the case of those who already hold a clearance in which adverse information is learned, the adjudicator will likely consider if the individual:

(1) voluntarily reported the information;

(2) was truthful and complete in responding to questions;

(3) sought assistance and followed professional guidance, where appropriate;

(4) resolved or appears likely to favorably resolve the security concern;

(5) has demonstrated positive changes in behavior; and

(6) should have his or her national security eligibility suspended pending final adjudication of the information.

How Our Security Clearance Attorneys Can Assist You:

Our employment law and security clearance lawyers have in-depth experience working with federal employees, military personnel, and contractors and can represent clients at every stage of the security clearance process. Specifically, we can assist you with the following:

  • Preparing and completing your written application, the Personal Security Questionnaire SF-86
  • Assisting applicants prepare for the background investigation and formal interview with an investigator
  • Helping applicants address any issue that may need to be evaluated under the adjudicative guidelines, to include:
    • Responding to the Statement of Reasons (SOR)
    • Responding to the Letter of Intent (LOI)
  • Representing employees at post denial hearings before the Defense Office of Hearings and Appeals (DOHA), and any other relevant federal court or agency
  • Representation throughout any necessary appeals

The security clearance process can be daunting. If you are in the midst of applying for a clearance, have had your application denied, or are subject to a revocation, we can assist you in your efforts to acquire or maintain your clearance.

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