Security Clearances with the Department of Energy (DOE), Department of Homeland Security (DHS), NASA and the Nuclear Regulatory Commission (NRC)

Submitted by the Bond & Botes Law Offices - Thursday, August 1, 2024

By Ronald C. Sykstus

People most often think that security clearances are generally limited to the Department of Defense (DOD). While it is true that a large portion of our country’s security clearances, both for secret and top-secret access fall under the DOD, most of the other large agencies in our country also have security clearance requirements. These requirements generally follow along the same guidelines as DOD clearances and the issues and problems people experience are similar. From my perspective, however, in dealing with clearances with all of these agencies over the years, here is my brief assessment for each department.

Department of Defense (DOD) - as I mentioned, the bulk of security clearances fall under the DOD. Fortunately, the due process rights for government civilian employees, contractors and military service members are vast and far-reaching as far as someone trying to get or keep a security clearance under the DOD guidelines. Please see this DCSA security clearance information.

Department of Energy (DOE) - In my experience, the due process rights for security clearance applicants and holders are good but very detailed. For instance, if someone gets to an administrative hearing on their clearance, the DOE hearing process is very detailed and formal and the government will usually have witnesses and a lot of written evidence. In addition, there are several layers of review for these types of security clearances. Please see this DOE security clearance information.

Department of Homeland Security (DHS) – From my perspective, this is a very rigid and formal system. It also moves pretty fast as far as time if the agency perceives an issue or a problem with someone’s access to classified material. The appeal process is also rigid and formal. The due process rights for security clearance applicants and holders are generally good but also very detailed. If someone gets to an administrative hearing on their clearance, the DHS hearing process is very detailed and formal and the government will usually have witnesses and a lot of written evidence. In addition, there are several layers of review for these types of security clearances. Please see this DHS clearance information.

Nuclear Regulatory Commission (NRC) – This is probably one of the most rigid and formal agencies as far as security clearances go. That probably makes sense, given what this agency deals with. The appeal process here is rigid and formal. The due process rights for security clearance applicants and holders are generally good but also very detailed. There are several steps in this process just to get a clearance, and even more layers if there is a perceived problem or concern regarding an applicant’s access to classified material. Please see this NRC clearance information.

NASA - Generally, anyone who works at NASA has some level of clearance. Often, this can be a lower-level confidential clearance which requires the completion of a public trust application called the SF85P. In my experience, the due process rights for a clearance for someone who is applying for a job or works at NASA are, unfortunately, the most limited of any agency. For instance, anyone contesting a clearance denial or revocation, can generally only appeal to a hearing officer. The other agencies that I referenced all have administrative law processes and, someone with a clearance denial or revocation, can almost always get their case heard before an Administrative Law Judge. While the NASA procedure might seem like it is easier to go through, in my experience it is fairly unforgiving if there is a problem that is discovered with someone who is trying to get or keep a clearance to work at NASA or for a NASA contractor.

Additionally, every other government agency such as the Department of State, FBI, CIA, NSA, etc., have their own requirements for access to classified material, but everything generally falls along these same lines. As one can imagine, the rigidity and detail is even more stringent here to, in all likelihood, include a polygraph examination for most applicants.

The starting point for all these agency jobs will be to fill out a SF 86 or SF 85P through the E-Qip system. This is where things could go wrong so be very careful here.

This is how I always instruct applicants as far as the approach on completing their SF 86/e-Qip:

When you are confronted with having to fill out the SF 86, make sure you spend a good amount of time on this form and do not rush it. Obviously, you need to comply with the deadline to submit it but, again, make sure you are thoughtful and methodical when you answer all of the questions. Spend plenty of time analyzing the questions and determine exactly what you must answer YES to on the form and report. For especially concerning questions that may revolve around debts, drug usage, alcohol issues in the past or criminal matters, make sure you are very detailed and considered in your answers. In a nutshell, I tell security clearance applicants to control the narrative. None of this should come as a surprise to the government since they will have access to all of your records anyway so be sure to explain how and why these issues happened in your past and how they will never happen again. As a corollary to this, do not talk to anyone about your concerns to include coworkers, supervisors, or the facility security officer (FSO) since they may be required to report what you are telling them. Instead, seek out the assistance of a lawyer where you are protected by the attorney-client privilege and nothing you say goes beyond that lawyer so you can figure out your best approach to each particular and problematic question.

If you are early in the clearance process, and you are at the stage of having to complete an initial or renewal SF 86 form through e-Qip, and you have questions or concerns about how to disclose financial issues, delinquencies or concerns in your life, please reach out to me immediately BEFORE you answer those questions. A consultation with me is protected under the attorney-client privilege and only you and I will know what we discuss. To that end, I strongly recommend that you do not discuss any security concerns with your chain of command, civilian supervisors, or anyone else since, reporting any type of potential issue to anyone else, may require them to forward that information along to the facility security officer. Before you decide to do anything like that, and if you think you have an issue that needs to be disclosed either on the SF 86 form or by self-reporting, let’s discuss it first before you do anything. We can have a meeting (by phone or in person) protected by the attorney-client privilege so that we know exactly what all of the issues are and we can ensure that, together, we can control the narrative of exactly what you are reporting or answering. Please feel free to contact me by phone or text at 256-713-0221 or by email at rsykstus@bondnbotes.com if you would like to discuss any concerns that you have regarding your clearance. My goal is to put any security clearance issue and concern that you may have to rest at the earliest and lowest possible level.

If you are already past the point of completing your initial application under the SF 86 or 85P and a concern or a problem or question arises, please do not discuss it with anyone at work. Please reach out to me immediately so that we can adequately and confidentially address any concerns and try to get the situation resolved and/or put your application in the best possible light so that any government concerns are alleviated.

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