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
Whoever invented the JPAS incident reporting system managed to do something they probably never anticipated: drive security clearance attorneys to the point of near-insanity.
The phones at our law firm ring off the hook with people calling to inquire about what can be done to resolve – or at least expedite resolution of – an incident report. Believe me: I get the frustration. The JPAS incident reporting system is a broken one ripe for abuse. It needlessly impacts careers. The bureaucracy involved is mind-boggling.
Out of sympathy, we used to occasionally advocate for clients in meritorious cases – essentially harassing the relevant federal agency until action was taken on the client’s case. Over time, however, we have discovered that these are exhausting and largely fruitless efforts given the lack of any statute or regulation to back-up our advocacy. In other words, there is nothing that we, you, your employer, or your FSO can do to force the resolution of a JPAS incident report.
To explain why, here are answers to some of your most frequently asked questions.
ISN’T THERE SOME SORT OF REQUIRED TIMELINE FOR ADJUDICATION?
No. As the federal courts have held repeatedly, federal agencies are given near total deference in conducting and managing their security clearance processes. We have seen JPAS incident reports sit for as little as a few months, and we’ve seen them sit for as long as five years (seriously). The speed – or lack thereof – by which incident reports get resolved is dependent upon a variety of factors: the consolidated adjudications facility (CAF) handling your case; whether the nature of the report constitutes a perceived imminent threat; and, whether you have an otherwise routine re-investigation scheduled (during which the incident report can be “cleared” via the normal reinvestigation process). There is really no way to predict how long it will take for a JPAS incident report to be resolved, nor an argument to be made that undue delay is a violation of your due process rights. The only “due process” available in security clearance cases is that which is granted by Executive Order 12968. Those protections are not constitutional in nature because no one has a “right” to a security clearance.
DOES A JPAS INCIDENT REPORT MEAN THAT MY SECURITY CLEARANCE IS SUSPENDED?
No! Unless JPAS specifically indicates that your clearance is suspended (which is somewhat rare and should result in a letter notifying you of that decision), a JPAS incident report has no bearing on your ability to perform your duties or access classified information. The alternative would mean that your security manager or employer could suspend your security clearance unilaterally, creating even more potential for abuse than already exists. In fact, only the federal agency that issued your clearance has the right to suspend it (exception: military commanders can suspend subordinate security clearances). Nonetheless, we have encountered a number of FSO’s who erroneously conflate a JPAS incident report with a suspended clearance. If someone is claiming that your clearance or facility access is suspended, demand to see it in writing from the federal agency that holds your clearance.
WHAT DOES THE GOVERNMENT DO WITH AN INCIDENT REPORT?
Besides letting it languish, the government has three options: (1) adjudicate the report without any additional information or action; (2) order an investigation into the matter – during which time your clearance may or may not be suspended (see above) – and either adjudicate the developed information favorably or issue a Statement of Reasons; or (3) request additional information from the security clearance holder.
Option 1 is reserved for the obviously stupid or vindictive incident reports, of which I see many. Option 2 is for the more serious cases (e.g. an allegation of employee theft, a second time DUI, a bankruptcy, etc.). Option 3 is for those cases where some concern exists, but not enough to warrant an outlay of limited investigative resources (e.g. often a first-time DUI).
If you receive a written request for information from a federal agency, I strongly recommend consulting with a security clearance attorney to hopefully avoid the matter progressing further.
ISN’T THERE ANYTHING THAT I CAN DO?
I recommend two things in every case:
- Obtain a copy of your JPAS records, so that you can see firsthand what the report alleges and prepare yourself to address those allegations. An attorney-drafted records request letter is available here.
- Call your Congressperson and request an inquiry letter to the appropriate consolidated adjudications facility as to the reason for the delay. Federal agencies are required to respond to Members of Congress; the annoyance at having to do so may finally prompt some movement on your case.
Finally, understand what NOT to do while an incident report is pending. Don’t leave a cleared position unless you already have another one lined up with an employer who knows about the incident report and is still willing to take you on. The alternative is that your incident report goes to “Loss of Jurisdiction” status and never gets resolved until and unless you find another cleared employer willing to sponsor you.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.