The security clearance application process is initiated by an employer or government sponsor (the government office that needs a contractor to have a clearance). Once the clearance is initiated, the individual will have to complete a SF-85 (Questionnaire for Non-Sensitive Positions) or SF-86 (Questionnaire for National Security Positions). This is normally done online through the OPM website. The questionnaire is commonly referred to as an e-QIP or EQIP (Electronic Questionnaires for Investigation Processing). Once the security clearance applicant completes the e-QIP, it will be submitted by the employer/sponsor to OPM for investigation. OPM conducts most security clearance investigations, especially for DoD components. An applicant who hears nothing about his or her security clearance is normally in good shape – a favorable adjudication (granting of a clearance) normally happens without any fanfare. But when there is an issue with an applicant’s security clearance investigation, the applicant will know it. The first thing that normally happens is an OPM investigator or the security officer for the employer/sponsor will contact the applicant. The applicant will then be challenged regarding information reported on the e-QIP or, sometimes, information that was not included on the e-QIP that should have been (failure to disclose). That, in many cases, is the end of it and the issue is resolved. Or, the applicant will soon receive a Statement of Reasons from the Department of Defense Consolidated Adjudication Facility.
The DoD CAF will inform the applicant that it is unable to find that it is clearly consistent with national security to grant the applicant access to classified information. The letter will then provide the applicant the reasons for this finding, referencing the applicable Guideline(s) from DoD Directive 5220.6, and a list of the specific evidence that raises the concern(s). The applicant is required to respond to the Statement of Reasons, commonly called an Answer to the Statement of Reasons, and elect a hearing before an administrative judge or request the clearance be decided based only on a written record (called a FORM – File of Relevant Material). In our experience, all applicants benefit from electing a personal appearance hearing before a DOHA administrative judge.
Once CAF receives the Answer and election in writing from the applicant, the file will be forwarded to the Defense Office of Hearings and Appeals (DOHA), where it will be assigned to a Department Counsel (a government attorney representing DoD from the Defense ) and an administrative judge. The Department Counsel will send a discovery package to the applicant or applicant’s lawyer that includes the exhibits that will be submitted to the judge at the security clearance hearing and a list of any witnesses he/she intends to call. This is where it starts to become litigation. Keep in mind that the Department Counsel has handled hundreds of these hearings. An applicant is required to do the same – provide proposed exhibits and a witness list to the Department Counsel in advance of the hearing. Failure to be on top of this “discovery” may lead to objections to admitting such evidence at the hearing.
It is important for the Applicant to immediately begin working to build a case to challenge the Statement of Reasons because the judge will, on his or her own initiative issue a Notice of Hearing that provides a date, time, and location for the security clearance hearing. By law, only 15 days notice is required for the hearing! Here is a sample DOHA security clearance hearing notice. A security clearance hearing can generally only be delayed upon written motion and for good cause.
Do you need a lawyer to represent you at a DOHA Security Clearance Hearing?
Yes. First, the opposing party (the folks that think you should not get a clearance) will be represented by an attorney (the Department Counsel) who has handled hundreds (perhaps even thousands!) of security clearance cases. An applicant gets his or her first, and only, hearing. Does that sound like a fair match-up from the start? Second, the Federal Rules of Evidence serve as a guide for the admission of evidence at the hearing. I am not familiar with many non-lawyers who have read and understand those rules. Third, a security clearance hearing comes down to evidence. What is evidence? Witnesses, documents, photographs, physical items – anything that can be produced and made part of a record. When most applicants think of “making a record” they envision the Beatles in the studio! Lawyers “make records” every day in court, and a record is the most important thing because it is what the DOHA administrative judge will reference when he determines whether or not to grant a clearance. There are many more reasons to hire a lawyer for a security clearance hearing – but make sure you hire the right lawyer for your hearing. Not all lawyers have experience in DoD DOHA security clearance hearings. It’s quasi-military law, and lawyers who have never been in a military hearing before will be a like a fish-out-of-water!
Whether you have an HSPD-12 (CAC Card) case or a Security Clearance case, Attorney Patrick Korody has a proven track record of success. As a former Navy JAG (most security clearance judges and Department Counsel are former JAGs), he has inside knowledge on how the Department of Defense processes clearances and prepares for security clearance hearings.