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(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 Statement of Charges 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 Statement of Charges. After the hearing, the Hearing Officer 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 Hearing Officer?
The Hearing Officer is a federal employee of the DOE’s Office of Hearings and Appeals, the quasi-judicial arm of the agency. The Hearing Officer is a licensed attorney who holds a DOE “Q” clearance.
(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.
(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 Hearing Officer can answer questions about the DOE's security concerns and the hearing procedures. However, while the DOE Counsel and the Hearing Officer 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, the Hearing Office will conduct the hearing by videoteleconference (VTC). In such cases, the Hearing Officer will be physically located at OHA’s Offices in Washington, D.C., but will be present at the hearing by audio and video connection. You and your witnesses will meet at the facility where you work or at a nearby location, such as the office of the court reporter who will transcribe the proceedings. However, sometimes a more distant location is more appropriate. For example, if most of the witnesses are not located near the facility, it may be more efficient to hold the hearing where most of the witnesses are located. If you believe that the hearing should be held at a location other than at or near the facility where you work, you should discuss this matter with the Hearing Officer and the DOE Counsel. Sometimes, if just one or two witnesses are unable to be present at the hearing site, 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 who cannot be present at the hearing site. You should discuss this possibility with the Hearing Officer.
(7) What will happen at the hearing?
Hearings are generally conducted as follows:
First, the Hearing Officer makes an opening statement introducing himself/herself, 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 Hearing Officer and provided a perjury admonition. After the witness is sworn in, the party that calls the witness will examine (question) him/her, and then the other party will have the chance to cross-examine that witness. After this, each party may ask the witness follow-up questions. The Hearing Officer may also have questions for the witness.
After all witnesses have testified, each side may make a closing statement. The Hearing Officer 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 telephone conference call, you (or your representative), the DOE Counsel and the Hearing Officer 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 Hearing Officer, you and the DOE Counsel will be present throughout the hearing. 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 Hearing Officer 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 Hearing Officer. 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 Hearing Officer to know in order to refute or rebut 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 Hearing Officer 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 submitting documents from the treatment program and requesting that your treatment counselor testify about the program and your rehabilitation efforts.
(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, his or her relationship to you, his or her familiarity with the issues related to the hearing, and the specific testimony that you want the Hearing Officer 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.
(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 Hearing Officer should know, as their responses will be part of the transcript that will be read and considered by the Hearing Officer.
(14) How will I know who the DOE's witnesses are?
Prior to the hearing, the DOE Counsel will provide you and the Hearing Officer 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 Hearing Officer 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. (see Question 19 below.).
(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 Hearing Officer 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 is likely to include documents such as a transcript of your interview with the personnel security specialist, police reports, psychiatric evaluation, any agreement signed by you not to use illegal drugs, 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 Hearing Officer written evidence?
You should submit documents that will help you rebut or refute the security concerns specified in the Notification Letter. For example, if the issue under consideration is whether you are alcohol dependent, 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 Hearing Officer.
(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 to suspend or not grant your clearance.
You should also read the regulations that govern these hearings. You should have received a copy of these regulations with the letter notifying you that your clearance has been suspended or not granted. They are found at Part 710 of Chapter 10 of the Code of Federal Regulations. The various types of security concerns are listed in Section 710.8. The Hearing Officer will 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 OHA website. (See Question 21 below.) You should also review the Revised Adjudicative Guidelines for examples of factors that may help resolve the security concerns in your case. (See Question 23 below.)
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 Hearing Officer before the Hearing?
No. The Hearing Officer cannot speak to you privately about the substance of your case, nor can he/she speak to the DOE Counsel about the substance of your case without your participation. Any discussion about the substance of your case with the Hearing Officer must include both you and the DOE Counsel. The Hearing Officer can talk to you and the DOE Counsel privately about procedural issues, such as scheduling or witnesses. The Hearing Officer 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 Hearing Officer.
(19) Is there any way that the Hearing Officer, 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 Hearing Officer. This call will take place at least a week before the hearing and will likely be arranged as a three-way conference 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 Hearing Officer may also explain what he or she thinks the main security concerns in your case are. During the prehearing telephone conference, you, the DOE Counsel and the Hearing Officer will create a reasonable schedule for calling the witnesses, in order to suit the convenience of the witnesses and the parties.
(20) Will there be other opportunities for me to talk with both the Hearing Officer and the DOE Counsel?
Yes. The Hearing Officer may also schedule other conference calls if it would be useful. If you would like an additional conference call, suggest it to your Hearing Officer, explaining what purpose it would serve.
(21) Where can I find examples of Hearing Officers' Decisions?
Hearing Officers' Decisions can be accessed through the Office of Hearings and Appeals' website, located at http://www.energy.gov/oha. A search function is also available.
(22) Why do I have the burden of mitigating the security concerns raised by the derogatory information in the Statement of Charges?
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 raises 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 are alcohol dependent, you could present documents and/or testimony showing that you are not alcohol dependent, 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 Hearing Officer might conclude that the security concern about alcohol dependency 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 Revised Adjudicative Guidelines for Determining Eligibility for Access to Classified Information located at http://energy.gov/oha/downloads/adjudicative-guidelines-determining-eligibility-access-classified-information.
(24) What do I have to do to show rehabilitation in cases involving mental health, alcohol or illegal drug use?
Whether you have shown that you are rehabilitated will depend on the specific facts in your case. Where the report of a mental health professional has recommendations for rehabilitation, you should address that professional opinion at the hearing. You may find it useful to read past Hearing Officer Decisions on the issue of rehabilitation in cases similar to yours.
(25) If I have been through a rehabilitation program recommended by my employer, isn't that enough to mitigate the security concern and for me to get my clearance back?
Not necessarily. The Hearing Officer will listen to your evidence about rehabilitation, including the type of program you attended or other efforts you made, the length of time you have been in rehabilitation, and the outcome of the program, if it is concluded. The Hearing Officer will consider all of these factors, as well as the nature of the DOE's security concerns, and then render an opinion as to whether the DOE's security concerns have been resolved.
(26) Is rehabilitation the only way to respond to the DOE's concern in cases involving mental health, alcohol or illegal drug use?
There are other ways besides rehabilitation to respond to the DOE's security concerns in cases involving mental health, alcohol or illegal drug use. If, for example, the DOE's area of concern is that you tested positive for use of illegal drugs, you might show that there were legitimate reasons for that positive drug test. You might also bring in information to demonstrate that any drugs you take have been prescribed by a doctor. Or, if the DOE claims that you have a mental illness that causes a defect in your judgment, you could present testimony from your own medical expert that you do not have such an illness, or that the symptoms of any illness are well-controlled.
(27) 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, Hearing Officers generally give more weight to witness testimony that is subject to cross-examination than letters of support.
(28) Do I get an answer at the hearing?
No. The Hearing Officer will carefully consider all the facts and arguments presented at the hearing. The Hearing Officer 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 Hearing Officer’s determination as to whether to grant or restore your clearance and the reasons for that determination. The local security office will mail a copy of the Decision to you.
(29) What if I don't agree with the Hearing Officer'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 Hearing Officer finds in your favor, the DOE may also ask for a review.
(30) Whom do I contact with my questions?
If you have general questions about the answers presented above, please call your Hearing Officer at the telephone number listed in his or her letter to you.
If you have any comments or suggestions for improving these Questions and Answers, please contact Ann Augustyn, Office of Hearings and Appeals, at telephone number (202) 287-1525. You may also write a letter addressed to:
Office of Hearings and Appeals
HG-1/ L’Enfant Plaza Building
Department of Energy
1000 Independence Ave., S.W.
Washington, D.C. 20585-01615
You can also fax your comments to the Office of Hearings and Appeals at (202) 287-1415. In all communications not submitted anonymously, please be sure to include a telephone number where you can be reached, if we need to discuss your comments with you.
Last updated July 2, 2013.