DOHA PRE-HEARING PROCESS

Several years ago I wrote an article about “Rebutting and Appealing Security Clearance Denials.”  Since then things have changed regarding federal contractor clearances, but much of the information in that article remains valid today.  What has changed slightly is the adjudication process.  In late 2012 the positions for staff adjudicators at the Defense Industrial Security Clearance Office (DISCO) and staff adjudicators at the Defense Office of Hearings and Appeals (DOHA) were transferred to the Industry Division of the DOD Consolidated Adjudications Facility (DOD CAF).  The DOHA attorneys and administrative judges remained at DOHA, and the DISCO positions responsible for the front-end processing of clearances were transferred to the Personnel Security Management Office for Industry (PSMO-I) at the Defense Security Service (DSS).

When a staff adjudicator at the Industry Division (Division A) of DOD CAF makes a preliminary decision that a clearance should be denied or revoke, he/she writes a Statement of Reasons (SOR) explaining the basis for this decision.  The SOR is submitted to DOHA for review and approval, before it is sent to the clearance applicant.  If you are issued an SOR, it will be sent to your Facility Security Officer (FSO) in a double envelope.  The sealed inner envelope will be given to you unopened.  If you choose not to respond to the SOR, your clearance will be denied or revoked without further consideration.  If you choose to respond to the SOR, you submit your response to DOD CAF; however, your SOR response will be forwarded from DOD CAF directly to DOHA without being reviewed at DOD CAF.  The DOHA Chief Department Counsel may approve the withdrawal of your SOR based solely on your written SOR response.  If this occurs, your clearance will be granted or continued without further action.

As part of your SOR response you have the option of requesting a hearing before a DOHA Administrative Judge (AJ) or a decision by a DOHA AJ based on the written record.  Either way, you’ll have the opportunity to be represented by counsel, make a complete presentation, and develop a full factual record, as well as make arguments to be considered by an AJ, who is an independent decision-maker.

When you request a hearing, the DOHA attorney (Department Counsel—DC) assigned to your case sends you a letter with information about the hearing.  This usually occurs a month or two after DOHA has received your SOR response.  In the letter the DC introduces himself/herself, provides contact information, and informs you of the location and approximate date of the hearing—usually 30 to 45 days from the date of the letter.  You are advised of your right to represent yourself, retain an attorney, or obtain the help of another person, such as a union steward, friend, family advisor, or other personal representative.  The letter identifies the documents and witnesses (if any) the DC intends to offer as evidence at the hearing.   You are informed of your right to object to the proposed evidence and of your responsibility to provide the DC with advance copies of documents you intend to offer as evidence at the hearing.  Typically the DC will identify some or all the following documents that he/she will offer as evidence at the hearing:

• Electronic Questionnaires for Investigations Processing (e-QIP) version of the Questionnaire for National Security Positions (SF86).
• Statement of Reasons and Applicant’s answer to the Statement of Reasons with attachments.
• Written Interrogatory and Interrogatory response with attachments.
• Report of Personal Subject Interview.
• Other documents relevant to the issues cited in the SOR (e.g. credit reports, bankruptcy records, psychological reports, criminal records, request for Administrative Notice of facts regarding a foreign country, etc.).

Items offered as evidence by applicants usually include documents that relate directly to the issues alleged in the SOR, such as financial documents, court/legal documents, mental health records, correspondence, and affidavits from people who have direct knowledge of the issue(s).  To support a positive Whole-Person assessment, you can also offer letters/affidavits of recommendation from character references, military service records, documents related work or academic achievement, and documents showing constructive community involvement.  You can also have people present testimony at the hearing regarding their knowledge of the issues and/or their general knowledge of your character and reliability.

Prior to a hearing being scheduled, the DC will contact you to discuss potential dates and locations for the hearing.  Once a date and location has been set by the AJ, a “Notice of Hearing” will arrive from the AJ’s assistant.  You will receive the Notice of Hearing in a sealed envelope from your FSO.  The notice identifies the AJ who will preside over the hearing, as well as the location and date of the hearing.  The hearing date is usually about two to four weeks from the date of the Notice of Hearing.

As stated earlier, a well written SOR response with strong supporting documentation can obviate the need for a hearing.  However, sometimes it’s not possible to gather all the supporting documents in time to include them with your SOR response, and sometime events occur after you submit your SOR response but before the hearing date.  It’s wise to begin preparing for your hearing as soon as you have submitted your SOR response, to continue gathering documents and arranging for witnesses right up to the date of the hearing, and to promptly inform the DC of any changes.

The decision to obtain assistance from an attorney/personal representative or to represent yourself at the hearing will depend on many things.  Your ability to clearly and persuasively articulate factors bearing on your clearance eligibility, the nature of the allegations against you, the strength of the evidence you can present, the cost of professional representation, and the current and future value of a security clearance should all be taken into consideration.  Although, you may appeal an AJ’s decision to deny or revoke your clearance; appeals to the three-member DOHA Appeal Board are very limited in scope and rarely successful.  It’s also possible to reapply for a clearance one year after a denial/revocation, but you have to get clearance sponsorship from an employer, you have to provide justification for your reapplication, and your reapplication must be approved by the DOHA Director before a new clearance investigation will be initiated.  So, as a practical matter the hearing is your last chance to present your case.

The DOHA hearing is designed to facilitate self-representation by an applicant.  If you’re confident you can obtain a favorable decision on your own, you should at least review similar cases at the DOHA website and do as much research as possible before the hearing.  If you have any reservations about doing this, you should seek the assistance of a knowledgeable party who can help you prepare for the hearing and/or represent you at the hearing.  If you’re contemplating representing yourself at the hearing, see my article, “The DOHA Hearing,” for a preview of what to expect.

By William H. Henderson

Copyright © 2015 Federal Clearance Assistance Service.  All rights reserved.