This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC , an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By Melissa L. Watkins, Esq.
Our lawyers represent individuals before the Defense Office of Hearings and Appeals ( DOHA ) in cases involving their security clearances.
It is important to have legal representation during the DOHA hearing process, which can be very similar to typical court proceedings. The following is the process that one might expect at a security clearance hearing before a DOHA administrative judge.
How DOHA Cases Usually Start
DOHA cases typically begin when a federal contractor, military, or federal employee receives a Statement of Reasons (SOR) from the Defense Counterintelligence and Security Agency (DCSA). In submitting their response, the individual will have the choice of having their case heard by an administrative judge at DOHA or reviewed based on the written record. The process varies a bit based on whether the individual is employed by the government or is a government contractor. However, when a choice is made, electing a hearing before a DOHA Administrative Judge is our usual recommended choice.
Differences Between Contractors and Federal Employees
There are differences in the DOHA process for government contractors, military personnel, and federal employees. For instance, DOHA decisions for government contractors are binding. For federal employees and military personnel, DOHA decisions are recommended, and they will then be reviewed by other agency personnel for final decision. A DOHA Hearing for federal employees and military personnel is also known as a Personal Appearance as opposed to a hearing. However, no matter what type of employee one is, the DOHA hearing process is pretty similar.
How the DOHA Hearing Process Starts
The DOHA Hearing process usually begins after the individual has submitted their response to the SOR . At some point, the individual will then receive a notice from a government attorney at DOHA introducing themselves and stating that they plan to use certain exhibits during the hearing. The government attorney is referred to as Department Counsel. This will begin the process that will ultimately result in the setting of a date for the hearing and the assignment of an Administrative Judge.
Preparation for DOHA Hearings
Once a DOHA hearing date is set, the parties can start preparing for the hearing. The hearings are usually conducted online through Microsoft Teams, but some hearings are still conducted in person. The individual will want to make sure that they have all of their exhibits submitted to the Administrative Judge and Department Counsel in advance.
The procedures for submitting exhibit and witness lists are governed by DOHA rules or orders issued by the judge. Once submitted, these exhibits will be reviewed by Department Counsel, and they will have the opportunity to object to or comment on them before they are entered into the hearing record.
What Happens During a DOHA Hearing?
Typically, before going on the record, the Administrative Judge will check with the parties about any introductory issues. All witnesses will then be placed in another room, or if the hearing is online, they will be placed in an online waiting room. If no advance issues exist, the judge will instruct the court reporter to go on the record and the DOHA hearing will begin. Opening statements will typically be permitted by both parties. Department Counsel will introduce their exhibits and the judge will rule on any objections. Next, Department Counsel will call any witnesses that they plan to in their case.
After the Department Counsel closes their case, the individual, referred to as the Applicant, will be able to present their case. Applicant’s witnesses will be questioned one at a time by their attorney. They will also be given a warning that their testimony must be truthful or can subject them to criminal penalties. After their direct testimony, each witness is subject to cross-examination by the other attorney. In almost every case, the individual seeking to keep or obtain a security clearance will testify because they have the burden of proof.
Closing Argument
After the witnesses have testified, the parties will move to closing arguments. In some cases, it may be important to ask that the record be held open so that additional potential exhibits can be submitted before closing arguments. At this stage, Department Counsel will give their closing argument. Applicant’s lawyer will next give their closing argument for the Applicant. Department Counsel may then be provided an additional opportunity to rebut Applicant’s closing argument.
What Happens After the DOHA Hearing?
The timing for a decision in these cases can vary by Administrative Judge. Depending on the employment status of the person seeking the security clearance (government employee or government contractor), the Administrative Judge will then issue a recommended or binding final decision.
For federal employees/military personnel, the security clearance decision issued will be a recommended decision for final review and action 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 . Additionally, if a security clearance is lost, government contractors can later seek reconsideration after a year has passed.
Contact Us
Each DOHA hearing before an administrative judge can be 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 at www.berrylegal.com to schedule a consultation.
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