If you have had your federal security clearance application denied, this is not the end of the process. You have the right to challenge the denial; and, in many cases, this involves seeking a hearing before the Defense Office of Hearings and Appeals (DOHA). Preparing for and attending a DOHA hearing is a unique process, so it is important to know what you can (and should) expect along the way. Here are some key insights from the federal security clearance attorneys at Bell Law Group:
Should You Request a DOHA Hearing Regarding Your Federal Security Clearance?
Before we talk about what it’s like having a hearing in front of DOHA, we first need to talk about when you should request a DOHA hearing. While contractors, job applicants, and federal employees will often have grounds to challenge their federal security clearance denials, this is not always the case, and there is no point in requesting a DOHA hearing if your denial is justified.
When you found out that your federal security clearance was being denied, you should have received a Statement of Reasons (SOR) from the Defense Counterintelligence and Security Agency (DCSA). Your SOR should clearly state the reason (or reasons) for your security clearance denial. While there are a variety of specific reasons why a security clearance application might be denied, these specific reasons broadly fall (or should broadly fall) under one of the thirteen Adjudicative Guidelines for determining security clearance eligibility:
- Allegiance to the United States
- Foreign Influence
- Foreign Preference
- Sexual Behavior
- Personal Conduct
- Financial Considerations
- Alcohol Consumption
- Drug Involvement
- Emotional, Mental and Personality Disorders
- Criminal Conduct
- Security Violations
- Outside Activities
- Misuse of Information Technology Systems
For each of these Adjudicative Guidelines, the DCSA applies nine factors to determine whether issues with an individual’s background warrant denial of the individual’s security clearance application. These nine factors are:
- “The nature, extent, and seriousness of the conduct;
- “The circumstances surrounding the conduct, to include knowledgeable participation;
- “The frequency and recency of the conduct;
- “The individual’s age and maturity at the time of the conduct;
- “The voluntariness of participation;
- “The presence or absence of rehabilitation and other pertinent behavioral changes;
- “The motivation for the conduct;
- “The potential for pressure, coercion, exploitation, or duress; and,
- “The likelihood of continuation of recurrence.”
Once you receive an SOR, your next step should be to consult with an attorney who can help you determine if you have grounds to challenge your security clearance denial. If you do, your attorney will then walk you through the process of seeking to have your denial overturned through a DOHA hearing.
Understanding the DOHA Hearing Process: An Overview
Let’s assume that you have grounds to challenge your federal security clearance denial. What are your next steps, and what can you expect as you move forward?
1. Preparing Your Response to Your NOR
The first step in the process is to prepare your response to your NOR. This will involve providing a written explanation as to why the denial of your security clearance application is unwarranted, along with supporting documentation. Due to the challenges involved—and the importance of securing your federal security clearance—it is strongly in your best interests to work closely with an experienced attorney from the beginning of the process.
2. Reviewing the Notice and Exhibits from DOHA’s Department Counsel
After submitting your response to your NOR, you should at some point receive a response from Department Counsel at DOHA. This is an attorney who represents the federal government. This response should generally include both a written notice and a copy of any exhibits that Department Counsel intends to introduce at your DOHA hearing.
3. Working Directly with DOHA’s Department Counsel
At this stage, it may be possible to work directly with DOHA’s Department Counsel to achieve a favorable resolution. If there are clear issues with your SOR, your attorney may be able to work with the Department Counsel to reverse your security clearance denial without the need for a formal hearing.
4. Preparing for Your DOHA Hearing
If the Department Counsel is unwilling to reverse your security clearance denial without a hearing, then the next step will be to begin preparing for the hearing itself. Here too, you will want to work closely with your attorney to ensure that: (i) your attorney has all of the information he or she needs to build a case that is as strong as possible; and, (ii) you are prepared to present yourself professionally and help your attorney successfully argue for a reversal.
5. Preparing Your Exhibits and Witnesses
Just as DOHA’s Department Counsel will be presenting evidence in support of the government’s position, you (or your attorney) will need to present evidence as well. To prepare for your DOHA hearing, your attorney may gather several different types of exhibits and identify witnesses who can testify in support of your application for security clearance.
6. Attending Your DOHA Hearing
After these preliminary steps are complete, the next step is to attend your DOHA hearing. During your hearing, both sides will present their opening statements and exhibits, question their witnesses, and then present their closing arguments. Most DOHA hearings take about half a day, though they can be longer or shorter depending on the number of issues and volume of evidence involved.
7. Filing an Appeal with the DOHA Appeal Board or PSAB if Necessary
If your DOHA hearing is successful, this should be the end of the matter—and you should receive your federal security clearance. However, if it is not successful for any reason, you have the right to file an appeal. Depending on whether you are a federal employee or job applicant or an employee or job applicant of a government contractor, you may need to file your appeal with either the DOHA Appeal Board or the Personnel Security Appeals Board (PSAB).
Request a Free Consultation with a New York Security Clearance Attorney at Bell Law Group
Are you facing a security clearance denial? If so, we encourage you to contact us for more information. To request a free consultation with a New York security clearance attorney at Bell Law Group, please call 516-280-3008 or tell us how we can get in touch online today.
