Working through a SOR...can I sue the government?

SECURITY CLEARANCE Q&A
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I believe that I received a SOR because of erroneous information that was provided/processed during my background investigation process. Grossly erroneous. During my own investigation, to precisely respond to the SOR, I’ve found several items denoting negligence and mismanagement. Can I sue? I had to hire an attorney to help me fight the false SOR allegations. Would a letter to my Congressman help? When I raised the issues through my agency’s IG “hotline” and leadership, my concerns were noted, but am not fully supported. I would like accountability in the background investigation process. Is this possible?

The specific issues in the SOR are little complicated, but for those interested, please feel to read on. If this helps some understand the inherent gaps and seams in this process, then it is worth my time to write…

Basically, I believe I’m caught between some significant misunderstandings either caused by major mismanagement of my organization’s security, lack of attention to detail by the background investigator interviewer and/or adjudicator, and/or all of the above. It’s crazy that my entire career (28 years federal service) is in jeopardy, and nobody is on my side except for an attorney that I have to fund. I’m fighting to prove my innocence to government employees that are not motivated to seek the truth.

BACKGROUND: I committed two infractions within the past year, and two violations over 12 years ago. Which apparently was enough to generate the SOR. My attorney tells me it must be the last two infractions because the 12 yr old violations were mitigated/adjudicated during my previous background investigation that closed 7 years ago. It probably wasn’t even the infractions because they were minor; e.g. bringing a cell phone into classified area and failing to spin a cipher lock when closing the office for the day. What I can assume from the very “topical” information provided in the SOR is that there is a perception that I tried to hide/deceive those incidents during my interview. Specifically, that I didn’t report the incidents both at the time they occurred and during my background interview, and that I failed to acknowledge remedial training and counseling requirements as stipulated in the incident reports.

Here’s where it gets frustrating…

I never saw the security incident reports until two weeks ago. Good news is that they state that I self-reported the infractions, and I have reason to believe that the adjudicator was in possession of those incident reports, the bad news is that they also state retraining/counseling requirements which I never performed. The SOR insinuates DoD/CAF knowledge of that retraining/counseling requirements and states that I didn’t acknowledge those requirements during my interview.

During my interview process, the interviewer had very specific question for me about retraining/counseling, etc because of the infractions. I thought it was odd for such specific questions. I answered either that I didn’t perform any retraining and wasn’t counseled, or wasn’t aware of any requirement to do so. When I saw the year-old incident report a few weeks ago for the first time, I was surprised when I saw the language about remedial training/counseling. When I confronted my security office they stated it wasn’t in our agency policy to show the incident report to the employee. Needless to say, I was flabbergasted that a manager of my agency would state such a thing, but also take no ownership of the failure. He knows that I’m in the process of responding to the SOR, and I’ve informed him that this is a critical piece of information that is likely one of the reasons for my clearance revocation.

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You may not like my response. I don’t understand how you feel you are being mistreated. You had incident reports that required follow up that you never completed, this raises a flag. Whether or not your company was clear about the follow on retraining/counseling is on the company itself. You should take that up with your company for not being clear.
Having two security infractions/incidents in the past year is a red flag. Having not followed up with suggested retraining/counseling is another red flag. Thus, why you got an SOR. I don’t see any unfair treatment here.

By the way, I received an SOR also and successfully defended. Come up with a clear and concise answer describing why you didn’t follow up with the training (because you were unaware). That’s about as much as you can do. You asked if you can sue the Government? Go ahead if you want to waste time and money.

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Clarification: I was never informed that I was required to perform follow-up actions. How can I be held accountable for failing to perform follow up actions if I was unware? Infractions aren’t necessarily a red flag. For example, you’re escorted into a conference room with your cell phone in your pocket that you didn’t know or was informed was a classified space.

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I get what you are saying but… you still have to explain yourself because it came up. There were things in my investigation that came up that I was honestly unaware of, and I had to explain myself and mitigate the security concern. You said infractions aren’t a red flag if you walked into a cleared space and unintentionally had your phone in your pocket? An infraction is an infraction, it doesn’t matter your intentions. When I say “red flag” I mean it is derogatory information that will need to be explained and security concerns mitigated. It doesn’t matter if you have bad intentions or good intentions, during this process you will still have to explain yourself. An SOR is a chance to explain yourself before being denied.

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You’re not going to like my answer either but talk of suing anyone is pre-mature. Your first goal should be retaining your clearance and I don’t think that your lawyer should have any problem defending you in front of a judge.

Your complain doesn’t seem to be with the government but with your company. You think that they failed to inform you that remedial action was required. They may have but you may have missed it as well. I don’t think that you will get anywhere going to court with them even if you lose your clearance.

I would recommend that you compete the required training NOW. When you respond to the SOR, you can note this and it, at least, shows that you are not trying to avoid retraining or deny the problem.

One of the surest ways to lose at the hearing is to go in blaming your problems on others without iron clad proof.

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If you signed and acknowledged the infractions…I can see you being held accountable. You said you were never served the infraction paperwork and your company security officer said it was policy to not show them to the employee. Here is where it gets sticky. I am quite sure this isn’t policy, and the security person will never admit telling you it is policy. But if there is a date on the letter and you were present that day…it can be an issue. Sometimes they include boiler plate information on these notices. If it is policy to not share them with the employee…the employee does not know there was a training requirement. Catch 22. You cannot complete what you were never told existed and was required. Though I believe the onus is on the company to prove you were notified of the training requirement…this may not play out in your favor. I had one employee angrily deny having any security infraction. Demanded to see her file in HR. Insisted it was put in there without her being notified. And then we showed her she signed and acknowledged it. Then the story changed to “Well, I didn’t read it at the time.” She still cleared. This may very well be a case of using these infractions to end your employment for other reasons. That happens. They needed something to hang their hat on. It would be unfortunate to have two documented security violations in the file, while undergoing a BI. Infractions, different from violations, are usually verbally counseled and not entered into the government systems. Self reporting infractions should never result in loss of clearance. Otherwise, nobody self reports. The intent is to create a culture of self reporting. Chopping heads off those self reporting will give the opposite effect. It could be your FSO is new and heavy handed. I too was heavy handed, and believed many infractions were outright violations. I learned along the way if it is unintentional…and quickly addressed with remorse and reported…it is an infraction…and should be treated as such.

I think a clearance lawyer can get this overturned if you were never shown the write-up and informed of the training requirement.

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Excellent feedback. Thank you.

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amberbunny, what’s your definition/difference between a security infraction and a violation?

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Thank you very much for your thoughtful reply.

My security office is 50 miles away from my work center. When I say I never saw the paperwork, I never saw the paperwork, and security acknowledged that fact.

My office had a string of minor infractions a few months ago so I arranged for two security reps from our front office to come to our location to provide the entire team refresher training. Security has acknowledged that this met all retraining requirements for my infractions from the previous year. Which should bode well for my SOR rebuttal in terms of demonstrating that I mitigated the issue (even before the SOR was generated).

Lastly, I wasn’t clear in my original post, but I work for the federal government.

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If you retain a clearance attorney, you should be able to successfully win your case. As for suing the Government, well… it depends. I agree with Ed that it’s premature at this point. Anyway, in order to sue the government, you need to show harm. It appears that you are still employed. Losing your clearance eligibility is not a harm. Federal courts generally stay the hell out of adjudication process as they consider it as administrative not legal matter, but that doesn’t mean you can’t sue. If you do, I hope you have a deep pocket for that.

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Thank you for your reply.

I’ve received excellent feedback with this post/thread; thanks to everyone.

It has helped me put things into perspective.

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Sorry just saw this now. In most cases, if a person self reports…say…accidental bringing a cell phone into a vault. That is mitigated, they are retrained and warned. Infraction. But if you knowingly bring a cellphone into a vault…that is a violation. At my work site it can be subjective, but intent and humility come into play. If you clearly made a mistake, it was an accident, they should not cut your head off or they push all infractions under the radar. Nobody reports anything now. So there must be a means for reporting and getting the counseling…without killing the person. But if a company needs an excuse to fire someone an infraction can be what they use to justify it.

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So much power adjudicators have. So unconstitutional,

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Unconstitutional?

Would you elaborate on that, you have my interest.

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I am also interested how a clearance, which the courts have determined to not be a right, and adjudication, which prompts an automatic higher adjudication review when initially denied, and has clearly limited powers, can be considered unconstitutional. I missed that amendment.

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Oh, look, a troll.

Shouting “unconstitutional!” is the tactic of the misinformed.

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I don’t think they are a troll as much as someone frustrated that they didn’t “win” their clearance hearing. The adjudicators don’t set out to “get” anyone and there are no points/bonus for keeping a Subject from a clearance.