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Personal Appearance Guidance |
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MEMORANDUM FOR ALL APPELLANTS AND THEIR
RESPECTIVE ATTORNEYS OR PERSONAL REPRESENTATIVES IN PERSONAL APPEARANCES
SUBJECT: Prehearing
Guidance for Your Personal Appearance
This set of questions
and answers is provided to help Appellants and their Attorneys or Personal
Representatives to prepare for the Personal Appearance which was requested
before a Defense Office of Hearings and Appeals (DOHA) Administrative
Judge. The guidance is not exhaustive,
and merely implements Department of Defense Regulation 5200.2-R, Personnel
Security Program Regulation, as amended by Change 3, dated November 1,
1995. Appendix 8 of the Regulation was
amended by Memorandum dated August 30, 2006, effective for all Statements of
Reasons issued on or after September 1, 2006, with the implementation of Revised
Adjudicative Guidelines For Determining Eligibility For Access To Classified
Information.
For those individuals
whose eligibility for access to Sensitive Compartmented Information (SCI) is in
issue, the same Revised Adjudicative Guidelines became effective July
12, 2006, when Annex C to Director of Central Intelligence Directive 6/4,
Personnel Security Standards And Procedures Governing Eligibility For Access To
Sensitive Compartmented Information (SCI), was modified.
1. What
are the steps of the proceeding? An
Administrative Judge will preside at your personal appearance and will follow the
standard order of procedure described below.
The proceeding will be conducted so that it can be understood by a
person with no legal training. It will
begin with the Administrative Judge introducing him or herself and then asking
the person who asked for the personal appearance, referred to as the Appellant,
to identify himself or herself. The Government=s attorney, who
is called a Department Counsel, will be asked to introduce him or herself; if
one is present. The Administrative Judge
will then ask if there are any procedural questions that need to be answered.
The
Administrative Judge has already been provided with the case file containing
the documents that the Central Adjudication Facility (CAF) considered in making
its adverse decision. You will then be
asked to submit documents one at a time for the Administrative Judge to
identify and consider which were not already provided to the CAF.
You or your
representative will be asked to question any witness whom you asked to come to
the proceeding on your behalf who may then be questioned by Department Counsel,
if one is present, or the Administrative Judge. You will be asked to give your own oral
testimony relevant to resolution of the case or have your representative ask
you questions to get this information on the record. The Administrative Judge and a Department
Counsel, if one is present, may also ask you questions.
At the
appropriate point in the proceeding, as determined by the Administrative Judge,
the Administrative Judge will ask the Department Counsel, if one is present, to
question any witness for the Government. The Department Counsel may have
asked a witness to be present to provide testimony as to why you should be
denied eligibility for access to classified information, SCI, or performance of
sensitive duties. If such a witness testifies, you will then have an
opportunity for you or your representative to question the witness.
At the end of
the proceeding you or your representative will have an opportunity to sum up
why it is clearly consistent with the national security for you to be eligible
for access to classified information, SCI, or the performance of sensitive
duties, and finally the Department Counsel, if one is present, will have the
opportunity to summarize the opposite point of view.
2. Where
will the proceeding be conducted? The personal appearance may be conducted in a
hearing room, conference room, court room, or video teleconference center,
depending on the availability of suitable facilities. Appellants can expect the
personal appearance to be held at a facility at or near their duty station, the
nearest metropolitan area, or at
3. Will
the Government be represented by an attorney at the proceeding? Aside from the person you may invite to
assist or represent you during your personal appearance, the Administrative
Judge assigned to your case generally will be the only other Government
employee present. He or she will be
impartial and objective in evaluating the facts set forth in the record of the
case supplied to him or her by your CAF as supplemented by what you say at the
proceeding, what other witnesses, if any, have to say, and whatever additional
documentation is presented by you or other witnesses, if any.
However, the
Government may elect to have a Department Counsel participate in the proceeding
on its behalf. If a Department Counsel
attends, it will be his or her responsibility to present the testimony of any
witness asked by the Department Counsel to attend the proceeding in order to
support any reasons set forth by the CAF supporting denial or revocation of
your security clearance. It is also the Department
Counsel=s responsibility, if he or she elects to attend, to
ask questions of you and any witness whom you may elect to bring to the
proceeding.
4. Do
I need to hire an attorney? You can
prepare for, and appear at, the personal appearance by yourself. The proceeding is designed so that it can be
understood and used by all Department of Defense civilian employees and members
of the Military Departments. Many appear
personally and are successful without any assistance. However, any adult of your choosing such as a
co-worker, supervisor, friend, spouse, colleague, union representative or
member of the clergy may assist you if you arrange for it, or you may hire an
attorney at your own expense. If you
want to be represented by an attorney or anyone else, you must arrange for it
immediately. Postponement of the
personal appearance can be granted by the Administrative Judge only for good
cause, and delay in finding an attorney or other representative is
generally not a good reason to delay a scheduled personal appearance.
5. What
should I do to prepare for my personal appearance? The personal appearance is your opportunity
to provide oral comments and documents demonstrating that your eligibility for
access to classified information, SCI, or performance of sensitive duties
should be granted or reinstated. The
Administrative Judge presiding at your personal appearance will have already
reviewed your case file which was provided to him or her by the CAF that made
the decision to deny or revoke your eligibility for access to classified information
or performance of sensitive duties.
Therefore, your goal should be to explain your reasons for having the
CAF=s decision reversed by providing additional
information and documentation rather than only repeating information which you
had previously submitted. You may also elect to bring a person or
persons to the proceeding to provide testimony as to why you should be granted
a security clearance but are not required to do so and may choose to submit a
letter or affidavit from them as explained in paragraph 6 below.
Make sure that your documents are organized
in the order that you want to present them and bring an extra copy of the
documents so that you can refer to them if needed to answer questions that may
be directed to you by your representative, the Department Counsel, if one
elects to be present, or the Administrative Judge. If your personal appearance is conducted by
video teleconference, copies of your new documents should be forwarded to the
Administrative Judge at least 24 hours in advance of your personal
appearance. The facsimile number and
mailing address for the particular office handling the matter appears at the
top of this memorandum.
6. Must
I or the Government bring people to the proceeding so they can testify? If you want the Administrative Judge to
consider what other people, such as supervisors, co-workers, family, friends,
neighbors, doctors or other experts, have to say about your eligibility for
access to classified information, SCI, or performance of sensitive duties, you may bring
them to the personal appearance so they can testify in person in response to
questions you ask them and questions asked them by a Department counsel, if one
is present, and the Administrative Judge; or you may obtain their
comments in writing for submission to the Administrative Judge at the
proceeding. Usually a signed and dated
letter is sufficient, but more weight can be given to statements that are in the
form of a notarized affidavit or otherwise attested to as being true.
If you elect to bring witnesses to the proceeding, it is your
responsibility to have them there at the outset of the proceeding as generally
it will not be delayed because of the absence of a witness. You should also expect that the
Administrative Judge will limit testimony to comments that are relevant and
material to resolution of your case and limit the number of people allowed to
testify so that information presented is not cumulative or redundant. If you experience difficulty obtaining the
timely presence of witnesses that you would like to be present, you may contact
the Administrative Judge and ask for assistance. He or she may, in turn, ask a Department
Counsel to assist you to obtain the witness.
But the Government has no subpoena power in these proceedings and
Department Counsel has no obligation to provide the requested assistance in
obtaining witnesses. Any election by Department Counsel to assist
with facilitating the appearance of a witness does not create a right to a
witness or a right to any delay.
7. Will the proceeding be
delayed or postponed if a witness cannot be present at the scheduled place,
date and time for the proceeding? If you have elected to have anyone appear on
your behalf as a witness, it is your obligation to have that person present and
ready to testify at the proceeding on the day and time is has been
scheduled. The proceeding will generally
not be delayed because of a missing witness, regardless of the reason. You will instead generally be given an
opportunity to supplement the record with a written statement from the absent
witness.
8. Will
I be questioned at the personal appearance? You may be questioned by your representative. You also may be questioned by the
Administrative Judge if he or she wants clarification of information that is
part of the record. You may also be
cross-examined by a Department counsel, if one is present. It is Department Counsel=s job to ask
questions that test the truthfulness of your testimony and he or she may do
this in part by asking you questions based on information in the records that
you submit or that are part of the case record that the CAF considered which
has already been provided to the Administrative Judge. You should be prepared to answer any question clearly, completely, and honestly.
You will be advised by the Administrative Judge that Section 1001 of Title 18
of the United States Code is applicable which makes it a criminal offense,
punishable by a substantial fine and period of imprisonment, to knowingly and
willfully make a false or misleading statement or representation to any
department or agency of the
9. Will
the personal appearance be transcribed?
The proceeding will be recorded by a court reporter. He or she will provide the Administrative Judge
with a verbatim transcript and you will be given a copy.
10. Will
there be formal rules of evidence that I must understand and comply with? The only requirement to admit information
into the record is that it must be relevant and material to the issues
affecting your eligibility for a security clearance, SCI, or performance of
sensitive duties and not unduly repetitive of information that is already part
of the record.
11. What
documents may I submit? You may submit any documents that you believe
should be considered by the Administrative Judge and ultimately by your
component=s Personnel Security Appeal Board (PSAB).
The information can involve refutation, explanation, extenuation, or mitigation
of the reasons provided to you in the Letter of Denial issued by your CAF as to
why your security clearance or eligibility to perform sensitive duties should
be denied or revoked. The only
limitation is that the materials must be relevant and material to
the concerns as to why your eligibility for security clearance, SCI, or
performance of sensitive duties should be denied or revoked, and should not be
unduly repetitive of information that is already part of the record.
12. What
is the function of the Administrative Judge who will preside at my personal
appearance? The Administrative Judge
did not participate in the CAF=s decision to deny or revoke your
eligibility for access to classified information, SCI, or performance of
sensitive duties. He or she is at the
personal appearance to give you a fair opportunity to present your case as
fully as possible.
13. Will
the Administrative Judge make the final decision as to whether my eligibility
for a security clearance or performance of sensitive duties should be denied or
revoked? The Administrative Judge
will prepare a recommended decision and forward it along with the record of
your case to your component=s PSAB.
The Administrative Judge will not announce his or her recommended
decision to the Appellant at the end of the personal appearance. The PSAB may adopt the recommended decision,
or reverse or otherwise modify the Administrative Judge=s recommendation.
14. What
is the Arecord@ of my case? The record in your case will consist of all of
the information already considered by the CAF when it determined to deny or revoke
your eligibility for access to classified information, SCI, or performance of
sensitive duties, plus the verbatim transcript of the personal appearance, and
any additional documentation which you submit at the personal appearance.
15. What
regulations will the Administrative Judge consider? The Administrative Judge will consider the adjudicative
guidelines, as amended, found in Department
of Defense Regulation 5200.2-R, Personnel Security Program Regulation,
as amended by Change 3, dated November 1, 1995.
Appendix 8 of the Regulation was amended by Memorandum dated August 30,
2006, effective for all Statements of Reasons issued on or after September 1,
2006, with the implementation of the Revised Adjudicative Guidelines For
Determining Eligibility For Access To Classified Information. In other words, the Administrative Judge will
use the adjudicative guidelines
which were in effect when the CAF issued the Statement of Reasons giving you
notice that it determined that it should deny or revoke your eligibility for
access to classified information, SCI, or performance of sensitive duties. Furthermore, as indicated above, if your eligibility for access SCI is in
issue, the provisions of Director of Central Intelligence Directive 6/4,
Personnel Security Standards And Procedures Governing Eligibility For Access To
Sensitive Compartmented Information (SCI), as modified by Intelligence
Community Directives and Policy Memoranda, will also apply. The Revised Adjudicative Guidelines For
Determining Eligibility For Access To Classified Information can be found on the
16. What
will happen if I do not come to my personal appearance? It is your responsibility to attend the
personal appearance at the agreed date and time and at the location designated
in the notice sent to you with these questions and answers. It is also your responsibility to request the
Administrative Judge for a postponement or change of location which may be granted
by the Administrative Judge only if you present him or her with reasons
sufficient to demonstrate that you have been diligent and that there are good
reasons for your request. If you have
not been granted a postponement and fail to appear on the day and time and at
the place designated by the Administrative Judge, he or she will so advise your
component=s PSAB with a recommendation that it sustain
the CAF=s determination to deny or revoke your
eligibility for access to classified information, SCI, or performance of
sensitive duties.
Robert Robinson Gales
Chief
Administrative Judge
December 12, 2007