Clearance Appeals Process - Contractors
When the Personnel Security Management Office-Industry (PSMO-I) forwards a case to DOHA, the adjudication of the personnel security clearance case for a contractor employee is performed by DOHA personnel security specialists (adjudicators).
The adjudication policy has mitigating and disqualifying factors for each area of concern. At this stage, DOHA adjudicators can reject or send the case back to PSMO-I for adjudication, adjudicate the case themselves at DOHA or send the Applicant an Interrogatory for additional information about the issues at hand. If the DOHA security specialist adjudicators recommend that the case be submitted to an Administrative Judge for a determination whether to deny or revoke the security clearance, a Statement of Reasons (SOR) is issued by DOHA. The SOR is issued to the Applicant for a security clearance after a legal sufficiency review by a DOHA Department Counsel (DOD OGC).
The Applicant has thirty days to respond to the SOR by admitting or denying each separate allegation in the SOR (with further explanation if desired by the Applicant) and sign their answer in the presence of a notary. If the Applicant does not respond after a reasonable time, the Applicant is defaulted and clearance processing is terminated with resultant denial of a pending request for a security clearance and revocation of any current security clearance.
If an Applicant requests a hearing, it will be held in the United States, in a metropolitan area near where the Applicant lives or works before a DOHA Administrative Judge (AJ) who will decide the case. Some Applicants represent themselves or choose to be represented by an attorney at their expense or to have a Personal Representative such as a friend, family member or union representative. Department Counsel, a DOD OGC staff attorney, represents the Government and will present evidence and argument supporting the allegations made against the Applicant in the Statement of Reasons. Before the hearing the Department Counsel will send the Applicant a copy of the documents that will be presented to the Administrative Judge to support the allegations in the Statement of Reasons. The Applicant is responsible for bringing to the hearing any witnesses or written evidence he or she wishes to have the Administrative Judge hear or consider.
If the Applicant does not wish to have a hearing, and Department Counsel does not request one, the case will be decided by an Administrative Judge on the basis of the written materials presented by both sides. Department Counsel will prepare a File of Relevant Material that consists of documents that support the allegations contained in the Statement of Reasons and Department Counsel's arguments or comments based on those documents. Department Counsel will send a copy of the File of Relevant Material to the Applicant with a notice that the clearance Applicant will have 30 days in which to make a written response if the Applicant chooses to do so. If, after the 30 days have elapsed, no response from the Applicant is received, the Administrative Judge will make a decision based solely upon the written materials contained in the File of Relevant Material.
At the DOHA hearing, an Administrative Judge presides over a trial-type procedure which allows both the Department and the Applicant to put on their respective cases. DOHA Department Counsel represent the Government. The records OPM-FIS collects are usually the Government's main evidence. Witness testimony is often used to fill in the gaps of the paper record. For both parties, the testimony of witnesses may also be the only way to introduce certain documents into evidence. In some very rare instances, OPM Special Agents/Investigators may be asked to attest to the fact that they collected the records. The industrial hearing gives the applicant the opportunity to confront and cross-examine witnesses. Once the hearing is complete, the Administrative Judge issues a written decision.
The written decision by the Administrative Judge includes findings of fact and conclusions of law and is based upon the record evidence, written security suitability criteria and case law. In all decisions, DOHA applies the "clearly consistent with the interests of national security" standard. The U.S. Supreme Court has held that the "clearly consistent with the interests of national security" test indicates that "security-clearance determinations should err, if they must, on the side of denials."
The Administrative Judge's decision may be appealed by either party to a DOHA Appeal Board. The Appeal Board gives deference to the Judge's credibility determinations in deciding whether the Administrative Judge's findings of fact are supported by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the record. The Appeal Board ensures that the Administrative Judge adheres to the procedures required by Executive Order 10865 and DoD Directive 5220.6. The Appeal Board can remand or reverse for errors of law or fact or where the Administrative Judge's rulings or conclusions are arbitrary, capricious or contrary to law. Department Counsel also represent the interests of the Department on appeal and handle any actions arising out of the final decision.
The Appeal Board (The Board) decides appeals from decisions issued by Defense Office of Hearings and Appeals (DOHA) Administrative Judges in industrial security clearance and ADP cases. These are cases involving federal contractors and their employees. The Board does not have authority over cases involving military members or civilian employees of the Department of Defense. The Board does not have authority to resolve issues until after the Judge issues his or her decision. The appeal process is governed by the DOD DIRECTIVE 5220.6.
* PSMO-I (formerly DISCO)