By John V. Berry, www.berrylegal.com
If you are a federal employee or government contractor whose security clearance is under review 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 that should be made before you move forward to the hearing phase.
Before DOHA, an applicant for a security clearance (or clearance holder) should be well prepared, in advance, to present their case at a hearing. It is often the case that individuals come unprepared for a DOHA hearing and walk away feeling less than confident about the outcome. Having legal counsel represent you in this forum is highly advised. Below are some considerations that our law firm takes into account when representing federal employees and federal contractors as they approach the hearing stage at DOHA before an administrative judge.
Timeline of a DOHA Case
The process and procedures for a DOHA administrative judge hearing varies, depending on each case, and certain procedures can also vary between judges. The following is a chronology and/or some tips regarding typical DOHA hearing cases:
1. The DOHA Hearing process generally starts when the individual receives notice from a government attorney at DOHA introducing themselves and indicating that they plan to use certain exhibits against the person during the hearing. This will begin the process that will ultimately coordinate the date for hearing and the assignment of the specific administrative judge.
2. Prior to the date of the DOHA hearing, the clearance applicant needs to make sure that they have DOHA contact information available to ensure that they have an escort to the hearing room, which, in the Washington, D.C. area is in Ballston. You will want to arrive early with your witnesses to ensure that you are on time for the proceedings and have enough time to clear security.
3. The Applicant must make sure that they have all of their exhibits submitted to the Government counsel in advance (sometimes the administrative judge where the judge prefers this), according to DOHA rules. These exhibits will be reviewed by government counsel and then the government will have the opportunity to object or comment on them before they are entered into the hearing record.
4. When you enter most formal DOHA hearing rooms, typically the applicant for a security clearance will on the left hand side of the hearing room / table and the government attorney (if there is one) will sit on the right. The court reporter will be to the right of the administrative judge and the witness stand will be on the left. DOHA has also moved recently to permit many of the hearings to take place virtually through Microsoft Teams which has changed some of the dynamics for those cases.
5. The witnesses (other than the applicant for a security clearance) will almost always be sequestered (kept out of the room) before they testify. They will then be escorted into the hearing room to testify, one at a time.
6. The witnesses, in turn, will usually testify to the left of the DOHA administrative judge (when observing the procedures from the applicant’s table).
7. Typically, the administrative judge will hear any procedural issues first, from both sides, before starting the hearing. There could be witness issues or evidentiary issues that need to be discussed before the start of the formal proceedings.
8. Exhibits will then generally be reviewed for marking and admissibility by the administrative judge. Typically, both sides have reviewed the other’s exhibits before the hearing and most exhibits are generally agreed to.
9. A DOHA hearing will usually then start with opening statements if a security clearance applicant is represented by an attorney. The government counsel will often go first. The clearance applicant’s attorney will next offer their statement if they chose to do so.
10. Typically, while the government attorney usually presents their case first, they tend not to usually put on their own case but instead examine the security clearance applicant on cross-examination. In other words, their case will typically rely on information gained from cross-examining the security clearance applicant. As a result, the security clearance applicant or clearance holder will present their case first.
11. 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. Since the security concerns principally involve the person at issue it makes sense that their testimony would take the longest.
12. Following an examination by the applicant’s attorney, the government’s attorney and/or the administrative judge will question each witness. The examination will mostly center around the facts and issues related to the Statement of Reasons (SOR) or Intent to Revoke issued earlier in the case.
13. Once the witness testimony is complete, the parties may be asked to provide their closing arguments in the case. This typically takes the form of closing arguments, but written briefs, if a key legal issue is involved, are possible.
14. 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).
15. Usually, after 2-6 weeks, a copy of the transcript will be sent to the clearance attorney’s attorney or applicant and government counsel for review.
16. Depending on the employment status of the person seeking the security clearance at issue, federal employee or government contractor, the administrative judge will then issue a recommended or final decision. For federal employees, the security clearance decision issued tends to be a recommended decision for final review by a federal agency’s personnel security appeals board (PSAB). For government contractors, the administrative judge’s decision issued is final, but the losing party has the opportunity to appeal to DOHA Appeal Board.
17. Depending on the type of employment involved, if an employee is denied a security clearance, in many cases, depending on circumstances, they can re-apply through the consideration process a year later.
18. Even if a difficult security clearance case is not won in the initial appeal, depending on the individual circumstances, an individual can increase their chances of eventually obtaining a security clearance by challenging the initial negative determination and putting on a strong case. Doing so can lay the foundation for eventually recovering or receiving a security clearance.
Contact Us
Each DOHA hearing before an administrative judge can be unique so individuals are advised to have counsel represent them during the DOHA hearing process. If you need assistance with a security clearance issue, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation.
BERRY & BERRY PLLC 