Join Club

Legal Insider: Security Clearance Cases Move Online During Pandemic

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

One of the larger questions in our security clearance practice over the past year and a half is whether or not the security clearance hearing process will move online permanently and what form it will take as we move to a post-pandemic world.

The clearance hearing process or personal appearance (depending on the federal agency involved) is typically the most important stage of an unresolved security clearance case where an individual is allowed to present their case in person with counsel if they choose. Depending on the federal agency, the clearance applicant or holder can present their case directly to the decision-maker, along with other witnesses and exhibits.

Pre-pandemic hearing process

Pre-pandemic, almost all federal agencies held security clearance proceedings in person. Depending on the agency, the process would vary significantly. Some agencies like the Defense Office of Hearings and Appeals (DOHA) held courtroom proceedings with administrative judges. The Department of Energy (DOE) held less formal court-like proceedings with administrative judges. Other federal agencies, such as the Department of Homeland Security (DHS), often held personal appearances before a designated decision-maker. Intelligence Community agency processes varied but were in person. The Central Intelligence Agency (CIA) and the National Reconnaissance Office typically held personal appearances that were less formal. The National Security Agency (NSA) held cases before a multi-person panel consisting of employees and advisors. In short, every federal agency was a little different, but most cases were heard in person.

During the pandemic

During the pandemic, the security clearance hearing process did not stop but began to change slightly. Cases continued to be adjudicated, and security clearances were restored or denied following the hearing or personal appearance process. Many federal agencies, like DHS, went online.

Other agencies, like DOHA, followed CDC protocol and still held many cases in person in courtrooms but began to experiment with online hearings. For the first time, a number of Intelligence Community agencies began to suggest the possibility of telephonic hearings but also offered in-person personal appearances.

Thoughts on the online hearing process during the pandemic

In general, we found that the online hearing process was useful for many clients. It definitely helped in some cases where clients were in remote locations. However, where cases required many documents to be reviewed as exhibits or had many witnesses or where the credibility of the person was at stake, we found ourselves believing that a return to in-person hearings should occur.

We think that the online hearing process is definitely helpful for some individuals but not others. In cases where credibility is not at issue, and there were a reasonable amount of documents and exhibits to be presented, online hearings could be very helpful in the future. However, where an individual is accused of being dishonest or where large amounts of documents are needed, we found that online hearings were not as useful. Decision-makers tend to get a better evaluation of an individual when they are facing them directly, as opposed to observing them online. Complicated cases are also harder to present online and should remain in person.

The future

As far as the future goes, it is hard to say anything other than we believe that many security clearance proceedings will stay or move online. We can see some agency cases remaining in person, particularly those involving the Intelligence Community, like the NSA, NRO or CIA. These agencies, particularly when classified or sensitive information is involved, are highly unlikely to believe in a secure online model. We believe that the gold standard agency for security clearance hearings, DOHA, will potentially move to a hybrid model, with some cases going completely online and others being held in person. Ultimately, we think that there is a place for both online and in-person processes, depending on the type of case involved.

Contact us

If you are in need of legal representation or advice in security clearance matters, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

Recent Stories

Last year, an attempt to broaden the Arlington police auditor’s access to police records quietly fizzled before reaching the public for discussion.

George Mason University’s new Fuse at Mason Square in Arlington, is poised to become a 345,000-square-foot collaborative and digital innovation space in the heart of the Rosslyn-Ballston Corridor. “As Mason expands in…

These tree care companies serve Arlington County and received Washington Consumers’ Checkbook’s top rating for quality (as reported by their customers in Checkbook’s surveys).

Wondering about the mechanics of a green card application? Statutes of Liberty has the do’s and dont’s before application fees go up!

Award-winning drag queen Tara Hoot is bringing her Family Fun Story Time Brunch to Arlington at Freddie’s Beach Bar! Saturday April 6 at noon! Join Tara for songs, stories, puppets, bubbles and joy! It’s not just stories, it’s a SHOW that’s perfect for kids and kids at heart–fun for everyone! Plus a tasty brunch at Freddie’s! Click the link and make your reservations now! ❤️ 🫧 🌈

Submit your own Announcement here.

The Summer 2024 STEAM (Science/Technology/Engineering/Arts/Math) Fellowship application is now open! Apply by April 15 to be considered!

The STEAM Workforce Development Teacher Fellowship provides Arlington Public Schools (APS) high school, middle school, and elementary school teachers with opportunities to learn about workplace needs in STEAM-related fields and for them to use the experience to enhance student learning to match workplace expectations in a selected industry. STEAM Fellows participate in a three-week summer fellowship, receiving a $4,000 stipend upon completion.

Applicants planning to pursue a fellowship in the arts must demonstrate how they will build connections between the arts and science, technology, engineering, or mathematics.

Click the button to learn more, share, apply, and see the variety of fellowships completed in previous years.

Read More

Submit your own Announcement here.

Free Right-Sizing Workshop – How to Get Rid of Your…

Cody Chance and Dick Nathan of Long & Foster are hosting a free workshop at our office on Cherry Hill Rd. (formerly Lee Highway) on the topic of “down-sizing” Thursday, March 28 from 5:30-7:30. We have created a workbook with

Portofino Italian Wine Dinner, April 6, 6:30pm

Four course Italian dinner, paired with 2 wines each. The wines will be served “blind” and notes on each wine will be discussed. The event is coordinated with Elite Wine Importers and The Portofino Restaurant. The dinner is on Saturday,

×

Subscribe to our mailing list