In chronological order below, we have included a sample of our legal writings.
Legal Writings
Responding to Debt Cases
Knowing the Territory: Debt Cases
In our security clearance practice there’s almost a flavor of the season to the kinds of cases that come to us. Recently the flavor has been debt cases. These are cases where the subject has some past-due and unpaid debt or set of debts they may or may not have known about or has failed to file tax returns in a timely manner. There are decisions at DOHA saying the government is not in the debt collection business, but that’s an opinion of a few adjudicators in a few cases and not the practice.
After handling a good number of these, some pretty straightforward practical rules -for what wins and what doesn’t- leap out. The details will always be complicated and unique to each case, but we’ve identified two rules of thumb that are helpful in judging how the scale will balance.
We’ll look first at the governing guideline, Guideline F, because the practical rules begin with “The Rule” set out there. The concern in guideline F arises when there’s indication that a subject has failed “to live within one’s means, satisfy debts, and meet financial obligations… .” Nine different facts or fact patterns that may raise this concern (“bad facts”) are then listed, ranging from inability to satisfy debts to failure to file tax returns or to pay taxes. The Guideline explains, by the introductory narrative and by some of the bad fact descriptions, that the debt may indicate another kind of failure, like a gambling or drug addiction.
Whatever the underlying reasons for someone failing to ‘live within means, satisfy debt, or meet financial obligations,’ the first practice rule is to test whether the expressed Guideline F concern really arises. For example, while a debt one didn’t know about and is able to pay-off in a heartbeat from available funds may indeed be a “bad fact” if only because it allows one of the 9 bad fact boxes to be checked, it proves nothing about whether one is living within means. If the subject, upon learning of the debt, pays it off, that would be evidence that the subject is living within means. The rule of thumb that follows is if you pay off all legitimate debts prior to hearing, you may (or may not, depending) still have some explaining to do (about how the debt came to be, how it came to be past due, etc.) but there are a variety of acceptable explanations that may match your facts and should conclude the matter favorably. (As to debts that are not proven or provable -due to mistaken identity or messed up records or something else- one must document that these other debts are in a dispute process or have been struck from one’s credit record.)
Sometimes debts are too large to pay off and/or there is ongoing financial strain evidenced by high debt balances, bad debt vehicles such as credit cards, and insufficient resources to pay these debts off. The practice rule in these cases is to reorganize resources well in advance of the hearing date so that what can be paid is paid and regular payments have been made under plans in place to pay off the rest of the legitimate debts, including credit card balances. This may call for the assistance of a professional debt consolidator or negotiator or accountant or CPA or the like, and we’ve found the good ones to be extremely helpful in ordering our client’s finances.
This leads to the second rule of thumb for the winning case: a rule worth following even if everything is paid off in full. The key question in Guideline F cases is the subject’s financial situation. Thus anyone facing a Guideline F case should provide hard evidence of what their financial situation is. A subject should prove, by statements received, what assets exist and should show, by a supported detailed financial statement, where the money comes from and where it’s going every month. If the adjudicator isn’t confident that a subject has found a path to solvency and is set on that path, it would be easy to conclude that the same case will arise again next year and even easier to conclude in the case at hand that clearance should not be granted.
There are millions of clearance holders and undoubtedly thousands of distinct fact patterns concerning debt and details do matter. But the broad strokes outlined above are very helpful in identifying winning cases, in mitigating hard cases, and in identifying cases not worth pursuing.
Security Clearance Guidelines
Here is a link to the currently effective clearance guidelines applicable to virtually all clearance evaluations.
Responding to the Statement of Reasons
OK, you’ve received a Statement of Reasons, looking something like the image to the right, perhaps going on for a few pages, and you are asking yourself “How do I respond to this?”
Security clearance appeals are very fact driven. Even very good facts must be organized and presented clearly and persuasively to answer the concerns raised.
Security Clearance Appeals Process
Security clearance appeals proceedings are different from proceedings in a court, though some portions may resemble court proceedings in some ways. They are also different from each other, depending on who the Applicant works for and which agency “holds” the clearance. Although all agencies must apply the same substantive guidelines, the procedures used by the Department of Defense, the Central Intelligence Agency, the National Security Agency; the Defense Intelligence Agency, the FBI, the Department of Justice, the State Department, the Energy Department, Homeland Security, and the National Reconnaissance Office vary widely. We know this viscerally because we’ve worked with clients affected by the actions of each of these agencies.
Pre-Clearance Counseling
You may have looked at a form that you need to complete in the application process, or read something in a newspaper or an online posting, or heard something, that causes you to be concerned about some aspect of your past. We can discuss your profile with you, assess concerns you may have, and offer you insight into what you might do to improve your prospects and the processing of your application.
Planning the Business Relationship: Disagreements
Planning for the best outcome and also for unhappy outcomes in a business relationship is vital. While we focus here on relations between individuals jointly owning a business, many of the points made can apply to relationships between businesses.
Security Clearance Appeals
If you are reading this article, you’ve probably received some form of notice to the effect that your security clearance application or clearance status is in trouble. Here is some useful information about the security clearance appeals process.
Completing the EQip or SF86
Once you have been sponsored for a clearance, your critical first step is to complete the SF86 form (“EQip” when online) fully and accurately. Most folks who go through this process find themselves facing one of more of three problems.
Non-Compete Agreements
Generally speaking there are two kinds of non-compete agreements; those between companies and those between an employer and employee. Agreements between companies (including contractor-subcontractor con-competes) are subject to heightened scrutiny under the antitrust laws and the complexities of those laws make any simple generalized explanation dangerous to rely upon. In this note we will focus on non-compete agreements between an employer and an employee.
Sexual Harassment
The purpose of this note is to offer a broad outline of the law of sexual harassment. Individuals and companies facing potential sexual harassment situations are encouraged to consult with counsel at the earliest opportunity.
Trade Secrets
Eisen & Shapiro’s business lawyers counsel employers and employees on a broad range of trade secrets matters and competition matters. We have undertaken integrity audits, investigated potential breaches or infringements, prepared and reviewed employment and venture-related contracts involving trade secrets and/or non-competition agreements, negotiated agreement language, and prosecuted and defended lawsuits. As required we use experienced business investigative services in these matters.
Structuring a Business
There is no one choice suitable for all businesses. Over the life of an enterprise every business form has tax, managerial, liability and reporting consequences. Changing a business’s structure, either because the wrong form was initially selected or because developments in the business recommend that it take a different form, can be costly.
On Whistleblowing
Most states’ courts explicitly recognize the “right to work” principle in employment law. Generally speaking, that principle is shorthand that guides courts’ decisions in a variety of employment disputes. The disputes may range from the right of a former employee to compete against a former employer to the right of an employer to terminate an employee for any reason or for no reason at all.
On Government Contracts
Government contracts are a primary focus of many businesses in the Washington D.C. metropolitan area. Contracting with local, state and federal governments is typically accomplished through a bidding process intended to secure for the contracting government entity the best possible terms and prices.