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DEPARTMENT OF AGRICULTUREEmployees and Applicants for EmploymentQ: Within the U.S. Department of Agriculture (USDA), who will adjudicate my case and decide whether to revoke, deny or grant clearance? A: The Personnel Security Division (PSD) in the Office of Crisis Planning and Management will review all the information gathered from your background investigation and make an initial decision whether to revoke, deny or grant clearance. If PSD decides to revoke or deny clearance, PSD will provide you with a Letter of Intent, which will include a statement of reasons. If you already have a security clearance, and your case is being readjudicated, your clearance might be suspended until a final determination is made whether to grant or revoke clearance. The Personnel Security Officer of the PSD will make the decision whether to maintain your security status or to suspend your clearance after looking at all of the information that has arisen during the reinvestigation. If the Personnel Security Officer decides to suspend access to classified information, he will notify you in writing, including a statement of reasons for the suspension. Q: Can I get a copy of the record upon which the initial decision was based? A: Within 30 days after you receive a Letter Of Intent with a statement of reasons, you may request any documents, records and reports that were used as the basis for the denial or revocation. These will be provided to the extent that such documents would be provided if requested under the Freedom of Information and Privacy acts. Within that same period, you may also request the entire investigative file, as permitted by national security. If you need information that is not under the control of the USDA (i.e. investigative reports completed by the Office of Personnel Management), you must request that information directly from the originating agency. If you do not know where information is located, PSD will provide the name and address of the Agency/Department, so you can contact the proper Agency/Department. However, PSD must receive a copy of any request for information made to another Agency/Department, within 30 days of the date of the Letter of Intent. Q: Can I respond to the statement of reasons? If so, how long do I have to respond? A: Yes, if you believe the wrong determination was made and you wish to provide mitigating factors for the behavior or actions creating concern, you may write a response to the statement of reasons. You have 30 days after you receive the last requested document to respond to the statement of reasons. Q: Do I have a right to representation? A: Throughout the entire adjudication process, you have a right to be represented by counsel or any other representative, at your own expense. Q: Who will review my response to the statement of reasons? A: PSD will review your written response, along with all of the material in the record, and determine whether the record indicates you pose a risk to national security. If you decide not to write a response, PSD will still review all of the case material after they issue a statement of reasons. PSD will then make a recommendation to the Department Personnel Security Officer. Q: What happens after a recommendation is made by PSD? A: The Department Personnel Security Officer will render an adjudicative decision to reinstate, deny or revoke your eligibility for security clearance. After this adjudicative determination is made, the Department Personnel Security Officer will provide you with a Letter of Notification that states the reasons for and the results of the determination. Q: Can I appeal the determination made by the Department Personnel Security Officer? A: If your security clearance is denied or revoked, you have the right to appeal in writing to the Personnel Security Review Board (PSRB). If you wish to appeal, you have 30 days to request an appeal. You will also be able to appear in person and present relevant documents, materials and evidence before a presiding officer of the Office of Administrative Law Judges (OALJ). If you choose to appear in person, the expenses incurred, including travel costs will be borne by the employing Agency/Office. Q: What should I include in my written request for an appeal? A: Your written appeal should address the disqualifying factors listed in the Letter of Notification and include any relevant documentation you wish the PSRB to consider. Additionally you should include your request for a personal appearance before the presiding officer. Q: How will the personal appearance proceed? A: Once you have made a request for a personal appearance, you will be notified of the date and location of the personal appearance. All appearances will be held in the Washington, DC metro area. The personal appearance will not exceed an hour in duration (unless there are extraordinary circumstances). While you are in front of the presiding officer of the OALJ, you will only be able to address the disqualifying factors mentioned in determination letter and address the information you have provided in the written appeal. If you wish to submit any additional documents or materials that you have not included in the written appeal, you must submit them to PSD two weeks prior to the appearance for PSRB’s review. PSRB will decide whether the additional information is relevant and can be entered into the record as an addendum to the written appeal. Only the presiding officer, you, your counsel and the Department Personnel Security Official will be present at the hearing. A transcript of the hearing will be prepared by the Office of the Hearing Clerk, certified by the presiding officer. Q: After the hearing, who makes a decision? A: PSD will provide the PSRB with the transcript of the hearing and all of the case documentation. PSRB will then issue a final written decision. The presiding officer cannot render any decision or opinion. PSRB may affirm the Department Personnel Security Officer’s determination; reverse the Department Personnel Security Officer’s determination; or grant the employee access to classified information with conditions. PSRB will provide instructions to enforce any terms of conditions established. If PSRB makes a favorable determination, PSD will grant the appropriate level of security clearance. U.S. Department of Agriculture Contractor Personnel Q: Who adjudicates my application for security clearance as an employee of a contractor for the USDA? A: Since the USDA is part of the National Industrial Security Program, Defense Industrial Security Clearance Office issues personnel security clearances for employees of contractors. Therefore, the initial request for security clearance will be made by the field security officer to DISCO, who will then forward the complete applicant security package to the Office of Personnel Management. OPM will conduct the investigation and send the completed investigation back to DISCO to adjudicate the application. In addition to submitting a request for clearance to DISCO, the facility security officer of the contractor must also submit a visitor authorization request to the Bureau of Diplomatic Security, Office of Information Security Technology, Information Security Programs Division, Industrial Security Branch (INB). Q: What happens if DISCO recommends that I am denied security clearance? A: The process is the same as the one established for Department of Defense contractor employees. If DISCO recommends security clearance be denied or revoked, they send the case to the Defense Office of Hearings and Appeals (DOHA). DOHA then reviews the case and will either direct DISCO to grant or continue a clearance or will issue a statement of reasons (SOR) as to why it is not clearly consistent with the national interest to grant or continue a security clearance. DOHA can also direct a further investigation, issue written interrogatories to the applicant or other persons, require a medical evaluation, or interview the applicant. Q: What is the next step after DOHA issues an SOR indicating its intent not to grant security clearance? A: Along with the SOR, will also be an explanation of the opportunity to respond and a notice of a right to a hearing. The SOR will set forth which of the guidelines and disqualifying factors DOHA is using to deny clearance. If you choose to answer the SOR, DOHA must receive your answer within 20 days after you receive the SOR. If you wish to have a personal hearing before an administrative judge, you must make the request in the response to the SOR. The response should provide a detailed answer to the SOR, admitting or denying each allegation, as well as providing other evidence of mitigating factors. You cannot just generally deny the entire SOR. The only way to get an extension for time to file a response is if there is good reason. If, based on the response, DOHA decides that the original accusations against you can no longer be supported, or if they decide there is not enough evidence of those accusations to go forward, they will withdraw the SOR and recommend DISCO to grant/continue security clearance. If they do not withdraw their SOR, the case will be forwarded to an administrative judge. Q: What happens after the case goes to the Administrative Judge? A: The following process depends on whether or not you requested a hearing. In either case you have the right to be represented by counsel or a personal representative of your choice. If a hearing was NOT requested: DOHA Department Counsel (the legal team that presents the case for denial of security clearance) will provide you with a file of all relevant materials that could be presented to the judge for making a decision based on the written record. After receiving this information you have 30 days to respond in writing. The response should contain any objections to and rebuttal of the evidence submitted by Department Counsel. It should also contain any mitigations and explanations for any disqualifying evidence. A quick note: Even if a hearing is not requested DOHA has the right to request a hearing as well. If a hearing IS requested: You will be notified at least 15 days in advance of the hearing of the time and place. Usually hearings are held in a city close to your residence or employment. You must appear in person on the date established by the judge. The hearing will be open unless you request otherwise. BEFORE the hearing, you and Department Counsel will exchange copies of any pleadings, documentary evidence, and other written materials that may be used as evidence. The hearing is adversarial. The Department Counsel has the responsibility of presenting witnesses and evidence that establish the facts in the SOR and you must present evidence and witnesses to rebut and offer mitigating factors. Ultimately, it is your job to persuade the judge that you should receive the clearance. The judge will issue a decision stating whether or not it is "clearly in the national interest" to grant a clearance. Q: Is there a right to appeal the Judge’s decision? A: You can appeal the judge’s decision within 15 days after the case has been decided. Department Counsel also has the opportunity to appeal the judge’s decision. Before appearing before the Appeal Board, each side will write an appeal brief, stating the issues. Specific portions of the record should be cited as proof of errors. If the Department Counsel is appealing, you have the opportunity to write a reply brief, but it must be submitted within 20 days after receiving Department Counsel’s brief. The Appeal Board has three administrative judges who will consider all the evidence already in the record. No new evidence will be considered. The Board’s decision is the final decision. The Appeal Board will either suggest clearance be granted, suggest clearance be revoked, or send the case back to the administrative judge to correct any identified errors or gather more information. Q: If upon the final decision security clearance is denied, can I ever reapply? A: Yes, but you are barred from reapplication for one year. Additionally, it is your responsibility to provide the Director, DOHA with a copy of any adverse clearance decisions and evidence that a reconsideration is warranted, by showing that the circumstances that lead to the denial of clearance have been resolved or mitigated. Military Personnel Q: Who adjudicates my security clearance application? A: If you already have a security clearance from the Department of Defense (DOD), the Executive Order 12968 requires background investigations and eligibility determinations to be mutually and reciprocally accepted by all agencies. Therefore, unless the USDA has reason to believe that an applicant does not meet the eligibility standards, they must accept and clearance from the DOD, and you will not need to be reinvestigated. However, if the USDA has reason to believe and determines you will not meet the eligibility requirements, or if the prior investigation is older than 7 years for Top Secret or 10 years for Secret clearance, the USDA has the right to reinvestigate and adjudicate. If you do not already have a clearance issued by the DOD and are applying directly to the USDA, the procedures would be those set forth above for employees of the USDA. Q: What happens if the USDA does not accept the DOD’s clearance? A: If you are reinvestigated and denied a clearance, you have the same procedures available set forth above that are available for USDA employees. | |