PRINTER FRIENDLY VERSION

Note: Anyone using these Questions and Answers should keep in mind that they are intended as general guidance only. The information contained in this pamphlet will tell you in a general way about what the hearing is like, what your role in the hearing is and what types of things you should consider in preparing for a hearing. This information should not be considered as legal advice. In the unlikely event of a conflict between the information contained in this pamphlet and DOE Regulations, the Regulations control. For more specific information about your own case, you should ask the DOE Counsel and your Hearing Officer, or consult your own attorney.

QUESTIONS AND ANSWERS CONCERNING DEPARTMENT OF ENERGY PERSONNEL SECURITY HEARINGS UNDER 10 C.F.R. PART 710

The following is a list of the questions answered below:

1. What is the purpose of the hearing?

2. Who is the Hearing Officer?

3. Who is the DOE Counsel?

4. Do I need a lawyer?

5. How do I go about finding a lawyer?

6. Where will the hearing take place?

7. What will happen at the hearing?

8. How long will the hearing take?

9. Who will attend the hearing?

10. Will I be able to obtain a copy of the transcript of the hearing?

11. What do I (or my counsel) need to do to prepare for the hearing?

12. How do I deal with witnesses?

13. Will I be able to question the DOE's witnesses?

14. How will I know who the DOE's witnesses are?

15. Will the DOE Counsel give me any information that he/she is planning to use?

16. Should I also give the Hearing Officer written evidence?

17. What can I read to help me prepare for the hearing?

18. Can I get an opinion from the Hearing Officer about the merits of my case before the Hearing?

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?

20. Will there be other opportunities for me to talk with both the Hearing Officer and the DOE Counsel?

21. Where can I find examples of Hearing Officers' Opinions?

22. Why do I have to bring in support to keep my clearance? Isn't it the DOE's job to prove me guilty?

23. Do I have to testify?

24. In general, what do I need to show?

25. What do I have to do to show rehabilitation?

26. 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?

27. Is rehabilitation the only way to respond to the DOE's concern?

28. Do I have to present witnesses to support my case? Isn't my own sworn testimony good enough?

29. Do I get an answer at the hearing?

30. What if I don't agree with the Hearing Officer's Decision?

31. Whom do I contact with my questions?

Questions and Answers

(1) What is the purpose of the hearing?

The DOE has notified you by letter (called a Notification Letter) that it has learned some information about you which it believes creates a concern as to whether you should continue to have a security clearance or should be granted a security clearance. The purpose of the hearing is to allow you the chance to respond to the DOE's concerns, as they are outlined in the letter. The hearing gives you an opportunity to personally present your side of this situation to a Hearing Officer. The hearing will usually be held 60 to 90 days after the OHA receives notice of your request for a hearing. Go to List

(2) Who is the Hearing Officer?

The Hearing Officer is an employee of the DOE, but he/she is not part of the DOE's Office of Safeguards and Security. The Hearing Officer works for the DOE's Office of Hearings and Appeals, a separate organization. Go to List

(3) Who is the DOE Counsel?

The DOE Counsel is an attorney who presents the case on behalf of the DOE in this proceeding. Go to List

(4) Do I need a lawyer?

You are not required to have one, but a lawyer may be able to make a stronger case for you. If you can't afford a lawyer, you might see if there is a local lawyer who will take the case for free, or if there is a legal aid office in your area that will provide a lawyer. You may have a friend or union representative who can give you some advice. Also, the DOE Counsel and the Hearing Officer can answer questions about the DOE's security concerns and the hearing procedures. However, be aware that while the DOE Counsel and the Hearing Officer can give you some guidance, they do not "represent" you in this matter. Ultimately, it is your responsibility to prepare and present your case. Go to List

(5) How do I go about finding a lawyer?

You can ask a local bar association or a union representative for a suggestion. 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 "pro bono" (i.e., at no cost). Go to List

(6) Where will the hearing take place?

Hearings will normally be held at the facility where you work, or at a nearby location such as the office of the court reporter who will transcribe the proceeding. 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 my 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 might not be able to be present at the hearing site. You should also be sure to discuss this possibility with the Hearing Officer. Go to List

(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 run. Then, there is an opportunity for the DOE Counsel to make an opening statement describing the position of the DOE Office of Safeguards and Security in the case. Next, you or your representative will have the opportunity to present your opening statement, describing your view of what the case involves.

After this, there is the opportunity to question witnesses. Each witness will be sworn in by the Hearing Officer. After the swearing in takes place, the party that calls a witness will "examine" (question) him/her and afterwards the other party will have the chance to "cross examine" that witness. There is also the chance for follow-up questions by each side.

After all witnesses have testified, each side may give a closing statement. The Hearing Officer may also give a closing statement, and then the hearing ends. Go to List

(8) How long will the hearing take?

Hearings generally run between three and five hours. However, depending on the number of witnesses, they may run a full work day, or they may be extended to more than one day. You, the DOE Counsel and your hearing officer will discuss how long the hearing will be and how many days it will take. Go to List

(9) Who will attend the hearing?

These hearings are closed and the public is not permitted to attend. You may be accompanied by an attorney or other representative of your choosing, such as a union official. Witnesses will come and go, but the Hearing Officer, you and the DOE Counsel will be present throughout. The Hearing Officer may request that certain witnesses be present for the entire hearing. You may request that the Hearing Officer permit other individuals (such as your spouse, close friend or a counselor) to be present throughout. A "court reporter" is present to record the hearing word for word and make a typed copy of it, called a transcript. Go to List

(10) Will I be able to obtain a copy of the transcript of the hearing?

You will be provided with a copy of the transcript 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 in the proceeding. Go to List

(11) What do I (or my counsel) need to do to prepare for the hearing?

You should think about the points that 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 those points, since it is your responsibility to convince the Hearing Officer that you should have a security clearance. It is very important for you to think about what witnesses to call who will support your points. For example, if you believe that you have undergone a drug rehabilitation program, the Hearing Officer will want to see documentary (written) evidence to that effect, and would be interested to hear your drug counselor testify about the program and your rehabilitation efforts. Go to List

(12) How do I deal with witnesses?

You should prepare questions to ask each witness. The answers to those questions should bring out the background of the witness, his familiarity to you and with the issues related to the hearing, and the specific testimony that you want the Hearing Officer to hear. Talk to your witnesses before the hearing and explain the issues in the case. You may also wish to tell them the kinds of questions that they will be asked to answer. Be aware that witnesses you call are likely to learn the details of the DOE's case, and that these details may well include information about you that you might consider personal and private. Go to List

(13) Will I be able to question the DOE's witnesses?

Yes. This is a very important part of your presentation. You will want to ask the DOE's witnesses questions designed to bring out any information that they have that will be helpful to your case. Therefore, you should remember to prepare questions to ask the DOE's witnesses, as well as your own witnesses. Go to List

(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. Go to List

(15) Will the DOE Counsel give me any other information that he/she is planning to use?

Yes. The DOE Counsel will give you and the Hearing Officer the documentary (written) evidence that he will use at the hearing. Read it 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 a personnel security specialist (the interview is called a personnel security interview or PSI), police reports, psychiatric evaluation, any agreement signed by you not to use illegal drugs and/or evidence showing a positive drug test. 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. Go to List

(16) Should I also give the Hearing Officer written evidence?

Yes. 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 drug dependent, you may wish to furnish copies of recent negative drug screens that you had, or letters from your drug 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. Go to List

(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 events that give rise to those concerns.

Make sure you also read and understand all the material provided to you by the DOE Counsel. These documents are what the DOE Counsel will refer to when he/she discusses the reasons for suspending (or denying) your access authorization.

You should also read the regulations that are used in these hearings. You should have received a copy of these regulations with the letter notifying you that your clearance has been suspended. They are found at Part 710 of Chapter 10 of the Code of Federal Regulations. A list of various types of security concerns is set out at Section 710.8. We look at Section 710.7(c) in considering whether an employee has overcome security concerns. You should read that section very carefully. The DOE Counsel will be able to provide you with a copy of these regulations if you need one. A copy of the regulations is also available via the Internet on the OHA web site. (See Question 21 below.)

You may also wish to look at Opinions that have been issued in other DOE personnel security cases . Go to List

(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 in that way. 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 who your witnesses will be. The Hearing Officer can also tell you in general terms about how to prepare a case or give you general information about 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. The Hearing Officer need not be a part of these discussions. Go to List

(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 or two before the hearing and will be arranged either as a three-way conference call or on a speaker phone. During this call, you and the DOE Counsel will discuss the issues that will be raised at the hearing, who the witnesses are, what they will testify about, and the order in which they should be called. The Hearing Officer may also make suggestions as to witnesses that you might consider calling to help your case. The Hearing Officer may also tell you what he/she thinks the main security concerns in the case are. Everyone should have a clear view about the concerns. It will help everyone prepare for the hearing. During this conference, you, the DOE Counsel and the Hearing Officer will set up a reasonable schedule for calling the witnesses, one that will best suit the convenience of the witnesses themselves, and the parties. Go to List

(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 such calls would be useful. Also, if you think an additional conference call would be useful, you should suggest it to your Hearing Officer, explaining what purpose it would serve. Go to List

(21) Where can I find examples of Hearing Officers' Decisions?

Hearing Officers' Decisions can be accessed through the Office of Hearings and Appeals' home page on the world wide web site, located at "http://www.oha.doe.gov". You will find a category there called Personnel Security Clearance Reviews. Go to List

(22) Why do I have to bring in support to keep my clearance? Isn't it the DOE's job to prove me guilty?

This is not a criminal case where a prosecutor has to prove you guilty beyond a reasonable doubt. In this case, which involves national security issues, it is the responsibility of the employee to show that it is clearly in the national interest for him to maintain his security clearance. This is a very important point to remember. In these cases it is your responsibility to show that you should have a clearance. It is not the DOE's responsibility to show that you should not have a clearance. In legal terms, we say the burden of proof is on you to show that you qualify for a security clearance. Go to List

(23) Do I have to testify?

You are not required to testify. However, if you refuse to answer questions, the Hearing Officer is unlikely to conclude that you have shown that you are a person who should have a security clearance. Go to List

(24) In general, what do I need to show?

Your obligation is to show that you are not a security risk. If you can establish that the DOE's assertions about you in the Notification Letter are untrue, you should do that. Another approach that employees use in these cases is to show that the matters of concern raised by the DOE have been "mitigated." "Mitigation" means that the DOE is no longer concerned that you may present a security risk. For example, if the DOE's claim is that you are alcohol dependent, you might wish to "mitigate" the DOE's security concern by showing that you have been rehabilitated (such as through a counseling program and/or through a sufficient period of abstinence). If you show rehabilitation, the Hearing Officer might conclude that the security concern about alcohol dependency has been "mitigated." To use another example, if the DOE claim is that you have a mental illness, which in the opinion of a psychiatrist causes a defect in your judgment, you might wish to present testimony from your own medical expert regarding this issue. Your expert might testify, for example, that the security concern is mitigated because you had the illness but have now been fully treated and cured, or because the disease is under full control, or because, in his opinion, you never had such an illness. The concepts of mitigation and rehabilitation are ones you will hear often in this proceeding, so you should become familiar with them. Ask the DOE Counsel or the Hearing Officer for more information about mitigation and rehabilitation. Go to List

(25) What do I have to do to show rehabilitation?

Whether a particular individual has shown that he is rehabilitated will depend on the specific facts in his case. The type of rehabilitation necessary to mitigate the various security concerns listed in Section 710.8 (such as illegal drug use, alcohol abuse, falsification, mental illness, or conduct showing unreliability) differs depending on the particular concern. You should read some of the cases on the issue of rehabilitation in personnel security review cases. Go to List

(26) 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 mitigated. Go to List

(27) Is rehabilitation the only way to respond to the DOE's concern?

There are other ways besides rehabilitation to respond to the DOE's claim that a security concern is present. 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 bring in information to show that you have a doctor's prescription to take a controlled substance. Or, to repeat the example used above, 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. Go to List

(28) Do I have to present witnesses to support my case? Isn't my own sworn testimony good enough?

As a general matter, the testimony that you give concerning mitigation and rehabilitation must be supported by outside, objective evidence. Your testimony is not enough. Similarly, your testimony about the circumstances or events giving rise to the security concern, if offered to mitigate the seriousness of the concern or lessen the rehabilitation necessary, must also be supported by outside corroboration. This corroboration might come in the form of witnesses who can support your version of events or your pattern of conduct, based on their own first-hand knowledge. As a rule, these witnesses must testify at the hearing and be subject to cross examination. It will not be sufficient to provide letters from such individuals. Go to List

(29) Do I get an answer at the hearing?

No. Careful consideration of all the facts and arguments is needed. 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 state the result and the reasoning that led the Hearing Officer to recommend restoring or revoking your clearance (or granting or denying your request for a clearance). A copy will be mailed to you, the DOE Counsel and the DOE's Office of Security Affairs. Go to List

(30) What if I don't agree with the Hearing Officer's Decision?

There is an opportunity for a review of that Decision. Under the regulations that took effect on September 11, 2001, the 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 .29. This process will be explained in more detail in the Decision itself. Bear in mind that the Office of Safeguards and Security can also ask for a review if it does not agree with the Hearing Officer's Decision. Go to List

(31) 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/her letter to you.

If you have any comments or suggestions for improving this Question and Answer Pamphlet, please contact Virginia Lipton , Assistant Director, Office of Hearings and Appeals, at telephone number (202) 287-1527. You may also write a letter addressed to:

Office of Hearings and Appeals
Department of Energy
1000 Independence Ave., S.W.
Washington, D.C. 20585-0107

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 January 8, 2002