The Jeffrey Law Group, PLLC, provides counseling and assistance to federal employees, applicants, and contractors through all stages of the personnel security clearance adjudication process. Specifically, our attorneys provide:
As noted by the U.S. Supreme Court in Department of Navy v. Egan, “no one has a “right” to a security clearance.”1 Nevertheless, the Executive Branch of the Federal government must follow minimum due process requirements in determining whether or not it is clearly consistent with interests of national security to grant or deny a security clearance applicant access to classified information.2 In order to be found eligible for a Personnel Security Clearance (PCL), an applicant must show that he or she is able and willing to safeguard national security information, based on his or her loyalty, character, trustworthiness and reliability.
Executive Order (E.O.) 12968 lays out the minimum due process requirements in cases in which the federal government has reached the decision that it is not clearly consistent with the national interest to grant or continue a security clearance for access to classified information to an employee or applicant who holds or requires a security clearance needed in connection with his or her employment.3 Specifically, E.O. 12968 provides applicants and employees whose security clearance is denied or revoked with: (1) a comprehensive and detailed written explanation of the basis for that conclusion; (2) any documents, records, and reports upon which a denial or revocation is based;4 (3) the right to be represented by counsel; (4) a reasonable opportunity to reply in writing to, and to request a review of, the determination; (5) written notice of and reasons for the results of the review; and (6) an opportunity to appear personally and to present relevant documents, materials, and information at some point in the process before an adjudicative or other authority, other than the investigating entity, as determined by the agency head.5
In addition, E.O. 12968 authorizes agency heads to provide additional review proceedings. Both the Department of Defense and the Department of State have promulgated such regulations. Pursuant to the Department of Defense Personnel Security Program Regulation (DoD 5200.2-R), military personnel and civilian members of the Department of Defense may appeal a determination by their Central Clearance Facility to deny or revoke their security clearance to the Department of Defense, Defense Office of Hearings and Appeals (DOHA).6 Upon appeal, DOHA administrative judges conduct a personal appearance and issue written recommended decisions to the Personnel Security Appeals Board of the appealing member’s component.
Pursuant to the U.S. Department of State Foreign Affairs Manual Volume 12 – Diplomatic Security, employees and applicants of the Department of State may request review of the determination to deny or revoke his or her security clearance to the Assistant Secretary for Diplomatic Security.7 If the Assistant Secretary sustains the denial, the employee or applicant will than have the opportunity to appeal that decision and appear in person before the Department of State’s Security Appeals Panel.
Executive Order 10865 governs the adjudications, due process hearings, and appeals of security clearance cases for private sector employees, i.e., Federal contractors.8 Created as a result of the U.S. Supreme Court’s decision in Greene v. McElroy, 360 US 474, 79 S.Ct.1400, 3 L. Ed.2d 1377 (1959), Executive Order 10865 lays out the minimum due process requirements in cases in which the federal government has reached the preliminary decision that it is not clearly consistent with the national interest to grant or continue a security clearance for access to classified information to a person who holds or requires a security clearance needed in connection with his or her employment. Contractor employees applying for security clearances have been receiving essentially the same administrative due process since 1960, pursuant to DoD Directive 5220.6, which implements Executive Order 10865.9
Specifically, DoD Directive 5220.6 provides a federal contractor whose security clearance is proposed to be denied or revoked with: (1) notice of the specific reasons for the proposed action; (2) an opportunity to respond to the reasons; (3) the right to a hearing, including the opportunity to cross-examine persons providing adverse information; and (4) the right to be represented by counsel.10
Contact The Jeffrey Law Group, PLLC, The Federal Employee’s Law Firm®, today at 202.312.7100 for an initial consultation regarding your PCL needs.