Please Review Your Supplemental Statement of the Case

Past John Five. Berry, Esq., berrylegal.com

We correspond government contractors, nationwide, in security clearance matters.  The Department of Defence is responsible for approximately fourscore% of security clearances, which makes it, by far, the most common clearance issuer. This article focuses on security clearance issues faced by authorities contractors pending earlier the Department of Defense force Consolidated Adjudications Facility (DoD CAF).

This article covers how a government contractor should respond to a DoD CAF) Statement of Reasons (SOR). The majority of individuals that have security clearance concerns resulting in an SOR could very much mitigate them if they obtain counsel that is familiar with the process. Security clearance holders should not try to respond on their ain to an SOR.  Here are the most common steps in the security clearance process.

Receipt of the SOR

A government contractor seeking or holding a security clearance will usually receive an SOR from their Facility Security Officer (FSO) or designee if significant security concerns are discovered. An SOR is generally a 2-iii page document list the Regime's security concerns with an individual in holding a security clearance. A sample is attached.

In that location is some expected discretion when the SOR is provided and so that the FSO does not share the information with supervisors. Nevertheless, sometimes, depending on the experience of the FSO, some information does come out. In either event, once the SOR is received from DoD CAF, the individual normally has 20 days from receipt in which to reply. Practice not waste any fourth dimension in obtaining an appointment with an chaser given the curt time in which to respond.

Very Short Time to Respond to SOR

From the date of receipt, there is a very brusk time in which to respond. Immediate action is required.  An extension tin exist requested, but DoD CAF is not necessarily always responsive to such requests so valuable time tin be wasted if one expects to get an extension. The individual should answer as if they have to respond within the 20 days.  twenty days is not a lot of time to secure an appointment with an attorney, allow the attorney plenty time to respond and obtain as many documents as possible in which to respond. Furthermore, one should ever elect to have a hearing on the merits, as opposed to electing written submissions.

Response to Interrogatories at DOHA

If a security clearance case is not mitigated by DoD CAF, then the instance will be forwarded to the Defense Office of Hearings and Appeals (DOHA) for further review, typically by Department Counsel. Depending on their review, the SOR can notwithstanding be withdrawn and additional information can potentially be provided. Depending on the severity of the bug involved, the individual may receive an Interrogatories Asking which seeks the answers to some additional questions. A sample Interrogatories request is attached hither.

Hearing Notification

If the issues are notwithstanding pending review, the individual or their attorney volition receive a phone call from the Government attorney assigned to the case to schedule a hearing. Following the notification, the Authorities will send a notice specifying the time and date of the hearing in the case (sample hearing find).

The DOHA Hearing

On the twenty-four hours of the DOHA hearing, an individual volition need to be fully prepared. They should take counsel if at all possible. A good rule of thumb is to go far with all witnesses at least 30 minutes prior to the beginning of the hearing to enable everyone to be cleared and ready to testify.  Most hearings have place in the Arlington, Virginia surface area, although a significant number take place nationwide. The general dominion is that the hearing should exist held inside 150 miles of the individuals location.  For example, we recently had a hearing in Phoenix, Arizona, which was held in the United States Commune Court.  Sometimes, a hearing can exist held by video-teleconference besides.

No matter the location, the process for the DOHA hearing is the same. Both parties volition take been required to provide each other copies of their exhibits and hopefully the names of the witnesses.  The witnesses, except for the Applicant, volition be usually sequestered until called to evidence. Once each witness testifies they tin ordinarily stay in the courtroom or leave.

The hearing volition commonly start with preliminary information about the hearing process from the administrative gauge. Then the Government'southward attorney, referred to as Department Counsel volition offer opening statements. Following that, the private (or his/her counsel) can provide an opening statement.  Later opening statements, the Department counsel can put on their case, only ofttimes does not nowadays 1 other than their exhibits. Department counsel generally prefers to cross-examine the Clearance Holder.

At this point, the Applicant (the Clearance seeker or holder) volition want to have all of their exhibits prepared (and take multiple copies of them to introduce into bear witness.  Subsequently, the Applicant so usually testifies first and so is cross-examined past Department Counsel. Following this testimony, other fact and grapheme witnesses can exist put forwards past the Applicant and and so cross-examined. Lastly, the Government and the Applicant are given a take chances to present endmost statements.

Receipt of Transcript and Terminal Determination

Approximately iv-6 weeks after the DOHA hearing, the court reporter will provide a copy of the transcript to the clearance holder or their counsel. The court reporter transcribes each proceeding and a transcript is provided to the Administrative Guess, the Department Counsel and the Applicant. The transcript is no charge for the Applicant.

Determination by Administrative Judge

Typically, betwixt 4 and 8 weeks following the receipt of the hearing transcript, the final determination volition exist rendered. The security clearance holder will be asked to sign for receipt of the decision no affair who prevails inside vii days.  Appeals rights for the losing political party volition also be provided. At that place are curt deadlines for filing an entreatment.

Appeals of DOHA Decisions

If a client does not prevail, we usually practise non recommend filing an appeal. There is a short deadline in which to find an appeal of 15 days, and then a 45-day borderline (starting from receipt of the decision) in which to file the appellate brief.  In our experience, however,  a negative decision rarely gets overturned. It is better, in most cases, to salvage on costs, effort further mitigation during the year long wait and and so seek out reconsideration. For 2019, the DOHA Appeals Board issued approximately 174 decisions on appeal.  Of those:

a. Clearance Holder (Applicant) Loses: 151 (Applicant loses and appeals and loses on appeal)

b. Clearance Holder (Applicant) Wins: 10 remands for further review, 0 reversals

c. Department Counsel Appeals Favorable Decision and Wins: 9 wins, 1 remand for further review.

In a nutshell, of the 174 decisions, the Clearance Holder lost in approximately 164 case or and then depending on how y'all look at information technology. That is well-nigh a 94% loss rate. By contrast, putting together a solid case for mitigation after a year long expect has a much higher success rate. In other words, unless other factors come into play, we more often than not do not recommend appeals of agin administrative judge decisions at DOHA.

Reconsideration of Security Concerns

Typically, reconsideration of adverse DOHA decisions is the best option when an individual is issued an adverse conclusion by an administrative judge. The private has to wait a twelvemonth to re-use, merely they should be actively working to continue to mitigate the original security concerns during the one-twelvemonth period of time that they have to expect. The reconsideration process begins when the private seeks to apply for a new security clearance either through their original or a new sponsor.

Once the SF-86/due east-QIP is completed, a notification will be sent past the Vetting Risk Operations Center (VROC) request that the individual provide a written response about the original issues to DOHA along with exhibits, to demonstrate that they take successfully mitigated the original concerns. If granted, the clearance process, for the residuum of whatever issues, continues on just no longer focuses on the original security concerns.  The reconsideration process is key and should exist treated with great care. It is very important to explain how the individuals has changed since the initial decision, any other efforts at mitigation that have been undertaken and explain how the private has taken the administrative guess'south original findings to middle and changed their beliefs.

Conclusion

The security clearance procedure for clearance holders and/or applicants tin be a short or long procedure. If issues arise, the key to improving ane's chances of success is to hire counsel to correspond them in the clearance process. Our law firm advises individuals in the security clearance process. Nosotros can be contacted at world wide web.berrylegal.com or by telephone at (703) 668-0070. Additionally, our Facebook page is located here and our Twitter account is located here.

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Source: https://securityclearancelawyer.com/2019/12/02/how-to-respond-to-a-dod-caf-statement-of-reasons-in-security-clearance-case/

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