By John V. Berry, Esq., www.berrylegal.com
If you are a federal employee or contractor whose security clearance is under review (commonly referred to as the Applicant) 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 to take into account as you move forward to the hearing.
Before the DOHA, an applicant for a security clearance should be well prepared, in advance, to present their case at the hearing. Having legal counsel represent you in this forum is highly advised. Below are some considerations that we take into account when representing federal employees and federal contractors as they approach the hearing stage at DOHA before an administrative judge.
The process of a DOHA hearing, which can vary between cases, usually proceeds as listed below:
1. Prior to the date of the hearing, you need to make sure that you have contact information available to ensure that you have an escort to the hearing room. You will want to arrive early with your witnesses to ensure that you are on time for the proceedings.
2. The Applicant must make sure that they have all of their exhibits submitted to both the administrative judge and the government’s attorney (if there is one) in advance, according to the rules. These exhibits will be reviewed and then the government will have the opportunity to object or comment on them before they are entered into the record.
3. When you enter the DOHA hearing room, typically the applicant for a security clearance sits on the left hand side of the hearing room / table and the government attorney (if there is one) will sit on the right.
4. The witnesses (other than the applicant for a security clearance) will likely be sequestered (kept out of the room) before they testify.
5. The witnesses, in turn, will usually testify to the left of the DOHA administrative judge.
6. Typically, the administrative judge will hear any procedural issues first from both sides before starting the hearing.
7. The hearing will usually then start with opening statements if a security clearance applicant is represented by an attorney. The applicant’s attorney will go first because the person seeking the security clearance has the burden of showing that their clearance should be granted or recommended favorably. The government’s attorney, if one is present, will then have the option to provide their opening statement if they wish to do so.
8. The first witness called by the 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.
9. 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) issued earlier in the case.
10. Once the applicant has completed presenting his case (finished with presenting all of their witnesses and exhibits), the government, if it wishes, can introduce their own witness testimony and exhibits to use in arguing against the granting of a security clearance for the applicant.
11. Once the testimony is complete, the parties may be asked to provide their closing arguments in the case.
12. 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).
13. Depending on the status of the person seeking the security clearance at issue, federal employee or federal contractor, the administrative judge will then issue a recommended or final decision.
14. The proceedings before the DOHA administrative judge are transcribed by a court reporter and the parties will usually be able to obtain a copy of these when they become available.
Each DOHA hearing before an administrative judge can be unique so individuals are advised to have counsel represent them during the hearing process.