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 as you move towards 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. You should think of a DOHA hearing as less formal litigation but very similar to appearing in court. There is a judge and the government is represented by an attorney who is referred to as Department Counsel. You should be represented by a security clearance lawyer.
It is often the case that individuals come unprepared for a DOHA hearing and wish they had consulted a security clearance attorney earlier. Having legal counsel represent you in this forum is highly advised. The following is a typical chronology of a hearing before DOHA and an administrative judge. Keep in mind there are some slight differences in the process between federal employee and government contractor clearance proceedings before DOHA.
Chronology of a DOHA Appeal
The process and procedures for a DOHA administrative judge hearing vary, depending on each case, and certain procedures can also vary between individual judges. The following is a chronology of what you might expect in a typical DOHA hearing case:
Pre-Hearing DOHA Process
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 of setting eventually setting the hearing date and receiving notice of the administrative judge assigned.
2. Prior to the date of the DOHA hearing, the clearance applicant (if in person) should ensure 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, Virginia. 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. Also, keep in mind that most hearings have moved to a virtual platform so very few hearings are in person these days.
3. The Applicant must make sure that they have all of their exhibits submitted to the Department Counsel in advance (so that they have a chance to prepare their case), according to DOHA rules. These exhibits will be reviewed by Department counsel and then the government will have the opportunity to object or comment on them before they are entered into the hearing record. Judges also require advance submissions of exhibits so that they can prepare to hear the case.
Start of the DOHA Hearing
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 Department Counsel (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. As noted above, DOHA has also moved recently to permit most 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 before they testify. They will then be escorted into the hearing room to testify, one at a time. Again, in virtual settings, witnesses are sequestered electronically (cannot participate or view virtual hearing until their testimony). When the judge is ready to hear a virtual witness they are allowed into the electronic hearing room.
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). If held online, this really doesn’t apply.
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 which 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. While there is the ability to object based on evidence, this ability is more limited in a DOHA hearing.
Opening Statements and Testimony
9. A DOHA hearing will usually then start with opening statements if a security clearance applicant is represented by an attorney. The Department 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 Department Counsel 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 often 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. In other cases, the best strategy is to call the applicant last for testimony.
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.
Closing Arguments and Extended Record
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). If the hearing remains open for additional exhibits this can last an addition 2 weeks to 4 weeks, in general before the record is closing.
Following the DOHA Hearing
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 will 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 reconsideration 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 is 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 here to schedule a consultation.
