Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com
what can clearance applicants do if they feel they’re the victim of discrimination?
Racism. Sexism. Ageism. As Ferris Bueller once famously opined, “isms, in my opinion, are not good.” They’re especially bad if you are on the receiving end and the purveyor of said “ism” is your security clearance investigator. So how often does this happen and what can you do about it?
I think it is fair to say that most security clearance investigators are fair-minded people who are doing their best to protect national security. But, like in any profession, there are bound to be a few bad apples. To my knowledge there is no central database where allegations of bias or prejudice against those bad apples are kept (except perhaps an individual investigator’s personnel file). The result is that we really don’t have a good grasp on how pervasive the problem of investigator prejudice may or may not be.
What we do know is that it does happen. I have been involved in several cases where an investigator made inappropriate comments to a subject or shared unsolicited opinions on a topic like religion or politics that the subject found offensive. As I discussed in my last article, the investigative component of the security clearance process is supposed to be objective. Unfortunately, sometimes the human factor just gets in the way.
When to act when you suspect bias
Where your security clearance investigator does exhibit clear signs of bias against you, swift action on your part is a must. I recommend that you start by having your attorney immediately document your allegations in a formal memorandum to your investigator’s supervisor. Understandably, some people are hesitant to rock the proverbial boat; after all, your career and livelihood are literally in the hands of your investigator. But waiting until an adjudicative decision on your clearance – and hoping that the prejudice your investigator exhibited to you won’t taint his or her investigatory report – is not a wise idea. At that point, it may appear as though the allegation of bias is in retaliation for adverse action on your clearance.
No matter when in the process you report investigator bias, it will always be a he said-she said situation. Contrary to some rumors I have heard, investigative interviews are never recorded. The difference is that making the report promptly – and before adverse action is taken on your clearance – makes you more credible. And credibility is everything in these situations.
Your (Non-Existent) Legal Rights
But what about the plethora of non-discrimination laws on the books? Employees sue employers all the time for discrimination, so surely a federal court could correct any obvious discrimination against you, right?
Wrong. Perhaps the most important reason why you need to speak-up early in the process is that, unlike virtually every other action taken by an employer against an employee, security clearance determinations are not reviewable by the courts. In the 1988 case Department of the Navy v. Egan, the U.S. Supreme Court unequivocally held that security clearance determinations are strictly within the ambit of the Executive Branch as part of the President’s national security function. Thus, the federal courts are powerless to help you even if you were legitimately discriminated against! That’s a rude awakening in light of the Supreme Court’s own motto, “Equal Justice Under Law.”
Given the refusal by the courts to get involved in security clearance matters, the sole recourse for a victim of discrimination is administrative: proactively addressing the issue with your investigator’s chain of command. This can result either in a new investigator being assigned to your case and/or a careful review by a supervisory investigator to ensure that no evidence of bias made it into your investigatory report. But remember that there is a limited window in which you can credibly file your complaint. Don’t wait until it is too late.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.