By John V. Berry, Esq., berrylegal.com
We represent government contractors, nationwide, in security clearance matters. The Department of Defense is responsible for approximately 80% of security clearances, which makes it, by far, the most common clearance issuer. This article focuses on security clearance issues faced by government contractors pending before the Department of Defense Consolidated Adjudications Facility (DoD CAF).
This article covers how a government contractor should respond to a DoD CAF) Statement of Reasons (SOR). The majority of individuals that have security clearance concerns resulting in an SOR could very much mitigate them if they obtain counsel that is familiar with the process. Security clearance holders should not try to respond on their own to an SOR. Here are the most common steps in the security clearance process.
Receipt of the SOR
A government contractor seeking or holding a security clearance will usually receive an SOR from their Facility Security Officer (FSO) or designee if significant security concerns are discovered. An SOR is generally a 2-3 page document listing the Government’s security concerns with an individual in holding a security clearance. A sample is attached.
There is some expected discretion when the SOR is provided so that the FSO does not share the information with supervisors. However, sometimes, depending on the experience of the FSO, some information does come out. In either event, once the SOR is received from DoD CAF, the individual usually has 20 days from receipt in which to respond. Do not waste any time in obtaining an appointment with an attorney given the short time in which to respond.
Very Short Time to Respond to SOR
From the date of receipt, there is a very short time in which to respond. Immediate action is required. An extension can be requested, but DoD CAF is not necessarily always responsive to such requests so valuable time can be wasted if one expects to get an extension. The individual should respond as if they have to respond within the 20 days. 20 days is not a lot of time to secure an appointment with an attorney, allow the attorney enough time to respond and obtain as many documents as possible in which to respond. Furthermore, one should always elect to have a hearing on the merits, as opposed to electing written submissions.
Response to Interrogatories at DOHA
If a security clearance case is not mitigated by DoD CAF, then the case will be forwarded to the Defense Office of Hearings and Appeals (DOHA) for further review, typically by Department Counsel. Depending on their review, the SOR can still be withdrawn and additional information can potentially be provided. Depending on the severity of the issues involved, the individual may receive an Interrogatories Request which seeks the answers to some additional questions. A sample Interrogatories request is attached here.
If the issues are still pending review, the individual or their attorney will receive a telephone call from the Government attorney assigned to the case to schedule a hearing. Following the notification, the Government will send a notice specifying the time and date of the hearing in the case (sample hearing notice).
The DOHA Hearing
On the day of the DOHA hearing, an individual will need to be fully prepared. They should have counsel if at all possible. A good rule of thumb is to arrive with all witnesses at least 30 minutes prior to the start of the hearing to enable everyone to be cleared and ready to testify. Most hearings take place in the Arlington, Virginia area, although a significant number take place nationwide. The general rule is that the hearing should be held within 150 miles of the individuals location. For example, we recently had a hearing in Phoenix, Arizona, which was held in the United States District Court. Sometimes, a hearing can be held by video-teleconference as well.
No matter the location, the process for the DOHA hearing is the same. Both parties will have been required to provide each other copies of their exhibits and hopefully the names of the witnesses. The witnesses, except for the Applicant, will be usually sequestered until called to testify. Once each witness testifies they can usually stay in the courtroom or leave.
The hearing will usually start with preliminary information about the hearing process from the administrative judge. Then the Government’s attorney, referred to as Department Counsel will offer opening statements. Following that, the individual (or his/her counsel) can provide an opening statement. After opening statements, the Department counsel can put on their case, but often does not present one other than their exhibits. Department counsel generally prefers to cross-examine the Clearance Holder.
At this point, the Applicant (the Clearance seeker or holder) will want to have all of their exhibits prepared (and have multiple copies of them to introduce into evidence. Subsequently, the Applicant then usually testifies first and then is cross-examined by Department Counsel. Following this testimony, other fact and character witnesses can be put forward by the Applicant and then cross-examined. Lastly, the Government and the Applicant are given a chance to present closing statements.
Receipt of Transcript and Final Decision
Approximately 4-6 weeks after the DOHA hearing, the court reporter will provide a copy of the transcript to the clearance holder or their counsel. The court reporter transcribes each proceeding and a transcript is provided to the Administrative Judge, the Department Counsel and the Applicant. The transcript is no charge for the Applicant.
Decision by Administrative Judge
Typically, between 4 and 8 weeks following the receipt of the hearing transcript, the final decision will be rendered. The security clearance holder will be asked to sign for receipt of the decision no matter who prevails within 7 days. Appeals rights for the losing party will also be provided. There are short deadlines for filing an appeal.
Appeals of DOHA Decisions
If a client does not prevail, we usually do not recommend filing an appeal. There is a short deadline in which to notice an appeal of 15 days, and then a 45-day deadline (starting from receipt of the decision) in which to file the appellate brief. In our experience, however, a negative decision rarely gets overturned. It is better, in most cases, to save on costs, attempt further mitigation during the year long wait and then seek out reconsideration. For 2019, the DOHA Appeals Board issued approximately 174 decisions on appeal. Of those:
a. Clearance Holder (Applicant) Loses: 151 (Applicant loses and appeals and loses on appeal)
b. Clearance Holder (Applicant) Wins: 10 remands for further review, 0 reversals
c. Department Counsel Appeals Favorable Decision and Wins: 9 wins, 1 remand for further review.
In a nutshell, of the 174 decisions, the Clearance Holder lost in approximately 164 case or so depending on how you look at it. That is about a 94% loss rate. By contrast, putting together a solid case for mitigation after a year long wait has a much higher success rate. In other words, unless other factors come into play, we generally do not recommend appeals of adverse administrative judge decisions at DOHA.
Reconsideration of Security Concerns
Typically, reconsideration of adverse DOHA decisions is the best option when an individual is issued an adverse decision by an administrative judge. The individual has to wait a year to re-apply, but they should be actively working to continue to mitigate the original security concerns during the one-year period of time that they have to wait. The reconsideration process begins when the individual seeks to apply for a new security clearance either through their original or a new sponsor.
Once the SF-86/e-QIP is completed, a notification will be sent by the Vetting Risk Operations Center (VROC) asking that the individual provide a written response about the original issues to DOHA along with exhibits, to demonstrate that they have successfully mitigated the original concerns. If granted, the clearance process, for the remainder of any issues, continues on but no longer focuses on the original security concerns. The reconsideration process is key and should be treated with great care. It is very important to explain how the individuals has changed since the initial decision, any other efforts at mitigation that have been undertaken and explain how the individual has taken the administrative judge’s original findings to heart and changed their behavior.
The security clearance process for clearance holders and/or applicants can be a short or long process. If issues arise, the key to improving one’s chances of success is to hire counsel to represent them in the clearance process. Our law firm advises individuals in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Additionally, our Facebook page is located here and our Twitter account is located here.