Security Clearance Adjudication for Government Contractors
DOD contractors and contractors for agencies that follow DOD policy can challenge adverse clearance determinations by requesting a hearing with the Defense Office of Hearings and Appeals (DOHA), the administrative body within the DOD that renders decisions on eligibility for access to classified information. Agencies that do not utilize DOD, including intelligence agencies, follow different processes which vary by agency.
The specific procedures applicable to DOD and DOD-affiliated government contractors for challenging security clearance determinations are described below.
What is DOHA’s Role in Clearance Hearings?
If DOD cannot “affirmatively find that it is clearly consistent with the national interest to grant or continue” an applicant’s security clearance, the case is referred to DOHA. Upon referral, DOHA may direct further investigation, issue written interrogatories to the applicant or other persons with relevant information, require the applicant to undergo a medical evaluation by a DOD psychiatrist, or interview the applicant.
What is the Role of Department Counsel?
The trial attorneys employed by DOHA to represent the government are referred to as “department counsel.” The department counsel is responsible for reviewing the answer to the Statement of Reasons (SOR).
Who is the Administrative Judge?
The attorneys who serve as Administrative Judges (AJs) represent the United States at DOHA. They are responsible for holding a fair and orderly hearing and issuing a final decision. AJs determine the admissibility of evidence, rule on motions, take administrative notice of relevant facts, and have authority to leave the record open to accept additional evidence. Critically, they make credibility determinations and issue decisions on each separate issue raised in the SOR.
Either department counsel or the AJ will communicate directly with the applicant’s attorney, either via telephone or email, to schedule an acceptable hearing date.
DOHA Hearing Procedures
A. What Are Your Rights to Counsel?
There is no constitutional right to counsel in DOHA proceedings. Nevertheless, under DOD policy, an applicant has the right to retain counsel or obtain a personal representative if they choose to do so.
Applicants who do not retain counsel (pro se applicants) are still expected to take timely, reasonable steps to protect their rights. The consequences of failing to do so do not constitute a denial of their rights. In some extreme circumstances, however, an applicant may be entitled to a new hearing if they can show that they lacked the information necessary to make an informed decision about whether to obtain counsel or a reasonable amount of time to obtain counsel.
B. What Are Your Rights to a Hearing vs. Decision on the Record?
Applicants may request a hearing or a decision on the written record by an AJ in their response to the SOR. Even if the applicant does not request a hearing, department counsel may do so within 20 days of receipt of the applicant’s response to the SOR.
If a decision on the record is chosen, department counsel will provide the applicant with all materials, evidence, and information that could be adduced at the hearing, including the FORM. The applicant then has 30 days to submit documentary evidence, objections, rebuttal, extenuation, mitigation, or explanation. When a decision on a written record is requested, it is incumbent on the applicant to address the allegations in the SOR and provide evidence in mitigation. If the applicant does not submit any response or additional materials, the judge’s decision will be based on the FORM.
C. Where Will the Hearing Take Place?
The hearing is held in the U.S. within a metropolitan area near the applicant’s place of employment or residence. Hearings may be held outside of the U.S. either in NATO cases or in other cases for good cause shown. It is DOHA’s usual practice to schedule hearings within 150 miles of the applicant’s place of employment or residence or at DOHA facilities. In the alternative, DOHA may conduct a hearing by video teleconference.
D. What Is Involved in Discovery?
Discovery at DOHA is limited relative to other court proceedings. The Directive provides for discovery by the applicant only of non-privileged documents and materials subject to control by DOHA. After the SOR has been issued, department counsel may take discovery only with the AJ’s permission upon a showing of good cause. An AJ does not have the authority to order other federal agencies to produce evidence requested by the applicant.
As far in advance as practical, department counsel and the applicant are required to exchange copies of any pleading, proposed documentary evidence, or other written communication to be submitted to the AJ; typically, that is the extent of discovery.
Both department counsel and applicants are required to notify the other party of the witnesses they intend to present at the hearing.
E. What Are the Prehearing Procedures?
With the Notice of Hearing, which sets the date and time for the hearing, the applicant will receive a Memorandum for All Applicants and Their Respective Attorneys or Personal Representatives, and Department Counsel, otherwise known as the Prehearing Guidance (PHG), setting forth in plain language the procedures to be followed at the hearing.
Before the hearing, the judge may require a prehearing conference, the usual purpose of which is to discuss exhibits and witnesses, obtain stipulations of fact, narrow the issues, and rule on the order of witnesses.
F. What Happens at the Hearing?
In most cases, applicants will be notified at least 15 days in advance of the time and place of their hearing.
Either party can request that the hearing be rescheduled. The request must be timely, show good cause for the extension, and be in writing.
An applicant’s failure to appear at the hearing may result in termination of DOHA’s processing and revocation of any clearance.
At the hearing, once the representatives have identified themselves for the record and preliminary matters are addressed, the applicant may make an opening statement, waive an opening statement, or wait until the government has concluded its case to make an opening statement. Following opening statements, department counsel will enter their exhibits. Department counsel is responsible for presenting witnesses and other evidence to establish controverted facts alleged in the SOR.
After the government concludes its case, the applicant will submit any exhibits to the judge and department counsel (unless they have been exchanged in advance). Then the applicant presents his witnesses. Both parties have the opportunity to cross-examine any witnesses called by the opposing party.
After completion of the parties’ presentations, they will have an opportunity to make closing arguments. Department counsel makes the first closing argument, followed by the applicant. Department counsel may then rebut. The applicant has no right to a final rebuttal.
G. Can Exhibits Be Included?
Both parties have the right to offer exhibits into evidence. Exhibits are exchanged between the parties in advance, and some judges also require copies of the exhibits prior to the hearing.
H. How Is Evidence Presented?
Applicants have the ultimate burden of persuasion for obtaining a favorable clearance decision and it is their responsibility to present witnesses and other evidence to support their case. The AJ is not responsible for gathering evidence for the benefit of either party, rather each party is responsible for gathering and presenting evidence for the judge to consider. A party who wishes to object to the admissibility of evidence must do so at the hearing.
I. Can Witnesses Be Called?
DOHA has no subpoena power to compel the attendance of witnesses. The form of questions posed to witnesses is much less stringent than in court cases and cross-examination is not confined to the scope of the direct examination.
J. What Are Ex Parte Communications?
Communications between one party and the judge without the other party present are called “ex parte communications” and are typically prohibited. That said, AJs have been known to call the parties independently (ex parte) to discuss procedural issues, such as ascertaining their availability for a hearing.
K. Can Administrative Judges Leave the Record Open?
AJ’s commonly leave the record open at the conclusion of the hearing for several weeks to allow the applicant to submit additional documentation in mitigation of the security concerns.
L. When Will the Administrative Judge Issue a Written Decision?
The AJ is to render a written decision “in a timely manner,” setting forth pertinent findings of fact, policies, and conclusions. A copy is emailed and/or mailed to the applicant. Information that could implicate national security, the identification of or information from a confidential informant, and classified information will be redacted from the AJ’s decision. Appeal rights will be included with the decision. Either party may appeal an adverse decision. If a timely notice of appeal is not filed, the decision becomes final.
Can You Seek Reimbursement for Lost Earnings?
Under DOD policy, an applicant who prevails may seek reimbursement for lost earnings ifapplicant can establish by clear and convincing evidence that suspension, denial, or revocation of the clearance was the primary cause of the pecuniary loss, and if the clearance suspension, denial, or revocation was due to gross negligence of the DOD, and not in any way by the applicant’s failure or refusal to cooperate. This is an incredibly high burden, however, and it is very rare, if ever, that petitions for lost earnings are granted.
Petitions must be filed within one year after the date the claim arises. Department counsel may file a response to the petition. The DOD General Counsel reviews the petition and makes a reimbursement decision.
What is the Appeal Process?
Either party may file a notice of appeal of the ID to the Appeal Board within 15 days of the ID’s date. A notice of cross-appeal by the other party is due 10 days from receipt of the notice of appeal. Late notices will only be accepted for good cause shown. The appeal brief must be filed within 45 days of the date of the ID (not within 45 days of the date of the notice of appeal). A reply brief must be filed within 20 days of receipt of the appeal brief. The Appeal Board will not receive or consider new evidence except to examine threshold issues of due process or jurisdiction.
Can You Reapply for a Clearance after Receiving an Unfavorable Decision?
“An applicant whose security clearance has been finally denied or revoked by the DOHA is barred from reapplication for one year from the date of the initial unfavorable clearance decision.” Directive 5220.6 ¶ E3.1.37
A reapplication, like an initial application, is made by the applicant’s employer to the DISCO (now DOD CAS) and is subject to the same processing requirements as a new application. The applicant has 60 days to provide the Director of DOHA a copy of the adverse decision, together with “evidence that circumstances or conditions previously found against the applicant have been rectified or sufficiently mitigated to warrant reconsideration.”
If the Director of DOHA determines that reconsideration is warranted, the case is then the case is returned for adjudication. That could result in the granting of the clearance or the issuance of a new SOR.
If the Director of DOHA determines that reconsideration is not warranted, that decision is final and bars further reapplication for an additional one-year period from the date of the decision rejecting the reapplication.
Information on this web page is derived from the fifth edition of Security Clearance Law and Procedure, written by KCNF partners Elaine L. Fitch and Mary E. Kuntz, with contributions from Elisabeth M. Baker-Pham and Aaron Herreras Szot.
The information on this page is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters, and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
