Recently, a client came to me seeking representation. He had just been unofficially advised that he was found ineligible for a Public Trust position. He anticipated receiving a formal denial letter with a Statement of Reasons (SOR) and wanted to get started on his appeal as soon as possible.1 He fully expected that he would be able to appeal the denial before an Administrative Judge (AJ) at the Defense Office of Hearings and Appeals (DOHA).
After a few minutes of questioning, I learned he had applied for a Moderate Risk Public Trust position to perform work for a defense agency as a contractor employee. I also learned that his investigation was based on the submission of a Questionnaire for Public Trust Positions (Standard Form 85P).
I explained to him that DOHA doesn’t handle Public Trust cases. And, he probably wouldn’t have the right to appeal the defense agency’s decision. There is no government-wide rule that affords contractor employees the right to appeal an adverse eligibility decision for a Public Trust position. A few federal agencies, like the Department of State, have their own policies that provide limited procedural due process (e.g. opportunity to submit a written rebuttal and request a review of the decision) for contractors that have been found unfit for a Public Trust position.
My client was certain that I was wrong and adamant that he had a right to appeal his case to DOHA. He had spent several hours researching case decisions at the DOHA website and pointed to a DOHA case decision (ADP Case No. 20-00241) with fact circumstances very similar to his. He claimed in that case the applicant successfully appealed the denial of public trust position. I looked at the case and indeed, the second sentence of the decision read: “Eligibility to hold a public trust position is granted.” The written case decision went on to use the term “public trust position” 14 more times. Never once were the terms “sensitive position,” “trustworthiness determination,” or “position of trust” used. These are the terms normally associated with sensitive national security positions that do not require access to classified information.
I found several more DOHA case decisions that used the term public trust position. Some of them specifically mentioned the submission of a Questionnaire for National Security Position (Standard Form 86); others did not. The ones I saw had “ADP” case numbers rather than “ISCR” (Industrial Security Clearance Review) case numbers. All of these case decisions were based on the eligibility criteria contained in Security Executive Agent Directive 4 (SEAD 4) – National Security Adjudicative Guidelines, which apply to sensitive national security positions, including those involving access to classified national security information.
DOHA AJs were misusing the term public trust position to mean sensitive national security positions. Public Trust positions are defined by Title 5 Code of Federal Regulations (CFR), Part 731—specifically §731.106. Public Trust eligibility for federal competitive service positions is adjudicated based on the criteria at §731.202. These are called “suitability” determinations. The Office of Personnel Management recommends that these same criteria also be used for adjudicating eligibility for federal excepted service positions and for contractors, which are called “fitness” determinations.
It’s important to understand that all positions that require access to classified national security information are sensitive national security positions; however, not all sensitive national security positions involve access to classified information. The most common examples of this within the Department of Defense are positions in the Armed Forces and those designated as ADP I and ADP II. This is explained in Title 5 CFR Part 1400—specifically §1400.201. It is also reinforced by the title to SEAD 4, “National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position.” [Emphasis added]
It’s easy to consider a Public Trust position as being sensitive, but the government uses words in a very special way within certain programs. For example, “Suitability” and “Fitness” connote the same idea, but within federal personnel vetting programs, one term is used exclusively for competitive service positions and the other for excepted service and contractor positions. In the same way “risk” and “sensitivity” are different. All federal positions should be designated for both risk and sensitivity. Public Trust positions are designated as either Moderate Risk Public Trust or High Risk Public Trust. Sensitive national security positions are designated as either non-critical sensitive, critical sensitive, or special sensitive.
The 2012 Federal Investigative Standards (FIS) define Public Trust Position as “Any position so designated under Title 5 CFR Part 731. The FIS also provides the following definitions of five investigative tiers:2
3.1.1. Tier 1. Investigations conducted to this standard are for positions designated as low risk, non-sensitive, and for physical and/or logical access, pursuant to Federal Information Processing Standards Publication 201 and Homeland Security Presidential Directive-12, using Standard Form 85, or its successor form.
3.1.2. Tier 2. Investigations conducted to this standard are for non-sensitive positions designated as moderate risk public trust, using Standard Form 85P, or its successor form.
3.1.3. Tier 3. Investigations conducted to this standard are for positions designated as non-critical sensitive, and/or requiring eligibility for “L” access or access to Confidential or Secret information. This is the lowest level of investigation acceptable for access to classified information, using Standard Form 86 or its successor form.
3.1.4. Tier 4. Investigations conducted to this standard are for non-sensitive positions designated as high risk public trust, using Standard Form 85P, or its success form.
3.1.5. Tier 5. Investigations conducted to this standard are for positions designated as critical sensitive, special sensitive, and/or requiring eligibility for “Q” access or access to Top Secret or Sensitive Compartmented Information (SCI), using Standard Form 86, or its successor form.
The misuse of the term Public Trust Position is only one example of where some security professionals are getting it wrong. Many also misuse the term “appeal” when referring to a response to a notice or letter of clearance denial. The initial response to such a notice is not an appeal; it is a request for a higher-level review of the decision, which can include a written answer or reply to the security concerns listed in the notice. An “appeal” can only occur after the higher-level review either affirms or reverses the original decision. An appeal is made in writing to a high-level panel of at least three members, commonly called a Personnel Security Appeal Board (PSAB). This is clearly spelled out in Section 5.2. of Executive Order 12968.
Another often misused term is “scope” (e.g. out of scope or in scope) to mean an investigation is or is not beyond the date when a reinvestigation is required. Investigative scope is actually “the time period covered and the sources of information contacted during a Personnel Security Investigation.”
A good glossary of security terms is helpful, but they are rarely updated and sometimes even good glossaries get it wrong. A good glossary won’t help if a security professional misuses a term in an official document. Words are important and the misuse of words can cause confusion and wasted effort.
1 Like many people, my client misused the word “appeal” to mean a request for review of and a response to a preliminary adverse clearance determination.
2 Extracted from a redacted version of the 2012 Federal Investigative Standards obtained in response to a Freedom of Information Act request.
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William H. Henderson is a former Army Counterintelligence Agent and a retired federal clearance investigator. In 2007 he began helping clearance applicants from the pre-application stage through representation at hearings. Since 2012, he’s been the Principal Consultant at the Federal Clearance Assistance Service (FEDCAS). His two books on security clearances have been used at five universities and colleges, he’s contributed scores of articles to ClearanceJobs.com, and he’s been retained as an expert witness in several state and federal lawsuits.
