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Legal Insider: When to Consult with a Security Clearance Lawyer

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.

We meet with federal employees and government contractors who are facing issues in the security clearance process.

They often ask our attorneys at what point they should consult with a security clearance attorney to assist, advise or represent them. The usual response is that an individual with a potential security concern should do so as soon as possible. Generally, the earlier that a person with possible security concerns consults with a security clearance lawyer, the better the odds become in avoiding a potential adverse outcome.

What Does a Security Clearance Lawyer Do?

There are a number of ways that an experienced lawyer in security clearance law can help someone with security concerns. It is often the case that they can advise an individual regarding potential strategies before a security clearance problem develops.

We have found that most individuals have a good sense as to whether or not they may have a security concern (e.g. recent drug use, bankruptcy, foreign contacts) as they prepare to complete their security clearance forms like the e-QIP, SF-86 and/or different various of the SF-85. The earlier advice is sought when there is an issue, the more that can be possibly done to mitigate the concern.

Clearance lawyers also advise individuals during the investigative process and during any security clearance responses or appeals.

Delays Can Hurt the Ability to Mitigate Security Concerns

One of the major issues that we see in the clearance process is where an individual has waited too long to consider or in starting to address a potential security clearance concern until it may be too late.

Sometimes, individuals who have had financial issues which could have been explained or refuted initially, wait too long thinking that if they lose during the clearance hearing or personal appearance that they will just retain an attorney further on in the appeals process. This is usually the worst strategy.

When people with serious security concerns have waited too long to address them, or gone through an in person response without representation, it is usually too late to do much on further appeal. One example I remember is a case where a government contractor had an alleged debt that was overdue, didn’t respond with evidence that it was not his debt thinking that he could appeal it after the administrative judge had ruled.

The debt was clearly not his, but because the clearance appeal could only be based on the evidence already presented, the clearance could not be saved.

Early Advice Can Save Embarrassment and Help Career

It is not uncommon that we anticipate a serious issue with someone obtaining a security clearance, i.e. recent arrest or recent drug use and recommend backing out of the process before a final decision is rendered. In serious cases where it looks like a security clearance may not be granted, a clearance lawyer can advise an individual about whether or not to accept the position and move forward or quietly decline and try later.

It can be the case that an individual can withdraw from the process, wait a bit more time to go through the clearance process and potentially resolve the issues later. This helps them avoid the embarrassment of taking on employment and leaving their current position only to be terminated a short time later when their clearance is not approved and they are left unemployed.

It can also help them potentially avoid having to declare a negative clearance outcome on future forms. A security clearance lawyer can also help to put an applicant’s mind at ease if they are concerned about an issue.

Legal Representation in Clearance Denials or Proposed Denials

If an interim or permanent security clearance is at risk or is denied, an individual will definitely need a security clearance lawyer. Each federal agency uses the same adjudicative guidelines but have unique procedures to that agency for processing and appealing an outcome. This is the case even though all federal agencies fall under the same Executive Order 12968.

It is also important that the individual consult with experienced counsel where they can explain any issues that individual federal agencies are particularly sensitive to. For instance, the FBI is more sensitive to prior drug use by applicants or employees and many intelligence agencies are sensitive to the potential for foreign influence; each federal agency varies.

Each federal agency usually has a written and personal appearance stage (or hearing) for those who need to appeal a denial or proposed denial in the security clearance appeals process. While different, each federal agency will provide some form of a Statement of Reasons (SOR) or Notice of Intent to Revoke (NOI) which explains, to varying degrees, the security concern(s) at issue.

An experienced security clearance lawyer will be versed in the latest agency rules governing responses and appeals before the individual agency involved and will be able to assist a person in preparing their written submission and representing them during the hearing process.

Conclusion

If you are in need of security clearance representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

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