Some expert tips for getting through your security clearance

It’s time consuming and complicated. But if you need security clearance to do your job for the government or for a government contractors, you’ve got no choice but to go through what it takes to get cleared. One question that comes up a lot: Should I go to my clearance hearing? Joining the Federal Drive with Tom Temin with some advice, attorney Ryan Nerney of Tully Rinckey.

Interview transcript: 

Tom Temin Mr. Nerney, good to have you with us.

Ryan Nerney Thanks for having me, Tom.

Tom Temin I guess the question, should you attend your hearing? Isn’t it mandatory that you have to tell us more about the process maybe and where the hearing fits into security clearance?

Ryan Nerney Sure. I mean, it depends on the agency that you’re trying to get a clearance with. But no, it’s not mandatory at all. I guess the only way it could potentially be mandatory is, let’s say if you’re a DOD contractor and there’s an attorney on the other side, you request that you want to have a decision on the written record, but the government counsel decides, no, he wants to have a hearing. And at that point he can put in a request to the judge. And at that point it would be mandatory for you to attend. If you don’t attend, then, you know, at that point your clearance would be in severe jeopardy.

Tom Temin Right. So you have to attend if there’s a chance that they could deny you or they need more questions. But otherwise, in routine cases, the hearing is just for them, not really for you.

Ryan Nerney Sounds like, I mean, no, I mean, it’s definitely for the individual trying to get the trying to get the clearance right. And in my practice, I see that the hearing is probably an individual’s best opportunity to try to mitigate whatever the concerns the government has. That’s a lot of times if you have like, let’s say, a guideline case which is personal conduct, a lot of times it’s good to appear in person so that the judges or the adjudicators can make that credibility determination about you.

Tom Temin Right. But they well, do they ever approve someone without a hearing, without having them do it?

Ryan Nerney Absolutely. I get cases all the time where we submit responses to statement of reasons on the written record to be favorably adjudicated. Absolutely.

Tom Temin All right. So you said in general, it’s to your benefit to go to a hearing. What can you expect at a hearing?

Ryan Nerney Sure. So it’s important to understand these hearings are administrative, right? So it’s not like what you see on, like, let’s say what, Law and Order or something like that, right? They’re administrative. A lot of times, you know, the judges don’t wear robes or anything like that. You know, it’s but it is there usually is a government counsel there. So there is going to be some cross examination. You do have the ability to have witnesses as well as testify on your behalf. But it’s important to understand the rules of evidence in these types of proceedings are relaxed. And essentially what that means is that anything that is really somewhat relevant will be admitted into evidence and be considered by the judge. Another kind of big, I guess, factor is is at least on the DOD side, when you have these hearings with the defense offers of hearings and appeals, you’re not sworn on oath. You’re admonished under Title 18, Section 1001 of the U.S. code, which is essentially the same thing as lying under oath. But, you know, you don’t have to raise your right hand to say swear to tell the truth, the whole truth, and nothing but the truth, so help me God. In Department of Energy, you do, though.

Tom Temin That’s just an energy policy of their own that they engineered.

Ryan Nerney Yeah. The Department of Energy, they beat to their own drum, so, you know. Yeah. I mean, they do things a little bit differently in the appeals process. The Department of Energy actually is one where you actually can submit a written response for a hearing. You actually don’t get the opportunity to both. I guess you could potentially, when you submit your request for hearing, you could provide a mini response, but it’s not going to be the same type of adjudication as it would be, you know, for like DOD or, you know, some of the other intelligence agencies.

Tom Temin And you mentioned that they might want to have you in because of something in I think it was personal behavior or something that came up in the course of their investigation. What’s a good example of the type of thing a person might have done that would cause them to have that question?

Ryan Nerney Yeah. I mean, the biggest thing is, is if you’re alleged to have lied, you know, or admitted some information or something like that, right? Because then the judge would have to make a credibility determination on, you know, whatever that explanation is, you know, why did you do it? You know, and if you kind of had to have a history or a track record of that. A lot of times it’s good to actually appear in front of a judge as opposed to, you know, like a written response where the judge can’t make that credibility determination to appear in front of the judge. And the judge is able to kind of say, hey, you know, this guy either made a mistake or he’s a chronic liar.

Tom Temin Which means that they are actually looking at the information and checking it out that you filled out on that SF-186 form, I forget.

Ryan Nerney Yeah. The SF-86.

Tom Temin 86, right?

Ryan Nerney Yeah, absolutely. Yeah. I mean there’s, you know, the whole process has been a little bit more streamlined now because as with the SEC, Defense Counterintelligence and Security Agency and you know, they change your acronym almost on a monthly basis now. But but they but yeah, I mean, it starts with that. And then you have the investigation where they go through the entire SF-86. And once it gets to an actual adjudicator with the CSA, then at that point they take a look at it, decide if you’re going to be issued a statement of reasons or not. And then, you know, it’s all based upon the information that you provide from that form that you just mentioned.

Tom Temin We’re speaking with Ryan Nerney. He’s a lawyer with the law firm Tully Rinckey. And just backing up a bit, these hearings take place in what, physical locations? I mean, do you have to necessarily go far to be able to attend your own hearing?

Ryan Nerney Back in the day, you used to, I used to have to travel all over the country doing these types of hearings. Now, with, you know, after the pandemic and things like that, everybody has kind of transitioned to more virtual. The Department of Energy has usually been virtual because the judges don’t travel. They’re always in D.C., but for like the DOD, I mean, they used to have to travel all over the place. Now they use, you know, a government version of Microsoft Teams where I would say I would say the majority of these these cases are probably virtual. Now, unless you’re on one of the coasts, if you’re on like, let’s say, the East Coast in D.C., you can go to D.C. or Virginia or Arlington, where the DOHA headquarters is. Or DOHA also has a satellite office in Woodland Hills, California, just in Los Angeles County, that you can also go in-person. And then sometimes there’s judges trickled around the country where, you know, you can get, you know, like a federal courthouse and go there. But for the most part, I would say the majority of the hearings now are probably virtual.

Tom Temin And of course, if they’re trying to evaluate you and get a sense of whether you’re telling the truth, that’s a little harder in a virtual setting. They can’t see, for example, if you pull out your steel spheres and start playing with them like Captain Quigg, it’s really hard to tell.

Ryan Nerney Yeah, I mean, yes and no. I mean, you’re obviously on camera, right? You know, but I mean, it’s it’s from basically the top up. So yeah, you can’t really see what they’re doing, you know, per se. But, you know, the judges been doing this for a while. They’re pretty savvy, you know, as far as, you know, understanding and kind of reading people. I mean, I’m old school. I prefer in-person. But, you know, unfortunately, this is the way that the world is going and this is the transition that they made. So we kind of have to make do. But as long as a judge can actually see an individual and see, you know, their face and kind of, you know, their expressions and kind of how they handle certain clashes or things like that, judges can make a pretty good credibility determination about those individuals.

Tom Temin And since they have initiated, at least for some of the people that are applying, the people that have clearance, this idea of continuous monitoring, using data sources and so on, what’s your sense of the process now as it stands? Is it is it actually faster and more efficient than it was? Or all of this effort and changing of agencies that has been going on over the last few years, has it had any effect from the standpoint of someone who represents people trying to get clearance?

Ryan Nerney Yeah. Yeah. You’re talking about the continuous vetting action. Yeah. So I mean, back in I keep saying back in the day, but they previously used to have, you know, for a top so you could every five years you know you did a re up and then every ten years for a secret you re-up. They kind of still follow that a little bit. But they realistically the continuous vetting action and program they I mean they can pull your clearance at any time. So I would say that it has been streamlined more. I think they’re a little bit more efficient, at least as efficient as the government can be. And but it adds more work because it’s continued. It’s continuous, so they don’t have to wait every 5 or 10 years they can pull you at any time. I’ve had situations where clients have submitted an SF-86 and then they’re required to submit another one a year later, you know, because of the continuous vetting action. So, I mean, it adds more work, but I have seen it speed up a little bit over the past, I would say, few years.

Tom Temin Okay. So if you fill out the SF-86, send it in. How long is that taking right now?

Ryan Nerney Again, it depends on the agency. You know, if you go to one of the intelligence agencies, it’s going to take significantly longer than like the old, you know, the one that’s kind of been more streamlined is the DOD, Department of Energy. With all their quirks, they’re probably the quickest, you know, just because they’re just more efficient, I guess. But I would say on average, once you submit an SF-86 up and tell you if there’s if you don’t get a statement of reasons or anything like that, I would say be anywhere from two to four months. If you do get a statement of reasons, then that process kind of has its own legs because if you respond to it in writing, but you’re able to mitigate the allegations in on the written response, you don’t have to go to a hearing that shortens it significantly. If you have to go to a hearing, then obviously that prolongs it. So I mean, to give you a general time frame, if there’s no issues, probably two to four months. If there are issues, it could be upwards of a year.

Tom Temin Well, that’s not horribly long, I guess, considering what it was a number of years back where it took, I think several years. Right?

Ryan Nerney Yeah. I mean, you know, keep in mind, that’s obviously, you know, on average, I mean, I definitely have clients who have been waiting longer. And then I’ve had clients who have gotten clearances approved in two weeks. So, I mean, you know, it just varies, you know, I mean, the best thing to do, you know, is to just be fully honest and truthful on the forms, you know, because if you’re not and there’s more information that comes out later on throughout the investigation that’s going to prolong even further.

Tom Temin Attorney Ryan Nerney of the law firm Tully Rinckey, thanks so much for joining me.

Ryan Nerney Thanks, Tom. I appreciate the time.

Tom Temin And we’ll post this interview at federalnewsnetwork.com/federaldrive. Subscribe to the Federal Drive wherever you get your podcasts.

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