The DOHA Written Decision / FORM Process: A Step-by-Step Guide

For a defense contractor employee whose case is at DOHA, the FORM process is the written-record path. The applicant answers the Statement of Reasons without requesting a hearing. A DOHA Administrative Judge then decides the case from the documents alone and issues a written decision. That decision can generally be appealed to the DOHA Appeal Board.

A contractor employee who has just learned that a clearance is in jeopardy is often handed unfamiliar terms like SOR, FORM and Department Counsel, with little explanation of how they fit together. This guide describes the written-record track for contractor employees whose cases DISCO forwards to DOHA under DoD Directive 5220.6. Military members, DoD civilians and intelligence community personnel follow different procedures, and the guide notes where those differ.

In this guide: Before you start · Step 1: The SOR · Step 2: The FORM · Step 3: The written decision · Step 4: Appeal rights · Complications · Counsel · FAQ

Before You Start: What the DOHA FORM Process Is and When It Applies

DOHA, the Defense Office of Hearings and Appeals, is the Department of Defense office that decides contested clearance cases for contractor employees. Those cases arise under DoD Directive 5220.6, which provides that its procedures operate except as otherwise provided by E.O. 10865. The Directive applies to cases that the Defense Industrial Security Clearance Office forwards to DOHA. Its purpose is to determine "whether it is clearly consistent with the national interest to grant or continue a security clearance for the applicant."

FORM stands for File of Relevant Material. It is the written-record track, and no in-person hearing is held. The hearing track also ends in a written decision. The difference is that a FORM case is decided entirely on the documents in the file.

The Directive limits its own reach. It does not apply to access to sensitive compartmented information or a special access program. It also does not apply to three kinds of withdrawal:

• a clearance withdrawn because the person no longer needs access;
• an interim clearance withdrawn during an investigation;
• a clearance withdrawn for administrative reasons without prejudice to a later decision.

Deadlines and eligibility for the FORM track depend on the person's category and the deciding system, and the instructions DOHA provides in the case materials govern.

A person entering this process usually has the Statement of Reasons, any earlier agency correspondence, and any personnel security file materials already received.

Step 1: Receiving the Statement of Reasons and Understanding Your Response Window

This step applies to contractor employees whose cases fall under DoD Directive 5220.6. The Statement of Reasons (SOR) is the formal notice that lists the security concerns behind a proposed denial or revocation. Each concern is tied to an adjudicative guideline. The Directive requires this notice. A final unfavorable decision generally may not be made without first giving the applicant:

"4.3.1. Notice of specific reasons for the proposed action. 4.3.2. An opportunity to respond to the reasons. 4.3.3. Notice of the right to a hearing and the opportunity to cross-examine persons providing information adverse to the applicant. 4.3.4. Opportunity to present evidence on his or her own behalf, or to be represented by counsel or personal representative. 4.3.5. Written notice of final clearance decisions. 4.3.6. Notice of appeal procedures."

The response to the SOR is where the applicant either requests a hearing or does not. A case that proceeds without a hearing is decided on written submissions. There is no live testimony before an Administrative Judge, which is a judge who decides contested clearance cases at DOHA.

The time allowed to respond is stated in the SOR materials and in DOHA's procedures. It is not given here because it depends on the program and category. Delay carries real risk. Under the Directive, an applicant who fails to proceed in a timely or orderly fashion can have the clearance revoked and case processing stopped. A related guide covers responding to a Statement of Reasons.

Step 2: Building the File of Relevant Material (FORM)

The FORM is the documentary record the Administrative Judge will read. For a contractor employee on the written track, the government's side is handled by Department Counsel. Department Counsel are DOHA attorneys the Directive assigns "to represent the Government's interest." The government's portion commonly includes the SOR, investigative materials and supporting documents.

The applicant's side commonly includes:

• the written answer to the SOR;
• written argument addressing each concern;
• supporting documents, such as financial records, treatment records and character letters.

Submission deadlines come from DOHA's procedural rules for the case. They appear in the materials DOHA provides and on the DOHA website, not in this guide.

What sets this track apart is that the file is the only evidentiary opportunity. There are no witnesses and no cross-examination. Once the record closes, gaps generally cannot be filled. The Directive also expects cooperation from the applicant. An applicant is "required to give, and to authorize others to give, full, frank, and truthful answers to relevant and material questions." A refusal "may prevent the DOHA from making a clearance decision."

Step 3: The Administrative Judge Reviews the Record and Issues a Written Decision

After the record closes in a contractor case, a DOHA Administrative Judge reviews the entire file. The judge applies the adjudicative guidelines and the whole-person concept. The whole-person concept is the principle that no single fact is read in isolation.

The Directive describes each decision as "a fair and impartial common sense determination based upon consideration of all the relevant and material information." The factors weighed include the nature and seriousness of the conduct and its circumstances. They also commonly include how recent and frequent the conduct was, why it happened, rehabilitation, and the likelihood of recurrence. The guidelines have also been published as 32 C.F.R. Part 147, though the version that governs a particular case is worth confirming.

The written decision sets out findings of fact, applies the relevant guidelines, and reaches a conclusion. For a contractor employee, a favorable decision establishes eligibility. An unfavorable one denies the application or revokes any existing clearance at every level. The decision is served in writing on the applicant and Department Counsel. Processing times vary, and DOHA does not publish a fixed timeline that this guide can rely on.

DoD personnel follow a different path. For DoD military members and civilians who appeal through a personal appearance, DoD Manual 5200.02 provides that the judge issues "written recommendations to the appropriate PSAB." For contractor employees, by contrast, the Administrative Judge's decision is the result at that level.

Step 4: Appeal Rights After a Written Decision

For contractor employees, DoD Directive 5220.6 provides for a DOHA Appeal Board whose members are designated Administrative Judges. Either side may generally appeal an adverse written decision to it. The filing deadline and procedure appear in the decision and on the DOHA website. The scope of the Board's review, including whether new evidence is considered, is set by DOHA's rules. An attorney can explain how that review is generally conducted. A separate guide covers the DOHA appeal in more depth.

The Personnel Security Appeals Board (PSAB) is not a further step for contractor employees. Under DoD Manual 5200.02, Appendices 10A-10B, the PSAB receives DOHA recommendations in personal-appearance appeals and issues the determination for DoD military and civilian personnel. Its determination "will be final" for those individuals.

Court review is narrow. In Department of the Navy v. Egan, 484 U.S. 518 (1988), the Supreme Court held that a clearance decision is a discretionary, predictive judgment committed to the executive branch. That holding is why judicial review of the merits is limited, and why the administrative record carries so much weight. Some people ask about security clearance reconsideration as a separate route. Whether it is available depends on the category and the posture of the case.

When the FORM Process Gets Complicated

Some cases are harder on paper than in person. One common example is a case involving more than one guideline, such as financial considerations alongside foreign influence. Each guideline carries its own mitigating conditions, and a written record commonly has to address each one separately.

Investigative files are not always complete or accurate. On the written track, errors in the file are generally confronted through the FORM submission itself, because no testimony is taken.

Some mitigation is naturally told rather than shown. Rehabilitation and changed circumstances are examples. On this track, that kind of evidence has to exist in document form, such as treatment records, employer letters or financial documentation. When the SOR contains factual inaccuracies, the rebuttal lives in writing and is supported by records.

SF-86 problems add another layer. The SF-86 is the national security questionnaire. Incomplete or inconsistent answers on it can raise a personal conduct concern on top of the original issue. They also bear on how a judge reads the rest of the file.

In each of these situations, the file is the entire case. Outcomes vary with the facts and how they are documented. A judge reading a complete record and a judge reading a thin one may reach different conclusions on similar conduct.

What to Look for in Counsel for a DOHA FORM Case

A FORM case is a distinct administrative proceeding. It has its own procedural rules, its own guidelines and its own Appeal Board practice. Familiarity with those rules matters more than general federal administrative experience. Employment law experience alone may not cover how DOHA builds and reads a record.

Because the written submissions are the case, the core work is drafting. That means organizing argument by guideline and assembling a record that documents the mitigation. Questions people commonly ask a prospective attorney include:

• how many DOHA matters the attorney has handled;
• how the attorney approaches written-record cases compared with hearings;
• how the attorney evaluates the choice between the two tracks.

Representation is permitted at the applicant's own expense, and fees vary.

Security Clearance Defense Group focuses on DOHA and related federal security clearance proceedings. The firm does not handle unrelated employment matters, state-court litigation, or cases outside the security clearance administrative process. A consultation can explain how the FORM track and the hearing track generally differ. A related guide describes DOHA hearings, and an overview places DOHA within the security clearance process.

Frequently asked questions

What is the DOHA FORM process?

It is generally the written-record track at DOHA for contractor employees. A clearance case is decided on documents, without an in-person hearing. An Administrative Judge reviews the File of Relevant Material and issues a written decision. The track commonly applies when the applicant does not request a hearing.

What is the difference between a DOHA hearing and the FORM process?

The difference is the evidence. At a hearing, the applicant can testify, present witnesses and cross-examine adverse witnesses. On the FORM track, everything comes in through written submissions. Both tracks end in a written decision.

How long does the DOHA FORM process take?

The timing varies. It depends on the complexity of the case, the completeness of the submissions and DOHA's caseload, and no fixed timeline applies. Current information is on the DOHA website, and an attorney can explain how timing generally works.

Can I appeal a DOHA written decision?

For contractor employees, an adverse written decision can generally be appealed to the DOHA Appeal Board. The deadline is stated in the decision and DOHA's rules. Review beyond the Board is limited, and federal courts generally defer to executive clearance judgments under Egan.

What documents go into the File of Relevant Material?

The government's materials commonly include the SOR and investigative documents. The applicant's materials commonly include the SOR answer, written argument, and records such as financial documents, character letters and treatment records. Once the record closes, additions are generally not possible.

Do I need a lawyer for a DOHA FORM case?

Representation is not required. The Directive permits counsel or a personal representative. Because there is no hearing at which to clarify the record, people often find that the quality of the written submissions matters a great deal. Fees vary by matter.

What adjudicative guidelines does DOHA apply in a written decision?

DOHA judges apply the adjudicative guidelines and the whole-person concept within the framework of DoD Directive 5220.6. The guidelines cover areas such as financial considerations, foreign influence, criminal conduct and drug involvement. The decision identifies which guidelines apply.

What happens if I miss the deadline to respond to the Statement of Reasons?

Under the Directive, failing to proceed in a timely fashion can lead the DOHA Director to revoke the clearance and stop processing. Reinstatement requires good cause. If reinstatement is denied, the applicant is barred from reapplying for 1 year from the revocation.

If You Want to Talk Through the Written-Record Track

The choice between a written record and a hearing, and how a file is built, are questions that can be worth discussing with an attorney. A consultation can cover how the FORM process generally works, how mitigating factors are generally evaluated, and what representation at each stage typically involves. No lawyer can promise a result. To learn how this process works and what options may be available, call Security Clearance Defense Group at 888-606-8957 for a free consultation.