Government security clearances are a vital requirement for many civilian jobs with the federal government as well as for government contract employees. However, the government may deny clearance applications or revoke or downgrade clearances already granted. Such actions obviously threaten an employee's position with the government or their company. Employees facing revocation or denial of their security clearance are entitled to administrative redress, including hearings, to present their case for retaining their clearance.

Holding and maintaining this security clearance is a valuable asset to you. Keep in mind that you have no right to get or maintain this security clearance – it is something that has been given to you because you have proved you are a loyal and trustworthy to the United States Government.

In working with clients on security clearance problems there are three things you need to remember Honesty, Accuracy, and Mitigation.

Be honest, be accurate.  If you are not honest in the security clearance process, you will not get, or you will lose a clearance.  If you have inaccuracies in your application or Defense Security Services (DSS) interview you will have to explain why they are good faith errors or mistakes, and not deliberate evasions or lies.  So be honest and accurate.

Remember that the burden is on you to prove you are a person “whose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling, and protection of classified information.” If there is a concern about any of these factors, you are “guilty” until you prove your trustworthiness. In 1988, the United States Supreme Court ruled in Department of the Navy v. Egan, that there is no right to a security clearance. There is almost total discretion to grant or deny a clearance.

An adjudicator makes the initial determination on whether to grant or revoke a security clearance.  The applicant is evaluated using the “whole person” concept.  There are a host of security concerns or disqualifying conditions set out in various Executive Orders and Guidelines that cause adjudicators to recommend denial or revocation of a clearance. Some of the most common conditions, which will leave you disqualified, relate to alcohol or drug abuse, financial irresponsibility and criminal conduct. Since 9/11, foreign influence or preference, either yours or your spouse, if he/she is a foreign national could also play a factor.

Concerns about the misuse of information technology systems are also starting to become prevalent.  Most employees have access to government computers and the intra/internet.  There are rules for when and how and for what a person uses government computer systems. Anything from downloading pornography to viewing a video on YouTube.com on your lunch break could be a cause for some serious questions or even revocation of a clearance, not to mention disciplinary action.

Most people who get a security clearance keep it for their career. However, for some questions are raised by DSS or worse you are notified that you are disqualified from holding a clearance.  Mitigation is what you do when you get the bad news.  Along with the listings of disqualifying conditions, the rules have mitigating conditions.  Your goal in the appeals process is to convince the decision maker that the disqualifying condition is mitigated or lessened.  Passage of time is a frequent mitigator. Perhaps your financial problems occurred years ago and you’ve had stable finances since. Or maybe your financial problems happened because of a sudden, serious, and very expensive illness.  Bankruptcy is not by itself a reason to deny a clearance; it’s what you did to become bankrupt, and what you’ve done with your finances since. You might have had a shoplifting conviction, but it was five years ago. Foreign preference or influence disqualifying conditions can be mitigated by a detailed analysis of your family history and foreign contacts.

What if you think there’s a problem?  A lawyer experienced in security clearance cases can prescreen your case before submitting the security clearance application. If you have received a letter of intent to deny or revoke a clearance from your agency, you have various routes to appeal. The process differs somewhat from case to case, but each path of appeal has an option for a personal appearance in front of a judge.  Rarely should you rely solely on written rebuttals and letters. You’ll generally fair better with a personal appearance and representation by a lawyer experienced in security clearance cases – interestingly the Defense Office of Hearings and Appeals will likely tell you their statistics help establish the point.

The attorney's at Tully Rinckey have had considerable experience in representing employees in security clearance matters. In fact several of the attorneys at Tully Rinckey still maintain security clearances. If you are having a problem related to a government-issued security clearance, call Tully Rinckey at 202-787-1900 to set up a consult and protect your Security Clearance.