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Firm receives favorable ruling in security-clearance case.

Earlier this year, Lanier Ford’s Federal Government Contracting team earned a favorable decision in a security-clearance revocation before the Defense Office of Hearings and Appeals (DOHA) within the U.S. Department of Defense (DoD). The matter came before the DoD after the agency became concerned about the security clearance level held by an employee of a private-sector contractor. The DOD issued a statement of reasons to the employee (the applicant) in which the DoD sought to revoke applicant’s security clearance because of financial difficulties the applicant faced. After a hearing on the matter, the DOHA determined that the applicant was not a security risk and was therefore eligible for security clearance. See In the Matter of: *** Applicant for Security Clearance, ISCR Case No. 12-11841, 2015 WL 1881742, at *1 (DOHA Apr. 20, 2015).


The applicant had experienced some financial difficulties stemming from a period of unemployment as well as unexpected expenses. However, the applicant and his wife had been working to reduce their expenses and had arranged schedules for paying back their debts. The applicant’s former supervisor additionally indicated that the applicant “was considered a good employee and trustworthy.”

Rationale of Decision

The DOHA noted that “[w]hen evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines.” However, “[t]hese guidelines are not inflexible rules of law,” but rather, “recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process.” In reaching a decision, “[t]he administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision.” As a result, “the entire process is a conscientious scrutiny of a number of variables known as the ‘whole-person concept.’” Additionally, “[t]he protection of the national security is the paramount consideration,” and “any doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.”

Security concerns can arise from several different types of financial difficulties, such as “[f]ailure or inability to live within one’s means, satisfy debts, and meet financial obligations.” This “may indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information.” Additionally, “[a]n individual who is financially overextended is at risk of having to engage in illegal acts to generate funds.” Conversely, there are several “conditions that could mitigate security concerns arising from financial difficulties, such as “the conditions that resulted in the financial problem [being] largely beyond the person’s control,” and “the individual [having] acted responsibility under the circumstances.” It also helps if “the person has received or is receiving counseling for the problem,” if “there are clear indications that the problem is being resolved,” and if “the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts.”

In this case, the administrative judge found that the “applicant ha[d] acted responsibly regarding his delinquent debts.” Relevant to this decision was the fact that the circumstances leading to the financial problems, both the unemployment and the unexpected expenses applicant faced, were largely beyond the applicant’s control. In addition, the applicant was taking steps to mitigate the financial problems and had already implemented a payment plan and began repaying many of the debts. Thus, under the whole-person concept, the administrative judge found that the “applicant mitigated the security concerns arising under the financial considerations guideline.” Therefore, the administrative judge ruled that “it [was] clearly consistent with the national interest to grant applicant a security clearance,” so the judge granted “[e]ligibility for access to classified information.”

Download a copy of the decision.

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.


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Monday, 19 November 2018

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