By John V. Berry, Esq., www.berrylegal.com
Often times, federal employees and government contractors encounter issues with their security clearance renewal or initial application. The individual generally first completes their SF-86 through e-QIP and an investigation ensues. When security concerns arise these individuals are eventually provided a Statement of Reasons (SOR) as to why they shouldn’t be granted a security clearance. The individual then responds to the SOR and ultimately chooses to litigate their security clearance issue before the Defense Office of Hearings and Appeals (DOHA).
The case is then assigned to an administrative judge and the clearance case is heard. The administrative judge in the case will then later issue a decision on the security clearance matter (generally 2-4 months after the hearing) either finding in favor of the individual (generally referred to as the Applicant) or not. If the decision is issued in the individual’s favor, the individual is granted their security clearance. However, if the DOHA administrative judge rules against the individual’s eligibility for a security clearance, the next step is to file an appeal with the DOHA Appeal Board. Appeals before the DOHA Appeal Board are governed by Department of Defense (DOD) Directive 5220.6, often referred to as the “Directive.”
Procedural Considerations
Upon receipt of an unfavorable security clearance decision from the DOHA administrative judge, the individual/applicant generally has 15 days from the date of the decision to file a Notice of Appeal with the Chairman of the DOHA Appeal Board. The Notice of Appeal is different than the filing the appellate brief, which is due later in the process. An important point here is that the Notice of Appeal must be filed (not just submitted or in the mail) with DOHA prior to the expiration of the 15-day deadline. The purpose of the Notice of Appeal is just to put DOHA on notice that the Applicant intends to file an appeal in this case and that the appellate brief will be forthcoming.
Filing the Appellate Brief
The next step in appealing the decision of the DOHA administrative judge is to file the Applicant’s Appellate Brief. The Appellate Brief should explain, in detail, the legal arguments that would support reversal of the administrative judge’s decision with regards to a security clearance denial. The Appellate Brief should also specifically cite to the facts and sections of the record that are involved in the appeal.
The Appellate brief must be filed within 45 days of the date of the unfavorable administrative judge decision. Again, the brief must be filed, not just submitted, within that timeframe. The Appellate Brief should focus on the specific legal arguments raised as a result of the earlier proceedings and the record that was developed during the hearing process. Applicants should keep in mind that the DOHA Appeal Board does not hear new evidence on appeal, but just reviews the record from the beginning of the case through the hearing process.
Some of the more common arguments raised by individuals on appeal include the following:
1. Challenging an Administrative Judge’s Findings of Fact.
Example: Putting forth a legal argument asserting that the administrative judge’s findings in a case were incorrect based on the evidence in the record.
2. Contending that an Administrative Judge’s Legal Conclusions were Arbitrary and Capricious.
Example: Arguing that the administrative judge erred with respect to their interpretation of law, rule and regulations in making an unfavorable decision.
3. Challenging Whether or Not the Government Met its Burden of Proof.
Example: Making the argument that the government did not meet it’s burden of proof with respect to the allegations in the SOR.
4. Contesting the Whole Person Analysis at the Hearing Stage.
Example: Arguing that the administrative judge did not properly evaluate the whole person analysis during the hearing stage based on the evidence of record.
There are other grounds for contesting an unfavorable decision, but the 4 arguments listed above tend to be the most common arguments used.
The Government’s Reply Brief
The attorneys representing the government at the DOHA stage have the right to file a Reply Brief in response to the issues raised in the Appellate Brief. They usually have 20 days to file this Reply Brief. Sometimes the government does not file one, and it is considered optional by DOHA.
Decision by the DOHA Appeal Board
Following submission of the Appellate Brief and the Reply Brief, the DOHA Appeal Board will review the legal arguments raised and the evidence of record and then will issue a decision after reviewing the record and the briefs.
Further Review after DOHA Appeal Board Decision
In the case of an unfavorable DOHA Appeal Board decision further review of the case is possible, but it is at the discretion of the Board. The DOHA Appeal Board has ruled in the past that it has the ability to reconsider their own decisions. There is, however, no apparent right for reconsideration, but the Board has the inherent authority to reconsider determinations that have been made. See ISCR Case No. 98-0621 (“There is no right to reconsideration; rather, the Board has the sole discretion to decide whether to exercise its inherent authority to reconsider one of its decisions.”).
Conclusion
When faced with an appeal of an unfavorable security clearance determination by a DOHA administrative judge, it is very important to obtain counsel to evaluate whether to take an appealforward and also for representation during the process. If an individual has questions about this process, they can contact our Firm at www.berrylegal.com to schedule a time to go over their individual security clearance appeal issues.