ADVICE FROM THE GENERAL COUNSEL
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.
On at least a weekly basis, someone calls my office with the following question (or some variation of it):
“I recently found out that my employer (or former employer) entered an ‘incident report’ about me into JPAS. Now my clearance is suspended or ‘flagged.’ How do I get this resolved? Can I sue the employer for slander?”
To start, I assume that most of you reading this article are already quite familiar with JPAS. If you’re not, you should simply know that it is a Department of Defense-maintained database that houses the security clearance records of DOD personnel, contractors, and employees of some other federal agencies that have opted to use the system. Authorized users (mainly facility security officers) use it to verify an employee’s security clearance. The system can also be used to report derogatory information on an employee or contractor to the government.
Technically, employers are required under federal guidelines to report via JPAS any adverse information which could affect an employee’s security clearance. But there is a lack of clear guidance on what actually constitutes adverse information. As a result, some employers take JPAS reporting too far.
Legal Obligation or Retaliation?
In the vast majority of cases, an incident report by an overzealous security officer provides no basis for a lawsuit. You can’t sue someone for complying with a legal obligation. There are, however, cases where an incident report is clearly filed as retaliation. If a reasonable, objective person would view the reported information as baseless AND the report has materially affected your career or income, there may be grounds for legal action against the employer. Its rare, but not inconceivable.
One of the times where a lawsuit may be particularly viable is if a retaliatory incident report was submitted in conjunction with an employee’s termination. The unfortunate quirk with JPAS incident reports is that the government will only adjudicate them if the subject is currently in a position requiring a security clearance. This places many federal contractors in what is, effectively, a no-man’s land: they can’t get the incident report adjudicated unless they are in a cleared position, but no employer will hire them with an incident report pending.
What to Do if an Incident Report is Filed
Fortunately, there are some proactive steps you can take if an incident report has been filed against you. To start, get informed by requesting a copy of your own JPAS records under the Privacy Act. The government will send them to you for free in about 2 weeks (lightning speed for the federal bureaucracy) and you will be able to see the actual text of the incident report. You can download an attorney-drafted request letter here.
Once you know exactly what was reported about you, consider seeking expert help on steps you can take to proactively mitigate the issue before any reinvestigation is triggered and/or before the government issues a Letter of Intent to revoke your security clearance. In some cases, it may also be worth reaching out to the government to provide additional information that could help adjudicators resolve your case without the need for any new investigation. A qualified security clearance attorney can help you do this in a way that doesn’t harm any legal defenses you may have available to you – something which is of critical importance if the incident report was filed due to alleged criminal conduct.
Alternatively, if you are looking for work but encountering problems with prospective employers due to an unresolved incident report, an “attorney opinion letter” on the merits of the incident report (and its likely effect on your security clearance) can sometimes help assuage employer fears of hiring an applicant who will not regain their clearance.
No matter what the situation, understand that DOD moves at glacial speed in adjudicating these cases. Don’t expect a fast resolution.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.