Hiring a Security Clearance Lawyer

By John V. Berry, Esq., www.berrylegal.com 

We typically meet with many federal employees and/or government contractors who are faced with security concerns or potential security concerns in obtaining, retaining or applying for a security clearance. These individuals often ask our attorneys at what point they should retain a security clearance attorney to assist, advise or represent them. This article discusses this topic.

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Clearance Tips Before the Defense Office of Hearings and Appeals

By John V. Berry, Esq., www.berrylegal.com

A topic that often comes up in our law firm’s security clearance practice involves the issue of how to best prepare for an upcoming administrative hearing before an administrative judge with the Defense Office of Hearings and Appeals (DOHA).  While this topic could cover several chapters, I have assembled a few basic tips in the process from our practice in this area of law.  DOHA administrative judges make final decisions of security clearances for government contractors and recommended clearance decisions for federal employees.

Keep in mind that it is important to obtain an experienced lawyer familiar with security clearance practice to best assist individuals approaching a DOHA hearing.  Counsel can best advise an individual in how to prepare and present their cases in order to give the best possible opportunity for a successful outcome. A successful outcome often means putting in significant preparation ahead of time. This article discusses some basic tips.

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Security Clearance Upgrades Can Lead to Loss of Existing Clearance

By John V. Berry, Esq., www.berrylegal.com

When an individual with a security clearance is submitted for a security clearance upgrade, any previously existing security concerns are scrutinized once again, but at a higher level.  For instance, if an individual has been previously approved for a Secret level clearance and is then submitted for a higher level Top Secret (TS) level clearance by their employer, that individual could be denied based on the same concerns that existed when he or she was previously approved for a Secret level clearance.  This more frequently happens when an individual holds a Top Secret (TS) clearance but is applying for Sensitive Compartmented Information (SCI) access, “TS/SCI.”

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Financial Concerns For Security Clearance Holders

By John V. Berry, Esq., www.berrylegal.com

One of the most often raised issues in security clearance cases involves the issue of financial concerns for a federal employee or government contractor.  The majority of security clearance cases, by far, involve this issue.  This type of security clearance case falls under Guideline F, Financial Considerations of the new June 2017 Adjudicative Guidelines contained in Security Executive Agent Directive 4.   Guideline F is the section of the Adjudicative Guidelines which involve financial considerations and provides the basis to evaluate their impact on an individual’s ability to maintain a security clearance.

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DOHA Security Clearance Tips

By John V. Berry, Esq., www.berrylegal.com

A frequent topic that comes up in our law firm’s security clearance practice involves the issue of how to best prepare for an upcoming personal appearance or administrative hearing before the Department of Defense, Defense Office of Hearings and Appeals (DOHA). While the topic could be covered in an entire book on the subject, we have put together a few observations in the process from our practice our this area of law.

It is very important to retain a lawyer familiar with the DOHA process. This is critical.  An attorney familiar with DOHA processes can best advise an individual in how to prepare and present their cases in order to give the best possible opportunity for a successful outcome.

How a Case Gets Scheduled for a DOHA Hearing

Typically, a case gets scheduled for a hearing before a DOHA Administrative Judge following a response to a Department of Defense Consolidated Adjudications Facility (DoD CAF) Statement of Reasons, the individual’s response to the SOR (and their request for a hearing). If a case is not resolved with the individual’s response, then the matter will be scheduled for an administrative hearing.  Usually, the attorney representing the individual  will be notified of the pending hearing and will be asked to correspond with the government’s attorney to schedule the hearing date.

DOHA Personal Appearance Process

When you receive a notice that your security clearance matter has been scheduled for a hearing before an DOHA Administrative Judge, there are a number of immediate issues that must be addressed in order to prepare for this very important presentation. It is important to realize that the Administrative Judge will have access to the entire case file of documents and information that was reviewed and/or considered by DoD CAF in making their earlier adverse determinations with regards to an individual’s security clearance.

Therefore, the key in preparing for one’s personal appearance is for the individual presenting their matter before the DOHA Administrative Judge to not just repeat earlier arguments made below, but to do their best to exhaustively present any and all other materials and/or witnesses that have not yet been reviewed in order to give one the best chance of obtaining a positive result. Character evidence can be extremely important

DOHA Personal Appearance Considerations

Here are some practices that we follow in our security clearance practice as we handle security clearance proceedings before DOHA during the administrative judge process.

1. Hearing Preparation: One of the most important aspects of the personal appearance is to thoroughly prepare for the administrative hearing. A DOHA hearing must be well planned out in advance. The applicant for the security clearance should be prepared to answer questions about the issues involved in the case. It is very important that that applicant also be prepared for potential cross-examination questions by government counsel.

2. Exhibits: Exhibits to support an individual’s case at a personal appearance are highly recommended and necessary. It is very important to gather as much evidence and/or documents in support of the individual’s security clearance matter as possible. If a written reference is to be submitted on behalf of an individual at a DOHA proceeding, it should be notarized where possible (or possibly in the form of a declaration) as these will be given more credence than those that are not sworn.

3. Government Exhibits: It is important to also be familiar with all of the government’s exhibits in preparation for the hearing.  The most typical exhibit for the government will be the personal interview and/or the previously completed SF-86. It is important for the applicant or clearance holder to be familiar with their prior submissions in preparation for cross-examination. One of the most frequent questions is whether or not the individual agrees or disagrees with any statement made in the personal interview.

4. Witnesses: It is important to ensure that all witnesses for the DOHA appearance are present, ready and prepared to testify before the Administrative Judge. These individuals can include fact witnesses, co-workers, supervisors, doctors, specialists, and others whose testimony may go to the issue of granting an individual’s security clearance. In our experience, administrative judges tend to take character witnesses seriously in close cases.

Conclusion

In sum, DOHA hearings are perhaps the most important part of the security clearance review process for DOD contractors and federal employees and should be treated as such. Despite any indications that the process can be undertaken by individuals without an attorney, I have found that to be an extremely unwise course of action which can have adverse circumstances. Anyone facing a DOHA administrative hearing should make the most of the opportunity to present a strong case in favor of the granting of a security clearance. If you need assistance with a security clearance case, please call us at (703) 668-0070 or contact us at www.berrylegal.com or through this page.

Security Clearance Appeals

By John V. Berry, Esq., www.berrylegal.com

Security clearance appeals can vary, depending on the federal agency that holds (or is reviewing) the individual’s security clearance.  We represent federal employees and government contractors, nationwide, before all federal agencies with respect to security clearance appeals.

Different Federal Agencies, Different Appeals Procedures

The most frequent federal agency to hear security clearance appeals is the Department of Defense (DoD), which often hears cases through the Department of Defense Consolidated Adjudications Facility (DoD CAF) and the Defense Office of Hearings and Appeals (DOHA). We represent federal employees and contractors in clearance matters before this agency (and all others, like DoS, DoI, DoT, DoJ, etc.), along with appeals adjudicated by the Intelligence Community (e.g. NSA, DIA, CIA, NGA, NRO).

It is important to note that while they are governed by the same Executive Order, each federal agency processes security clearance appeals differently. Our firm is versed in the different appeals processes for each agency.  Each federal agency generally provides for an in person (face to face or “personal appearance”) meeting to discuss the security clearance issues at issue either at Step 1 or Step 2 of the appeals process.  We generally recommend that an individual take advantage of this opportunity in responding in person, in addition to responding with a solid written response with exhibits.

Conclusion

If you need assistance in representation in a security clearance matter, please contact our office at (703) 668-0070 or through our contact page.