Clearance Tips Before the Defense Office of Hearings and Appeals

By John V. Berry, Esq., www.berrylegal.com

A topic that often comes up in our law firm’s security clearance practice involves the issue of how to best prepare for an upcoming administrative hearing before an administrative judge with the Defense Office of Hearings and Appeals (DOHA).  While this topic could cover several chapters, I have assembled a few basic tips in the process from our practice in this area of law.  DOHA administrative judges make final decisions of security clearances for government contractors and recommended clearance decisions for federal employees.

Keep in mind that it is important to obtain an experienced lawyer familiar with security clearance practice to best assist individuals approaching a DOHA hearing.  Counsel can best advise an individual in how to prepare and present their cases in order to give the best possible opportunity for a successful outcome. A successful outcome often means putting in significant preparation ahead of time. This article discusses some basic tips.

DOHA Administrative Hearing Process

For government contractors and federal employees, an individual with security clearance concerns not resolved by the Department of Defense Consolidated Adjudications Facility (DODCAF) will most usually lead to a hearing before an Administrative Judge of DOHA. When you receive a notice that your security clearance matter has been scheduled for an administrative hearing before a DOHA Administrative Judge, there are a number of immediate issues that must be addressed in order to prepare for this very important presentation.   It is crucial to realize that the Administrative Judge will have access to the entire case file of documents and information that was reviewed and/or considered by the DODCAF in making their earlier adverse determinations with regards to an individual’s security clearance.

Therefore, the key in preparing for one’s administrative hearing is for the individual presenting their matter before the DOHA Administrative Judge to not just repeat earlier arguments (or provide the same documents) submitted to DODCAF, but to do their best to exhaustively present any and all other materials and/or witnesses that have not yet been reviewed in order to give one the best chance of obtaining a positive result depending on the security clearance concern at issue.

Defense Office of Hearings and Appeals Basics

As an individual prepares for their Administrative Hearing, it is important to understand some of the dynamics behind the process. First and foremost among these is to note that the process is very similar to being in a courtroom in a civil issue. Just as an individual would not likely represent themselves in a clearance hearing, it is critical that they have counsel represent them during the DOHA hearing process. Here are some basic tips about the process:

1. Hire an attorney experienced in security clearance cases to represent you in your case (do not try to represent yourself);
2. Hire counsel early because the earlier retained the lawyer is the better the legal strategy and presentation of the clearance defense will be, often leading to better results;
3. The DOHA hearing may take place with or without Department attorneys present; these days there usually is a Department counsel present in nearly all cases who will cross-examine individuals. These attorneys, in my experience, are very professional, but are concerned that any individual’s security concerns by fully examined. They will conduct a thorough review and questioning of the clearance holder during the hearing.
4. The DOHA administrative hearing proceedings are transcribed by a court reporter and a copy of these proceedings will be provided to a clearance holder.
5. The DOHA hearing will begin usually with opening statements by both parties and then the admission of exhibits, followed by the questioning of witnesses brought in support of the individual seeking the security clearance;
6. The key witness in almost all cases is almost always the person seeking the clearance at DOHA (which is why I highly recommend utilizing counsel in these types of cases because it is hard to present one’s own testimony);
7. Following the initial testimony of a witness, either the DOHA Administrative Judge or the Department counsel may question the witnesses and an applicant’s attorney can also follow up with additional questions;
8. The individual seeking the clearance (usually their attorney) may offer a closing argument in support of their clearance. The Department counsel will do the same on behalf of the government. They may argue against the clearance, argue that the Administrative Judge decide the matter, or conclude that the person should have a clearance.
9. If needed, individuals may be permitted to supplement the hearing record with other documents is not available on the day of the hearing before the record closes; and
10. The Administrative Judge, following the closing of the record, will issue a recommended decision (for federal employees) or a final decision (for government contractors) regarding the granting or denial of a security clearance.

Outline of Hearing Tips at DOHA for Clearance Holders.

Here are some of the practices that we follow in our security clearance cases before DOHA:

1.         Preparation: Preparation is key to succession DOHA hearings.  One of the key aspects of the administrative hearing is to thoroughly prepare for hearing testimony, exhibits and additional witnesses.  A DOHA hearing must be well planned out in advance.  If the preparations for the hearing are not thought out and well executed, the Administrative Judge could become frustrated with the presentation which is not something that is helpful in obtaining a positive ruling. Preparation is needed because questions will be asked of the applicant by the judge and Department counsel about the issues in the Statement of Reasons.  An applicant for a security clearance should be prepared for that thoroughly and be prepared to humbly respond to the issues in the case.

2.         Exhibits: Exhibits to support a clearance holder or applicant’s case at a DOHA administrative hearing are highly recommended (often critical) and can make all the difference between success and being denied. Without documentation, I find that the odds of success at a DOHA hearing decrease significantly. It is very important to gather as much evidence and/or documents in support of your security clearance matter (and mitigation) as possible.  If a written statement is to be submitted on behalf of an individual at a DOHA proceeding, it should be notarized where possible (or possibly in the form of a declaration) as these will be given more credence than those that are not sworn. Even if not sworn, letters of support and other evidence can be very helpful. The more of these letters that are provided, the better the potential result in many cases.

3.         Witnesses:   Make sure that all witnesses for the DOHA hearing appearance timely arrive (30 minutes at least in advance of the hearing) and are ready and prepared to testify before the Administrative Judge. It is a good idea to prepare them for their testimony and the background of the individual’s underlying security concerns ahead of time. Witnesses can include co-workers, supervisors, doctors, specialists, and others whose testimony may go to the issue of granting an individual’s security clearance. In our experience, it is helpful to have between 3 and 6 witnesses at the hearing depending on the nature of the underlying issues.

4.        Professionalism: DOHA is a unique forum.  An attorney should strive to put an individual’s case forward with conviction, but not engage in needless legalistic procedures. Professionalism is important. The administrative judges expect that the attorneys for both sides will behave cordially in an effort to determine the factual background to the issues below. Individuals that hire attorneys with a professional demeanor tend to do better overall.

Conclusion

In sum, DOHA administrative hearings are perhaps the most important part of the security clearance review process for those employed or sponsored by DOD contractors and should be treated as such. Do not take them lightly.  Despite any thoughts that the process can be undertaken by individuals without counsel, I have found that to be an extremely unwise course of action which can have devastating circumstances.  For anyone facing a DOHA personal appearance / administrative hearing they should make the most of the opportunity to present a strong case in favor of the granting of a security clearance.  We can practice security clearance law nationwide and abroad for U.S. clearance holders and can be contacted at (703) 668-0070, at www.berrylegal.com. Please like our Facebook and Twitter pages.