Archive for security clearance

Waiting in Limbo Due to a Pending Security Clearance Adjudication?

When an employee’s security clearance eligibility comes into question, the length of time it takes to adjudicate that employee’s security clearance eligibility can feel painstakingly long. For civil service employees employed by the Department of Defense (DoD), adjudications of security clearances are performed by a central DoD Agency called the Department of Defense Consolidated Adjudication Facility (DoD CAF).

Even when an employing agency is the initial agency to suspend an employee’s access to classified information, the decision on whether or not that employee will be allowed to keep his or her security clearance eligibility is ultimately made by the DoD CAF.

It seems that the length of time for the DoD CAF to adjudicate security clearance eligibility can range from a couple of weeks to more than a year. In many adjudication proceedings, the employee’s security clearance eligibility first comes under review when the employing agency sends alleged “derogatory information” about the employee to the DoD CAF. When this happens, the employing agency will often also suspend the employee’s access to classified information while the DoD CAF adjudicates the employee’s security clearance eligibility. Depending on the type of job the employee performs and where he or she works, the suspension of an employee’s access to classified information can be devastating. If the employee works in a sensitive area or performs work requiring a security clearance, the employee may not be able to perform his or her regular duties while the employee’s clearance eligibility is being adjudicated. Some employees even find themselves in the financially compromising position of being indefinitely suspended from their jobs while their security clearance eligibility is being adjudicated. Because it is never known just how long the DoD CAF will take to adjudicate an employee’s security clearance, employees who are indefinitely suspended may be without work for months or even years.

Employees who are indefinitely suspended due to a security clearance adjudication can apply for and work other jobs while they are waiting on their security clearance decision. However, the chance of being selected for a job requiring a security clearance is very unlikely when the employee’s security clearance eligibility is still being adjudicated by the DoD CAF. Some employees who are indefinitely suspended pending their security clearance adjudication may be eligible for unemployment compensation.

A question we frequently receive from employees whose security clearances are being adjudicated is: “Can anything be done to speed up the process?”. The short answer to that question is: “Perhaps.” Federal employees have the ability to contact their Congressperson’s office to file a Congressional Inquiry on their behalf for various questions or concerns about their federal employment. For employees who are waiting to receive a determination on their security clearance eligibility from the DoD CAF, the filing of a Congressional Inquiry will elicit a response from the DoD CAF to the Congressperson’s office regarding the status of the employee’s security clearance adjudication. The Congressional Inquiry can also serve as a bit of a prompt or reminder to the DoD CAF that further action needs to be taken with regards to the employee’s security clearance adjudication.

Filing a Congressional Inquiry does not normally require representation from an attorney, although if you would like to consult with an attorney before filing your Congressional Inquiry, you are welcome to do so. Many members of Congress have websites that allow constituents to electronically request help dealing with federal agencies, such as the DoD CAF. Alternatively, federal employees can also request a Congressional Inquiry by calling their Congressperson’s servicing district office and speaking directly with a staff member of the Congressperson’s office.

If you are unsure of who your servicing Congressperson is, you typically need to look no further than the internet. The website for the U.S. House of Representatives has a “Find Your Representative” tool in which you can enter your zip code, and the name of your servicing Congressperson in the U.S. House or Representatives will be generated for you (https://www.house.gov/representatives/find-your-representative).

In general, filing a Congressional Inquiry can be a simple, cost-effective way of getting the DoD CAF to provide information regarding the status of your security clearance adjudication. While a Congressional Inquiry does not necessarily guarantee that your security clearance adjudication will be completed quickly, it at least provides a way of drawing attention to your pending issue and learning the current status of your adjudication. If you are a DoD employee who has been waiting several months or more for your security clearance eligibility to be adjudicated by the DoD CAF, you may want to consider contacting your Congressperson’s office to initiate a Congressional Inquiry on your behalf. If you would like to discuss your situation with an attorney at our office, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys.

Security Clearances in Federal Employment

Many federal government employees are required to hold or be eligible to hold security clearances due to the nature of their work.  In the federal government, security clearances add an additional layer of complication to workplace requirements, and when employees are faced with an allegation that may affect their continued ability to hold a security clearance, lots of questions and confusion are bound to arise.

For Department of Defense employees, the Department of Defense Consolidated Adjudication Facility (DoDCAF) is primarily responsible for issuing security clearances to employees.  In making security clearance determinations, the DoDCAF relies upon certain adjudicative guidelines pertaining to certain types of behavior that may give rise to a concern about a person’s ability to hold a security clearance.  The adjudicative guidelines include Personal Conduct, Financial Considerations, Alcohol Consumption, Drug Involvement, Criminal Conduct, and a number of other items.  If the DoDCAF determines that one or more adjudicative guidelines may be applicable to a certain employee or applicant, the DoDCAF will issue a “Letter of Intent” to revoke or deny the person’s security clearance eligibility.  Every Letter of Intent includes a “Statement of Reasons” specifying the adjudicative guidelines that are called into question and the facts giving rise to the Letter of Intent.  The employee is then given the opportunity to respond in writing to the Letter of Intent by explaining any and all mitigating conditions and providing relevant documentation to support a finding that any security concern has been sufficiently mitigated.

If the DoDCAF ultimately decides to revoke or deny a person’s security clearance eligibility, the person will typically be able to elect to proceed to a personal appearance before an Administrative Judge who works for the Defense Office of Hearings and Appeals (DOHA).  The assigned Administrative Judge will then conduct a hearing and render a recommendation to the DoD Personnel Security Appeals Board (PSAB), which will then make a final determination regarding the person’s eligibility to hold a security clearance.

It is important to take the security clearance process very seriously from start to finish, as an employee’s ability to hold a security clearance is often a condition of their employment.  If the DoDCAF issues a final decision ultimately revoking or denying an employee’s security clearance eligibility, such a decision can lead to adverse action procedures within that employee’s federal employment.

If you have been issued a Letter of Intent to revoke or deny your security clearance eligibility and would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys.

MSPB Reverses Indefinite Suspensions Pending Review of Security Clearances

US-MeritSystemsProtectionBoard-Seal In a series of recent decisions, the Merit Systems Protection Board (MSPB) reversed the indefinite suspensions of federal government employees who had been suspended from their civil service jobs without pay pending decisions regarding the status of their security clearances.

The MSPB ordered the employing agencies to cancel the indefinite suspensions of the employees and pay corresponding back pay and benefits. Have you been affected by an indefinite suspension pending an outcome regarding the status of your security clearance? If so, contact the law firm of Bonney, Allenberg & O’Reilly regarding your specific needs at 757-460-3477.

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