(1) What is the purpose of the hearing?
The purpose of the hearing is to provide you with an opportunity to respond to the DOE's questions concerning your eligibility to hold a security clearance (“security concerns”), as outlined in the Summary of Security Concerns attached to the Notification Letter. During the hearing, you will be able to present evidence to explain, refute or mitigate the derogatory information cited in the Summary of Security Concerns. After the hearing, the Administrative Judge will review the testimonial and documentary evidence in the record and issue a Decision which contains findings of fact and a determination whether or not to grant or restore your security clearance.
(2) Who is the Administrative Judge?
The Administrative Judge is a federal employee of the DOE’s Office of Hearings and Appeals, the quasi-judicial arm of the agency. The Administrative Judge is a licensed attorney who holds a DOE “Q” clearance. The Administrative Judge may be assisted by a staff attorney, a federal employee and licensed attorney in the DOE’s Office of Hearings and Appeals, who is being trained to be an Administrative Judge in the future.
(3) Who is the DOE Counsel?
The DOE Counsel is an attorney employed by the DOE (in either the NNSA or DOE’s Office of General Counsel or a local Office of Chief Counsel) who participates on behalf of and represents the DOE in this proceeding. DOE Counsel’s role is not to prevent you from getting a security clearance, rather it is to help the Administrative Judge create a complete record with all the relevant information both favorable and unfavorable.
(4) Do I need a lawyer?
It is your choice whether or not to retain a lawyer. If you cannot afford a lawyer, you may be able to retain a lawyer who will take the case pro bono (at no cost) or for a reduced fee. For example, a local legal aid office may be able to provide you with pro bono legal representation. Even if you do not retain a lawyer, a friend or a union representative can assist you with your case. The DOE Counsel and the Administrative Judge can answer questions you may have about the DOE's security concerns and the hearing procedures. However, while the DOE Counsel and the Administrative Judge may provide you some guidance, they do not represent you in this proceeding. Ultimately, it is your responsibility, or the responsibility of your counsel, to prepare and present your case.
(5) How do I go about hiring a lawyer?
You can ask a local bar association or a union representative for assistance in hiring a lawyer. If you are unable to afford a lawyer, you might consider asking the local bar association if it knows of a lawyer who would be willing to represent you for free or at a reduced cost.
(6) Where will the hearing take place?
Generally, hearings are conducted virtually using Microsoft Teams or other videoconferencing software. In such cases, the Administrative Judge will be physically located at their duty station, but they will be present at the hearing by audio and video connection. You and your witnesses may meet at one location, such as the office of your representative, but may also separately connect to the hearing in your own space, such as your home or a private office. If several witnesses are providing their testimony from the same location, they must each be able to give their testimony outside the hearing of the other witnesses. Sometimes, if just one or two witnesses are unable to use video teleconferencing, it may be possible to take their testimony via telephone. While this type of testimony is not preferred, it is better than not having the testimony of an important witness. You should discuss this possibility with the Administrative Judge.
(7) What will happen at the hearing?
Hearings are generally conducted as follows:
First, the Administrative Judge makes an opening statement introducing themself, explaining briefly the subject of the hearing and describing how the hearing will be conducted. Then, there will be an opportunity for the DOE Counsel to make an opening statement describing the position of the DOE in the case. Next, you or your representative will have the opportunity to present your opening statement, describing your view of the case.
Every witness will be sworn in by the Administrative Judge and provided a perjury admonition. After the witness is sworn in, the party that calls the witness will examine (question) them, and then the other party will have the chance to cross-examine that witness. If you are not represented by an attorney, DOE Counsel may offer to conduct the examination of your witnesses on your behalf. After this, each party may ask the witness follow-up questions. The Administrative Judge may also have questions for the witness.
After all witnesses have testified, each side may make a closing statement. The Administrative Judge will also give closing instructions, and then adjourn the hearing.
(8) How long will the hearing take?
Hearings are generally between three and five hours long. However, depending on the number of witnesses and issues, the hearing may last an entire work day, or may be extended to more than one day. During a pre-hearing conference call, you (or your representative), the DOE Counsel, and the Administrative Judge will discuss the order and length of the hearing, as well as proposed witnesses.
(9) Who will attend the hearing?
These hearings are not open to the public. You may be accompanied by an attorney or other representative of your choosing, such as a union official. Witnesses will usually be in the hearing room only during their own testimony, but the Administrative Judge, you, and the DOE Counsel will be present throughout the hearing. Sometimes, other attorneys from the Office of Hearings and Appeals may be present to observe and assist the Administrative Judge. In some cases, certain witnesses, such as a DOE-sponsored mental health professional, will be present for the entire hearing. You also may request that the Administrative Judge permit other individuals (such as your spouse, close friend or a counselor) to be present throughout the hearing. A court reporter will be at the hearing to record it and produce a transcript of the hearing.
(10) Will I be able to obtain a copy of the transcript of the hearing?
After the court reporter has completed the transcript, you or your representative will be provided with a copy of the transcript by the DOE free of charge. Copies of the transcript will also be given to the DOE Counsel and the Administrative Judge. This transcript will become part of the official record of the proceeding.
(11) What do I (or my counsel) need to do to prepare for the hearing?
You should think about what you want the Administrative Judge to know in order to refute or resolve the security concerns raised in the Notification Letter. You should then consider how to prove your claims, since it is your responsibility to convince the Administrative Judge that granting or restoring your security clearance will not endanger the common defense and security and is clearly consistent with the national interest. To that end, your witnesses could be critical in providing greater support for your claims. For example, if you have undergone an alcohol rehabilitation program, you might consider requesting that your treatment counselor testify about the program and your rehabilitation efforts. Documentary evidence, like proof you attended a treatment program, may also be helpful.
(12) How do I deal with witnesses?
You should prepare questions to ask each witness. The answers to those questions should address the background of the witness, their relationship to you, their familiarity with the issues related to the hearing, and the specific testimony that you want the Administrative Judge to consider. Talk to your witnesses before the hearing and explain the issues in the case. You should prepare them for the types of questions that they will likely be asked either by you or your representative and the DOE Counsel. Be aware that your witnesses will likely learn the details of the DOE's case, and that these details may well include information that you consider private. As noted above, DOE Counsel may offer to question your witnesses on your behalf.
(13) Will I be able to question the DOE's witnesses?
Yes. You may question the DOE's witnesses, as well as your own witnesses. You should ask the witnesses questions that will bring out information that you think the Administrative Judge should know, as their responses will be part of the transcript that will be read and considered by the Administrative Judge.
(14) How will I know who the DOE's witnesses are?
Prior to the hearing, the DOE Counsel will provide you and the Administrative Judge with a list of witnesses, and state what the witnesses will testify about. You will also be asked to submit a list of your witnesses to the Administrative Judge and the DOE Counsel and state the general nature of their testimony. The scope of witness testimony will also be discussed during the pre-hearing conference.
(15) Will the DOE Counsel give me any other information that he/she is planning to rely on?
Yes. The DOE Counsel will give you and the Administrative Judge the documents that he or she will rely on to support the allegations at issue. Read them very carefully. Depending on what is relevant in your case, the evidence may include documents such as police reports, psychiatric evaluation, any agreement signed by you not to use illegal drugs, a credit report, and/or evidence showing a positive test for drugs or alcohol. Be sure you understand this material and ask the DOE Counsel to explain it to you prior to the hearing if you have any questions.
(16) Should I also give the Administrative Judge written evidence?
You should submit documents that will help you rebut or resolve the security concerns specified in the Summary of Security Concerns. For example, if the issue under consideration is problematic alcohol consumption, you may wish to furnish copies of recent negative laboratory tests that you had, attendance sheets from a 12-step program you have attended, or letters from your alcohol counseling program discussing the progress you made. You must furnish the DOE Counsel with a copy of any documents you submit to the Administrative Judge.
(17) What can I read to help me prepare for the hearing?
First, you should carefully read and fully understand the DOE Notification Letter. This letter states the DOE's security concerns and the information that raises those concerns. Make sure you also understand all the material provided to you by the DOE Counsel. This material will include the documents that the DOE relied upon in deciding that there are unresolved questions as to your eligibility to hold a security clearance.
You should also read the regulations that govern these hearings, found at Part 710 of Title 10 of the Code of Federal Regulations, as well as the National Security Adjudicative Guidelines. You should have received a copy of these with the Notification Letter. The various types of security concerns are listed in the Adjudicative Guidelines, along with examples of factors that may help resolve the security concerns in your case. The Administrative Judge will also rely on Section 710.7(c) in considering whether an employee has overcome security concerns. If you need a copy of the regulations, the DOE Counsel will be able to provide you with one. A copy of the regulations is also available on the Office of Hearings and Appeals website.
You may also read the Decisions that have been issued in other DOE personnel security cases.
(18) Can I privately discuss the substance of my case with the Administrative Judge before the Hearing?
No. The Administrative Judge cannot speak to you privately about the substance of your case, nor can they speak to the DOE Counsel about the substance of your case without your participation. Any discussion about the substance of your case with the Administrative Judge must include both you and the DOE Counsel. The Administrative Judge can talk to you and the DOE Counsel each privately about procedural issues, such as scheduling or witnesses. The Administrative Judge can also generally explain to you how to prepare a case or what has been done in previous cases. Discussions about the substance of your case can also be conducted in writing, with a copy to all parties. You are free to discuss the substance of your case individually with the DOE Counsel, without the participation of the Administrative Judge.
(19) Is there any way that the Administrative Judge, the DOE Counsel, and I can all talk about the particular issues in my case before the hearing?
Yes. There will be a prehearing telephone conference that will include you (and/or your representative), the DOE Counsel, and the Administrative Judge. This call will take place at least a week before the hearing and will likely be arranged as a three-way video call. During this call, you and the DOE Counsel will discuss the issues that will be raised at the hearing, the witnesses, what they will testify about, and the order in which they should be called. The Administrative Judge may also explain what they think the main security concerns in your case are. During the prehearing conference, you, the DOE Counsel and the Administrative Judge will create a reasonable schedule for calling the witnesses, in order to suit the convenience of the witnesses and the parties. This call is also important for ensuring that you understand how the video call program works and are able to use it during the hearing.
(20) Will there be other opportunities for me to talk with both the Administrative Judge and the DOE Counsel?
Yes. The Administrative Judge may also schedule other conference calls if it would be useful. If you would like an additional conference call, suggest it to your Administrative Judge, explaining what purpose it would serve.
(21) Where can I find examples of Administrative Judges' Decisions?
Administrative Judges' Decisions can be accessed through the Office of Hearings and Appeals' website, located at energy.gov/oha.
(22) Why do I have the burden of mitigating the security concerns raised by the derogatory information in the Summary of Security Concerns?
Holding a security clearance is a privilege, not a right. Because the national security is at stake, once the DOE has established that a security concern exists, the burden is on you to bring forth evidence to mitigate the concerns raised by the local security office. Thus, unlike in criminal proceedings, where the charges must be proven beyond a reasonable doubt, in these proceedings, you may have your clearance granted or restored only by resolving any doubts raised by the DOE’s security concerns.
(23) In general, what do I need to show?
Your obligation is to show that you are not a security risk, either by establishing that the DOE's allegations about you in the Notification Letter are untrue, or by resolving the concerns that those allegations raise. For example, if the DOE's concern is that you have an alcohol use disorder, you could present documents and/or testimony showing that you do not have an alcohol use disorder, or by showing that you have been rehabilitated (such as through a counseling program and/or through a sufficient period of abstinence). If you demonstrate sufficient rehabilitation, the Administrative Judge might conclude that the security concern about alcohol use disorder has been resolved. You may review examples of conditions that can raise security concerns and how those concerns may be mitigated (resolved) by reviewing the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information located at Click Here.
(24) Do I have to present witnesses to support my case? Isn't my own sworn testimony good enough?
As stated above, your obligation is to resolve any doubts about your eligibility to hold a security clearance. You will most likely address the security concerns in your own testimony. However, you may provide additional support for your position by having other people testify or by submitting documents into the record. Note that when weighing the evidence, Administrative Judges generally give more weight to witness testimony that is subject to cross-examination than letters of support.
(25) Do I get an answer at the hearing?
No. The Administrative Judge will carefully consider all the facts and arguments presented at the hearing. The Administrative Judge will issue a written Decision, generally within 30 days after receiving the transcript or the closing of the record, whichever comes later. The Decision will set forth the Administrative Judge’s determination as to whether to grant or restore your clearance and the reasons for that determination. The local security office will provide a copy of the Decision to you.
(26) What if I don't agree with the Administrative Judge's Decision?
There is an opportunity for a review of that Decision. That review is performed by an "Appeal Panel," made up of three members. A more detailed description of the appeal process can be found at 10 C.F.R. §§ 710.28 and 710.29. Bear in mind that, if the Administrative Judge finds in your favor, the DOE may also ask for a review.
(27) Whom do I contact with my questions?
If you have general questions about the answers presented above, please call your Administrative Judge at the telephone number or email address listed in their letter to you.
If you have any comments or suggestions for improving these Questions and Answers, please contact the Office of Hearings and Appeals at telephone number (202) 287-1566 or email address OHA.Filings@hq.doe.gov. In all communications not submitted anonymously, please be sure to include a telephone number or email address where you can be reached, if we need to discuss your comments with you.
Last updated October 23, 2024.