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If you believe that you may have clearance problems, and will need to apply for, or renew a clearance in the future, or have been recently denied a clearance, please call Kenneth M. Roberts, Esq., Lt. Col., USAF (Ret.) at (702) 388-1216 for a confidential consultation.
Once an appeal has been timely filed, or a late appeal has been accepted upon a showing of good cause, the Appeal Board will receive the case file that was before the Administrative Judge, and the Administrative Judge's written decision. The parties do not need to supply the Appeal Board with copies of the Administrative Judge's decision or documents that are in the case file.
No new evidence (documentary or testimonial) can be considered by the Appeal Board on appeal. The prohibition on new evidence is mandated by the Directive. Neither party has the right to submit new evidence, nor the right to ask other persons to submit new evidence, for consideration by the Appeal Board. New evidence includes: (a) evidence about matters that occurred after the record below closed; and (b) evidence that could have been presented for the Administrative Judge's consideration during the proceedings below but was not offered by a party. Any evidence that was presented or offered by a party during the proceedings below, but which was rejected or excluded, is not new evidence. However, such rejected or excluded evidence will be considered by the Appeal Board only for the limited purpose of addressing a claim that such evidence was wrongfully or improperly rejected or excluded.
Whenever possible, briefs should be produced by typewriter or word processor. Each page of the brief should have at least one-inch margins on top, bottom, and both sides of each page. Each page of the brief should have text only on one side of the page. Typed or printed briefs should be submitted on regular, unlined, white paper (8 1/2 x 11). Hand-written briefs should be submitted on lined paper, preferably white paper (8 1/2 x 11). Pages of briefs should be fastened by staple or binder clip whenever possible. Do not submit briefs in binders, notebooks, plastic folders, or similar devices.
There is no presumption of error below and the appealing party has the burden of raising claims of error with specificity and demonstrating factual or legal error that prejudiced the substantial rights of the appealing party. Failure to raise claims of error with specificity could result in the Appeal Board deciding that the appealing party has failed to meet its burden on appeal. An appeal brief should include the following:
(a) The applicant's full name and Social Security number;
(b) The case number;
(c) If the applicant is the appealing party, the brief should contain the applicant's mailing address (if the applicant is not represented by a lawyer or a personal representative), or the mailing address of applicant's lawyer or personal representative (if the applicant is represented);
(d) Specific claims of factual error, legal error, or both that are being raised by the appealing party;
(e) Reasons, arguments, legal citations, and references to the record evidence that support each of the appealing party's claims of error; and
(f) The form of relief the appealing party is seeking (i.e., remand or reversal).
The appealing party should raise appeal issues and make appeal arguments only when the party has a good-faith basis for doing so, based on the record evidence, applicable law, or a combination of the two.
The appealing party must submit an appeal brief (original and one copy) and ensure that it is received by the Appeal Board within 45 days after the date of the Administrative Judge's written decision.
The Chairman, Appeal Board will decide whether there is good cause to accept a late appeal brief. If the appealing party fails to submit a timely appeal brief, the Chairman, Appeal, Board may enter an order affirming the Administrative Judge's decision by default. The Chairman, Appeal Board has the authority to vacate a default order if the appealing party makes a showing of good cause for such action.
Upon receipt of a timely appeal brief, the Chairman, Appeal Board will provide a copy of the appeal brief to the nonappealing party and advise the nonappealing party of the right to submit a reply brief. The nonappealing party has the option of submitting a reply brief or deciding not to submit one. If the nonappealing party decides to submit a reply brief, the nonappealing party must ensure that the reply brief (original and one copy) is received by the Appeal Board within 20 days from the nonappealing party's receipt of the appeal brief. If the nonappealing party decides to not submit a reply brief, the nonappealing party should notify the Chairman, Appeal Board in writing of its decision as soon as practical.
If submitted, a reply brief should include the following:
(a) The applicant's full name and Social Security number;
(b) The case number;
(c) If the applicant is the nonappealing party, the brief should contain the applicant's mailing address (if the applicant is not represented by a lawyer or a personal representative), or the mailing address of applicant's lawyer or personal representative (if the applicant is represented);
(d) Reasons, arguments, legal citations, and references to the record evidence that:
(i) support the nonappealing party's responses to the claims of error made by the appealing party;
(ii) support a claim that the Administrative Judge's decision should be affirmed on alternate grounds; or
The nonappealing party should make appeal arguments only when the party has a good-faith basis for doing so, based on the record evidence, applicable law, or a combination of the two. Upon receipt of a reply brief, the Chairman, Appeal Board will provide a copy to the appealing party.
The Chairman, Appeal Board will decide whether there is good cause to accept a late reply brief. If no reply brief is received within the specified time, or if the nonappealing party states in writing that no reply brief will be submitted, the Chairman, Appeal Board will so inform the appealing party. In either situation, the appeal will be deemed ready for consideration by the Appeal Board based on the issue(s) raised by the appealing party.
If a timely cross-appeal has been filed, or a late notice of cross-appeal accepted upon a showing of good cause, the cross-appealing party will be allowed to submit written arguments in support of its cross-appeal, and the appealing party will be allowed to submit written arguments in response to the cross-appeal. To expedite the appeal process and to avoid undue delay, the Chairman, Appeal Board may, in his sole discretion, allow separate appeal and cross-appeal briefs or direct the parties to consolidate their appeal and cross-appeal arguments in a single brief from each party. The Chairman will notify the parties in writing of his decision on whether separate or consolidated briefs will be required.
No further briefs will be allowed except upon a showing of good cause. The Chairman, Appeal Board will decide whether there is good cause to accept any further briefs.
The Appeal Board will issue a written decision in appeal cases that are decided on the merits. A copy of the Appeal Board decision will be sent to each party. The original copy of the Appeal Board decision will be kept in the case file. The Director, DOHA shall notify the Defense Industrial Security Clearance Office (DISCO) of the Appeal Board's decision as appropriate.
Except for cases covered by Item E3.1.23 of the Directive's Additional Procedural Guidance, there is no further appeal from an Appeal Board decision within the Department of Defense. If the Appeal Board remands a case, the Director, DOHA will forward the case file to an Administrative Judge for further processing as appropriate.
Redacted copies of DOHA decisions issued after 1992 can be researched online at Westlaw. Redacted copies of DOHA decisions issued since November 1, 1996 are available online at http://www.defenselink.mil/dodgc/doha. Hearing Office Administrative Judge decisions may be cited as persuasive authority. However, a decision by a Hearing Office Administrative Judge is not legally binding precedent on an Administrative Judge in another case or on the Appeal Board in any case. Do not cite or rely on a decision by a Hearing Office Administrative Judge to support an appeal argument if there are Appeal Board decisions on point.
Another member of the Appeal Board may be designated to act in the absence of the Chairman, Appeal Board. When an Appeal Board member is acting in that capacity, the Appeal Board member's actions shall have the same legal effect as actions taken by the Chairman, Appeal Board.
The Chairman, Appeal Board may, in his sole discretion, vary the application of the provisions of this document in a given appeal: (a) upon a showing of good cause, or (b) whenever he deems it necessary to provide for the fair and efficient handling of appeals under the Directive. Neither the Chairman nor the Appeal Board has the authority to vary the provisions of the Directive.
This information is from the DOHA article APPEALS OF INDUSTRIAL SECURITY CLEARANCE CASES
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