Enclosed with the Statement of Reasons (SOR) informing a defense contractor of why their security clearance may be denied or revoked is a one-page document. This document starts with the words, “Please Complete This Attachment And Return With Your SOR Response” and offers the following choices:
|I am requesting (initial one of the following choices):
_________In-person at a location within 150 miles of your home or workplace, or by video teleconference (VTC) hearing before an Administrative Judge;
_________A decision based on the administrative (written) record, without a hearing before an Administrative Judge. . . .
This doesn’t mean you’ll be able to participate in a VTC hearing using Skype™ from your notebook computer on your kitchen table. Non-professional grade VTC equipment often lacks the audio/visual quality and security needed for a VTC hearing. Your employer’s VTC facility is also not generally suitable because of privacy concerns. VTC hardware, software, and bandwidth; room configuration, lighting, and sound attenuation; and confidentiality are all important factors in affording an applicant a hearing as required by DoD Directive 5220.6. Interruptions in VTC transmissions can invalidate a hearing and result in second hearing (see ISCR Case No. 11-09056). Poor VTC quality can also adversely affect the ability of an Administrative Judge (AJ) to make a meaningful credibility assessment of an applicant, which is an important aspect of most hearings.
The Defense Office of Hearings And Appeals (DOHA) has held hundreds of VTC hearings since 2004, and they currently conduct a significant percentage of hearings by VTC. Technical problems rarely occur during DOHA VTC hearings, but when they do, they might necessitate a short delay or the rescheduling of a hearing for a later date. As stated in the 2015 “Best Practices for Using Video Teleconferencing for Hearings,” issued by the Administrative Conference of the United States (ACUS):
“Adjudicative hearings must be conducted in a manner consistent with due process and the core values of fairness, efficiency, and participant satisfaction. . . . When VTC is used, it should be used in a manner that promotes these principals.”
The ACUS, “Handbook on Best Practices for Using Video Teleconferencing in Adjudicatory Hearings,” explains that:
The term ‘video conference’ [or video teleconference] refers to the use of video and audio transmission devices which allow people in different physical locations to communicate by seeing and hearing each other. Since people communicate through their facial expressions and body language as well as through their words, video conferencing gives the user the ability to interact with another just as they would in person, while also taking advantage of the benefits of remote communication.
DOHA has contributed to ACUS studies related to VTC hearings and subscribes to the policies and methodologies recommended in their publications.
In-Person vs. VTC: Understanding the Criteria
The vast majority of DOHA hearings are conducted in-person. To understand how and under what circumstances VTC hearings are held, it’s necessary to understand where in-person hearings are held.
Normally in-person hearings are held at federal buildings in large cities or at military bases within 150 miles of where the applicant lives or works. Regardless of where you live or work, you can request that your in-person hearing be held at one of four locations (Arlington, VA; Boston, MA; Chicago, IL; and Woodland Hills, CA) where DOHA has personnel permanently assigned. (DOHA also currently has personnel in San Diego, CA and Seattle, WA.)
In order for DOHA to hold an in-person hearing somewhere other than one of their four locations, they must accumulate enough cases in that area to warrant the time and expense of a DOHA AJ and a DOHA attorney, known as a Department Counsel (DC), to travel there. If DOHA doesn’t conduct many hearings in your area, your in-person hearing could be delayed for a few months until they have enough cases to go there. If travel to your area is difficult or cost prohibitive, DOHA may choose to convene your hearing by VTC.
How a VTC Hearing is Conducted
So, where and how is a VTC hearing conducted? If you’re in an area where a VTC hearing would be a more efficient and cost effective way to convene a hearing, DOHA will arrange for you to use a VTC facility at a U.S. Government office or military base within 150 miles of where you live or work. Ideally a DOHA AJ or DC will be with you at the facility, and the other DOHA official will participate by VTC from another location. Since only one DOHA official will have to travel to your area, fewer hearings in the same area are needed to justify a trip and your hearing can be scheduled for an earlier date. It is possible in some circumstances that the AJ and DC would be in one location and you would be in a different location. As with in-person hearings, you and your witnesses are responsible for your own travel expenses to the VTC facility.
Usually one to three months after you submit your SOR response, a DOHA DC will contact you and advise you of the next available hearing date in your area. The DC may suggest a VTC hearing, if it would significantly reduce the amount of time you would have to wait for an in-person hearing; however, a VTC hearing may be required if you’re in a remote area. If you don’t want a VTC hearing and you’re willing to travel more than 150 miles to where an in-person hearing can be held, DOHA will try to accommodate you. Your only other option is a decision by a DOHA AJ based on the administrative (written) record without a hearing.
If you are located outside the United States, your hearing probably will be not be held until you return to the U.S. on other business or on leave. It’s possible to have a VTC hearing conducted from an overseas U.S. government facility, but there are limitations on the overseas locations and types of cases that can be held by VTC. It’s also possible to conduct a VTC hearing with participants in more than two locations, but as a practical matter more than two locations are rarely needed. If you choose to be represented by at the hearing by an attorney or personal representative, he/she will have to be at the same location with you.
A VTC hearing will follow the same procedures as an in-person hearing, except when you are not at the same location as the AJ, you will need to send hard copies of any pleading, proposed documentary evidence, or other written communication to the AJ prior to the hearing. The DOHA Hearing Office will coordinate this with you well in advance of the hearing. You will need to provide these same documents to the DC prior to the hearing, but they can be sent to the DC by fax or email. As with an in-person hearing, the AJ will not announce a decision at the conclusion of the VTC hearing. The AJ will issue a written decision sometime after he/she receives the hearing transcript.
DOHA can also conduct “Personal Appearance” appeal hearings for DoD civilian and military personnel by VTC.
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