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10 questions on security-clearance issues as a growing practice area

Thomas Coale, attorney with Goodell, Devries, Leech & Dann

Thomas Coale, an associate at Goodell, DeVries, Leech & Dann LLP, recently started a new practice at the Baltimore litigation firm handling security clearance issues for government contractors’ employees. It’s an area Coale, 29, expects to expand, given the number of contractors arriving in Maryland because of the Base Realignment and Closure program, or BRAC. Thousands of people could begin the sometimes-tricky process of applying for security clearance with the federal government, and when they get tripped-up, Coale hopes to use his experience as a Department of Defense attorney to help them fight back.

While there is no shortage of lawyers who focus on security-clearance denials across the Potomac, Coale is one of a handful of such lawyers in Maryland and one of few to have worked on these cases for the Department of Defense.

Q. What happens when a person has been denied clearance?

A. They will get a statement of reasons, which are the pleadings. It will say you’ve been denied a security clearance, under a particular guideline… It’s very intimidating for most anybody. These are not people that are experienced in the legal field, they for the most part have been working in engineering jobs, sometimes in the science field and they will contact the attorney in the Department of Defense, and that used to be me. …

One thing we were always told is that this is a legal proceeding; you can have an attorney represent you at the hearing, but you do not have to, and most applicants do not have counsel. I was uncomfortable with that a good amount of the time, because when they walk into that hearing room, there’s a judge, there’s a barred attorney on the other side representing the government, and there’s them. … This is someone’s job, this is their clearance, this is up to $30,000 of the individual’s income, and sometimes all of their income, because either they have a clearance or they don’t have a job. And that’s not something you want to risk on a chance of not needing an attorney to represent you in the hearings.

Q. At what point can a lawyer help the most? Where should you step in?

A. Where I feel that I can be the most effective is at the earliest stage when they are applying for clearance. …

Where I feel I am most necessary, if not critical, is when a statement of reasons is issued. As you will see in the directive, the deadlines are very tight. …

You get [30] days in most of these. In that time we need to conduct an evaluation of whether or not these allegations are true, what proof we’d be able to offer in response, whether or not we need to request a delay in response, so the statement of reasons is critical.

There is an entire process that is allowed for individuals who don’t want to have a hearing. The only issue is when you go that route, your chances of having a successful outcome diminish significantly. It was almost a tragedy to see how many of these people, because they were either intimidated by the process, or just didn’t want to deal with it, or just thought it was a big misunderstanding that they could solve via letter, would go the route of the FORM — File of Relevant Materials — where they would have a 10 to 20 percent chance of a positive outcome.

That’s because for most of these judges, for them to really be able to evaluate the applicant, they need to be able to see their face, they need to be able to hear them talk and they need to be able to hear their story for what the accusations are. You can write about that all day long and even if you’re the most artful writer, you’re not going to be able to communicate that.

Q. If most people don’t have an attorney represent them, how do you expect your practice to grow and how big do you expect it to get?

A. That’s a very good question. From my own experience, down in Virginia, this is a huge industry for lawyers. If you search security clearance law, there are law firms where this is all they do. … I’m one of the few, if not only, attorneys who practiced on the government side. Most of them in Virginia, where government contractors are the economy, they’re running off the government.

That’s going to happen more and more in Maryland, especially with BRAC, where we’ve got thousands upon thousands of government jobs and then the government contractor jobs; I mean, Maryland already has a fairly large government contracting industry, but that’s going to get larger.

What I’m depending on is being able to network, being able to get the word out because as I said at the beginning, the unfortunate aspect about security clearance law is by the time someone realizes it’s a big deal, they’ve already lost their clearance.

Once you’ve lost your clearance, you’re automatically in a one-year holding period where you cannot reapply, and then at the end of that one-year process, you not only need to go through the process of the regular applicant, but you also need to prove that whatever the concerns were that had been successfully proven by the government attorney in your first hearing, that those concerns have been resolved.

Q. If someone was looking for a job, could they apply for security clearance on their own?

A. In the United States, with our contracting system, everybody needs to be sponsored for a clearance by their employer.

Q. In your work do you try to advertise yourself more than other attorneys might?

A. This is a group that does not advertise itself. …What I’ve been doing, especially with BRAC and U.S. Cyber Command [is] meeting with those that are already entrenched in the field, because with many of these companies, they build up a company, they sell it for millions of dollars, and then build up another company and sell it for millions of dollars.

They know the field, they know the people that do this work and I’ve been meeting with them and letting them know this is something we’re doing and there’s been a very positive response. One of the people I met with said this is going to be the only thing you’re going to be doing in a couple of years.

Q. Do you think that other firms who do work with contractors will try to expand into this?

A. I think it’s a very hard area to move into blind. It’s also something that’s so specialized that I would almost wonder, for other law firms, whether it would be something that they would even be interested in investing the time and effort to get up to speed for this. I’m fortunate that I’ve had two years of doing it every day, you know, four or five times a day and I know the directive backward and forward. You pretty much have to have this memorized to be able to do these cases the way they’re meant to be done — and if you’re caught flat-footed it can end up blowing up in your face.

Q. As an attorney, would you recommend that your client not admit all of the allegations [in the statement of reasons]?

A. It depends. It depends on what allegations are being made. … I would say for most applicants, without being able to get into the individual circumstances, you want to decide how you’re going to approach your response after looking at the directive. Because, as you’ll see here, there are a number of mitigating factors that become very important.

So, if you have a mother in India and you call your mother once a day in India and that’s a security concern, there’s no reason for you to deny it. But, when you go to your clearance hearing and you’re before a judge, you explain that your mother lives in a very remote part of India, she’s never held a government job, she’s not involved in the military in any way, she doesn’t have any friends in the military and when you call to talk to her, you’re telling her about her grandchildren, well, then you’ve mitigated the concern. Whereas if you’d denied that and showed up at the hearing and said, ‘yes, I denied it, but I do talk to her,’ well, now you’re in trouble, because the judge is going to have issues.

Q. Can you give an example of a particularly difficult case you tried?

A. There was one instance where an individual was in the military and he had traveled all over the United States in the military and at various outposts that he had been at, there were various accusations of child abuse, child molestation. But, because of the way criminal records are kept, as he would move to a different area … one more thing would come up, he would try to get transferred because the community would know about it and he would be targeted as a sex offender, despite never being found guilty.

After he left the military, he applied to be a government contractor. In creating this case we had to re-establish all of these witnesses and find all of this evidence from these cases and get it in front of the judge for this individual applicant, and his application ended up being denied.

Q. How about a case where someone messed up on their application and got put through the wringer?

A. There’s a case since leaving the Department of Defense that I’ve been following because it involved a contractor where their company was on the line. [This person made the mistake of] being overly truthful. … There was a rodent that was in the person’s backyard and he shot it with a firearm — unlawful discharge of a firearm — and said that to the investigator, among any number of small incidental offenses that any one of us may commit and not think twice about.

Under the guidelines, there’s guideline E, which is “Personal Conduct,” which is the catchall. What sometimes the government may do under personal conduct is just group a whole bunch of small offenses. For instance, let’s say you get a traffic ticket every single year or two, or three times a year for five years. Your clearance is in jeopardy, because they will put it under Personal Conduct as not respecting the law, having lack of personal responsibility.

So, for this particular individual all of these small offenses were piled up under personal conduct. I don’t want to go into what the outcome was, but they had a very difficult time obtaining a clearance.

Q. Do you expect growth in this area to be temporary while all of the BRAC people come in, or do you expect continued growth?

A. I expect it to continue to grow and one of the reasons for that is as we’ve seen with the Maryland economy recently is a continuing and increasing reliance on government dollars — more and more our economy is relying on the government and government jobs. Wherever there’s government, there are contractors. They surround them, they help them get the job done, they are as important an aspect of our federal government as the workers themselves.

I see it to grow exponentially, especially as people are learning that they don’t have to accept whatever the government tells them. This is due process. This is a process that is meant to allow them to represent their side. This is a process where, if your clearance is denied and you get a statement of reasons, that’s not the end.

A lot of people, and for good reason, they’re taught that when the government tells you something that’s it. With this, as with criminal law, as with anything else, this is representing the individual in the face of the government. I think that once people realize that this is a process that allows for representation, they’ll be more likely to seek that out.