By John V. Berry, Esq., www.berrylegal.com
If you are a federal employee or government contractor whose security clearance is under review (commonly referred to as the Applicant or Clearance Holder) and you are in the process of having your case heard before the Defense Office of Hearings and Appeals (DOHA), there are a number of considerations to take into account as you move forward to the hearing.
Typically, before a case arrives at DOHA, the security concerns at issue for a federal employee or government contractor have been reviewed by the Department of Defense Consolidated Adjudications Facility (DoDCAF). Furthermore, there has most likely already been an initial response to a proposed clearance revocation or Statement of Reasons (SOR) response.
When a security clearance case moves to DOHA, the individual needs to be prepared. One of the biggest mistakes that we find is that the clearance holder or applicant is not prepared for the rigors of a full hearing and the questioning it entails. Typically, this type of preparation involves a fair amount of planning to obtain witnesses and documents for use as exhibits during the hearing. Eventually, the government’s attorney, referred to as the Department Counsel, will reach out to the clearance applicant or holder with a letter informing them of the pending hearing and the potential exhibits that they plan to use against them in the hearing. A hearing date is eventually set.
As the hearing date approaches, the applicant for a security clearance should be well prepared, in advance, to present their case at the hearing before the Administrative Judge. It is essentially like going to court and an individual needs to be ready to present their case. Having legal counsel represent you in at the DOHA hearing is highly advised. Below is a brief summary of the process that occurs during a DOHA hearing for federal employees and federal contractors before an Administrative Judge.
The process and procedures of a DOHA hearing, which can vary between cases and judges, usually proceeds in a similar manner. Some tips and the general process is outline below:
- Arrive Early on Hearing Day: Usually, the best advice is to attempt to arrive at least 30 minutes ahead of the scheduled start time for the hearing. There will be a need to get cleared into the building (and have witnesses cleared) and arrange for an escort. All parties should have acceptable government identification to gain entry.
- Exhibits: The clearance holder or applicant must make sure that they have submitted all of their exhibits to the Department Counsel, in advance, according to the rules. These rules can vary sometimes, depending on the Adminstrative judge. These exhibits will be reviewed at the hearing and then the government will have the opportunity to object or comment on them before they are entered into the record. In most cases, exhibits are not subject to significant objections.
- The Atmosphere: The case is typically held in a courtroom. If the Washington, D.C. area, it is usually held in Arlington. If the case is heard elsewhere in the country, DOHA usually secures a courthouse for the hearing. When you enter the DOHA hearing room, typically the applicant for a security clearance sits on the left hand side of the hearing room / table and the Department Counsel will sit on the right. There will be a court reporter, a witness room and a witness stand. In many aspects, DOHA treats the proceeding like a court hearing.
- Witness Sequestration: The witnesses (other than the applicant or clearance holder ) will likely be sequestered (kept out of the hearing room) before they testify. They should likely take with them books or other reading materials in order to pass the time until their testimony. After they testify, they may leave or stay for the remainder of the proceedings.
- Witness Issues: The witnesses, in turn, will usually testify to the left of the DOHA administrative judge. While the Administrative Judge does not provide an oath to witnesses, they will receive a warning from the Administrative Judge that it is a criminal offense to lie during the proceedings.
- Procedural Issues are Handled First: Typically, the administrative judge will hear any procedural issues first from both sides before starting the hearing. These can involve testimony that might be heard, telephone testimony, issues with exhibits and a number of other issues.
- Opening Statements: The DOHA hearing will usually then start with opening statements if a security clearance applicant is represented by an attorney. The Department Counsel will argue first to establish the security concerns at issue. The individual seeking the security clearance will provide opening statements second. The person seeking the security clearance has the burden of proof to show that their security clearance should be granted or recommended favorably. The Department Counsel, if one is present, is there to argue against the clearance or to see if sufficient mitigation exists or has been shown to defer such a decision to the Administrative Judge.
- Order of Witnesses: Typically, the government will be allowed to call witnesses first, but generally does not. The Department Counsel generally focuses on cross-examination of the applicant and his/her witnesses later in the hearing. The first witness called by the applicant’s security clearance attorney will most likely be the applicant who is the most important of all of the witnesses and will usually take the most time of all of the witnesses in testimony. Usually, the applicant will be examined by their attorney about the Statement of Reasons (SOR) at issue (or security concerns) his/her explanation of the security concerns and to testify about exhibits produced in the hearing and other mitigating information.
- Cross-Examination: Following an examination by the applicant’s attorney, the Department Counsel and/or the Administrative Judge will usually question each witness. The examinations will mostly center around the facts and issues related to the Statement of Reasons (SOR) issued earlier in the case. The Department Counsel will likely ask about any personal interviews or eQIP filings. Following cross-examination, and potential re-direct examination by the applicant’s attorney, they may called additional witnesses, like character or fact witnesses. Typically, this can run from 1 to 5 other witnesses. Once the applicant or clearance holder has completed presenting his case (finished with presenting all of their witnesses and exhibits), the parties move to the closing of the hearing process.
- Closing Arguments: Once the testimony is complete, the parties may be asked to provide their closing arguments in the case. Typically, the Department Counsel will provide their closing argument first, following by the applicant’s attorney. An administrative judge may allow the attorneys to offer rebuttal arguments should the need arise.
- Closing of the Record: Following closing arguments, the record will be closed (unless extended for some reason – i.e. the need to extend the closing date for the submission of additional exhibits that are needed). A party can request, usually for a few weeks, that the record be held open for additional documentation or other issues. Following the hearing, the court reporter will likely ask the clearance applicant or clearance holder to clarify names and other information provided during testimony.
- What Happens After Hearing: Usually, within a 2-4 weeks, the court reporter will provide a copy of the hearing transcript to the parties for their review. The court reporter will mail or email a copy of the transcript to the applicant or clearance holder’s attorney.
- Decision Issued: Depending on the status of the individual seeking the security clearance at issue before DOHA, federal employee or federal contractor, the Administrative Judge will then issue a recommended or final decision. For government contractors, the Administrative Judge will issue a final decision, which is subject to potential appeal. For federal employees, the Administrative Judge will provided a recommended decision to the employee’s personnel security appeals board, who will make the final decision.
- Appeals for Government Contractors: A government contractor, if they receive an unfavorable decision, may file an appeal within limited deadlines to an adverse decision.
Each DOHA hearing before an administrative judge can be unique so individuals are advised to have counsel represent them during the hearing process. We represent federal employees and government contractors in DOHA hearings nationwide and can be reached by telephone at (703) 668-0070 or through our website at www.berrylegal.com or through Facebook.