VA Clinical Privilege Decisions

We defend Department of Veterans Affairs (VA) medical professionals in clinical privileges cases. Negative clinical privilege decisions impact the ability of medical professionals to practice at the VA. They can also affect professional reputations and career advancement. Furthermore, clinical privileges are essential in order to provide care to veterans. When clinical privileges are revoked or suspended, VA employees face significant professional and personal challenges. VA medical professionals should retain experienced Veterans Affairs employment lawyers when privileging issues arise.

What are Veterans Affairs Clinical Privileges?

VA clinical privileges are given when a VA facility authorizes a medical provider (licensed independent healthcare practitioners or LIPs) to independently (i.e., without supervision or restriction) provide healthcare services on a facility-specific basis. Only providers who are permitted by state law or Federal law or regulation and the VA medical facility through the Medical Staff Bylaws may be privileged to practice independently. Clinical privileges are based on the individual’s clinical competence as determined by peer references, professional experience, health status, education, training, and licensure. Clinical privileges must be VA medical facility-specific, LIP-specific, and within available VA medical facility resources to support the privileges granted.

Grounds for Reduction or Revocation of Clinical Privileges at the VA

There are many reasons why VA clinical privileges can be lost. The privilege review process is governed by specific VA guidelines. These guidelines protect the medical provider’s rights. Generally, if privileges are being reduced or revoked as an adverse action, the action is being taken based on allegations of substandard care, professional misconduct, or professional incompetence.

VA Privileging Oversight

There are two common ways in which the VA exercises oversight over providers for the purposes of privileging: Focused Professional Practice Evaluations (FPPEs) and Ongoing Professional Practice Evaluations (OPPEs).

Focused Professional Practice Evaluations (FPPE)

An FPPE is an oversight process where the respective clinical service chief and the Executive Committee of the Medical Staff (ECMS) evaluate the competence of a provider. This is done for those who have not yet documented evidence of competently performing the requested privileges at a VA medical facility. FPPEs can also be done for Cause. An FPPE for Cause is a period during which the clinical service chief assesses the provider’s performance. This is to determine if any action should be taken on the provider’s privileges after a clinical concern has been triggered and a FCCR has been conducted. If participating in a FPPE, especially one for Cause, it is important to make sure that VA policies are followed in the process.

The FPPE process may include, but is not limited to, periodic chart review, direct observation, monitoring of diagnostic and treatment techniques, or discussion with other individuals involved in the care of patients. Efforts should be taken to ensure that the medical provider is given a fair and impartial review process.

Ongoing Professional Practice Evaluations (OPPE)

An Ongoing Professional Performance Evaluation (OPPE) is the ongoing monitoring of privileged providers to identify clinical practice issues that impact the quality and safety of care. OPPE applies to all providers who are privileged, including physician assistants, nurse practitioners, and clinical pharmacist practitioners who are on Scopes of Practice.

Responding to a Privileging Action at the VA

If a federal employee at the VA faces a potential or actual loss of clinical privileges, it is essential for them to understand the procedural safeguards in place and their rights to challenge such actions.

1. Initial Notification of Adverse Privileging Action

If the VA proposes to revoke, suspend, or limit a healthcare provider’s clinical privileges, they will be notified in writing. This notification should include the specific reasons for the proposed action, along with any supporting evidence or documentation. The medical provider will receive adequate notice in order to respond to the allegations alleged regarding their performance or conduct.

If the provider responds to the proposed action, the provider’s response is provided to the Facility Director for decision. The Facility Director must make and document a decision on the basis of the record. If the provider disagrees with the Facility Director’s decision, an appeal hearing may be requested. The request for a hearing must be submitted within five workdays after receipt of the decision.

At this stage, a provider may have the opportunity for informal resolution. Informal resolutions with management can address issues before a formal privileging decision is made. If the provider can demonstrate that the concerns are unfounded or can propose corrective actions (such as additional training or peer review), it may be possible to resolve the issue without a formal revocation of privileges.

2. Fair Hearing Panel

If the Facility Director upholds the revocation or reduction of privileges action, the provider may request a Fair Hearing. Once a Fair Hearing is requested by the provider, the Facility Director must appoint a review panel of three professionals within five workdays after receipt of the practitioner’s request for a hearing to conduct a review and hearing. At least two members of the Panel must be members of the same profession. If specialized knowledge is required, at least one member of the Panel must be a member of the same specialty.

The provider will be notified of the time, date, and place of the Fair Haring. Prior to the hearing date, the provider will be offered the opportunity to identify witnesses for the hearing and submit exhibits to be considered during the hearing. During the hearing, the provider has the right to be present for the full proceeding, be represented by legal counsel, and call witnesses.

Upon conclusion of the hearing, within 15 working days, the Panel must complete their review of the case and submit their report to the Facility Director. The Facility Director then has the authority to accept, reject, accept in part, or modify the review panel’s recommendations. The Facility Director must issue a written decision within 10 working days of the date of receiving the Panel’s report. Once the Facility Director makes the final decision to reduce or revoke privileges, this decision can be reported to the National Practitioner Data Bank (NPDB).

3. Appeal of Final Revocation or Reduction Decision

If the Facility Director issues a final decision reducing or revoking the provider’s privileges, the provider may appeal that decision to a final level of review. This final appeal is submitted to the appropriate VISN Director within five workdays of receipt of the facility Director’s decision. This appeal option will not delay the submission of the NPDB report. If the Facility Director’s decision is overturned on appeal, the report to the NPDB must be withdrawn. Once an appeal is filed at this final level, the VISN Director must provide a written decision, based on the record, within 20 work days after receipt of the practitioner’s appeal. The decision of the VISN Director is not subject to further appeal.

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Our Veterans Affairs employment lawyers defend medical professionals in privileging cases. We also represent all federal employee medical providers. If you need legal assistance regarding privileging actions or other VA employment matters, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.

We represent federal, Virginia and Washington, D.C. employees in hostile work environment claims. If you have been mistreated at work, especially in a consistent and/or repetitive manner, you might describe it as a “hostile work environment” based on harassment. But in a legal context, this term has a very specific meaning. Not all difficult or abusive workplace situations are actionable under anti-discrimination laws. If a situation is actionable, you may need to act quickly—especially if you are a federal government employee—in order to preserve your rights and potentially obtain relief. It is therefore particularly important to obtain legal counsel as early as possible in order to determine whether your case meets the relevant criteria to bring legal action. An EEO lawyer can also advise you as to what can be done to pursue the claim based on your type of employment and the facts of the case. Regardless, understanding the type of claim is a good first step.

Basics of a Proper Hostile Work Environment Claim

The federal anti-discrimination laws recognize two basic types of harassment claims, and they are fairly intuitive on a surface level: the harassment is either a pattern of conduct (or other change affecting the  work environment in an ongoing way), or it is a discrete action standing by itself, such as a termination. If it is a pattern of abusive treatment, or an ongoing and harmful changed condition of the employment, it can be called a “hostile work environment,” often shortened to HWE. The idea behind HWE is that even if an employee is not directly fired, demoted, or otherwise subjected to a specific adverse action, the “terms and conditions” of their employment can still be changed—either formally, or informally and thus “constructively”—by a sufficiently substantial alteration to the work environment.

Two Key Components of HWE Claims

There are two key components of a proper HWE claim under federal law. The first component is that you must have been subjected to “unwelcome conduct” that was, or is, “severe or pervasive”—enough for the overall work environment to reasonably considered “hostile or abusive.” The second component, which is not obvious to many people and which is the source of much confusion, is that however the “unwelcome conduct” may be manifested, it must also be based on your membership in a legally protected group.

Protected Groups

Protected groups include race, color, or national origin; religion; sex and/or gender, including related statuses such as pregnancy; age; disability; genetic information; or having engaged in prior “protected” Equal Employment Opportunity (EEO) activity such as complaining about discrimination or participating in another’s EEOC complaint adjudication. (Discrimination on the basis of prior protected activity is called retaliation or reprisal). Note that this is at the federal level. States may add their own protected groups under their own anti-discrimination laws, but you can’t use state-specific additions to that list if you pursue your case via the federal EEO complaint process. For example, Virginia law protects against discrimination on the basis of marital status or military veteran status; at the federal level, you might have to make a marital status claim using a sex- or gender-based argument, and you would have to potentially pursue the veteran discrimination claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA is a separate statute with a separate complaint and adjudication process. You would have to pursue state-level anti-discrimination processes to use the “extra” protected statuses, and the efficacy of those processes can vary substantially by state.

Nexus Requirement

The second component of tying the HWE to a protected status is critical. Absent this “nexus” component, a claim of harassment or HWE will not survive scrutiny under the federal EEO process. That means that abusive work environments which are not based on any of the protected statuses cannot properly be claimed as a “hostile work environment” under these workplace laws, even if they are based on, e.g., intense personal animus or egregiously targeted and arbitrary adverse action. While such situations could be remediable via other processes, such as the Office of Special Counsel (OSC) if you are a federal employee, or via other state protections, it is important to keep in mind that private companies generally enjoy “at will” employment protections. This means they are allowed to fire or otherwise take adverse action against an employee for any reason or even no reason, as long as it is not a discriminatory reason based on these protected statuses. And for federal agencies, arbitrary or otherwise unsupported personnel action could be appealable to the Merit Systems Protection Board (MSPB) or reported to OSC, but it is not independently an EEO claim.

Subjective Versus Objective HWE

The EEOC necessarily follows Supreme Court precedent regarding these legal issues. In 1993, the Supreme Court laid out a framework for HWE claims, including with the “severe or pervasive” standard. In that same seminal case, Harris v. Forklift Systems, Inc., the Court also imposed a two-pronged standard for deciding when a work environment is sufficiently “hostile:” it must be both subjectively hostile and objectively hostile.

Objective Hostility

Objective hostility uses the classic legal hypothetical of “reasonableness:” would a “reasonable person” find the work environment objectively hostile or abusive? If not, the claim may not be actionable regardless of what the employee subjectively believes. Because this determination is not made by a complainant themselves, it is worth considering whether a neutral decisionmaker (i.e., a judge or jury) is likely to find that an average, rational person in the employee’s position would find the work environment hostile and/or abusive.

Subjective Hostility

Subjective hostility means that the employee must subjectively believe and perceive the workplace to be hostile and abusive before a HWE claim is valid. This may seem silly—why would somebody claim HWE if they don’t personally consider it hostile or abusive?—but that is the point here: you cannot claim HWE if you don’t personally find the environment to be hostile or abusive, even if a reasonable person would and the only reason you don’t is because you don’t mind it. In other words, you cannot receive a windfall just from being willing to put up with something that a hypothetical “reasonable” employee would find to be objectively hostile.

Together, this means that an unreasonably sensitive person cannot claim HWE over a situation where a reasonable person would not mind, and likewise, an especially stoic person cannot claim HWE without actually perceiving the hostility or abuse as harmful to themselves or their employment. Both subjective and objective hostility must be present.

Further Considerations

Alongside satisfying the “severe or pervasive” standard, demonstrating both subjective and objective hostility, and showing how the problematic actions were based on or motivated by one or more protected statuses, HWE cases often involve even more granular analyses. For example, was the conduct “unwelcome?” How should this be argued in a case with a wide range of allegedly discriminatory and harassing conduct? What if a separate incident is also part of a broader pattern? These issues can get complicated very quickly, which is why experienced representation can be an especially beneficial asset in pursuing a HWE claim.

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Although the umbrella concept of “harassment” can include HWE and “regular,” perhaps more isolated harassing conduct by an employer, there are various stages of the EEOC complaint, investigation, and adjudication processes during which presenting the claims properly can be critically important. Even if a mistake can be rectified later in terms of a claim’s phrasing, a complainant misunderstanding and mis-alleging an EEO-related harassment claim can cause problems with how the complaint is processed, investigated, and ultimately adjudicated. As a result, the distinctions between HWE and “other” harassment are helpful to know from the very beginning, and knowledgeable legal counsel can help tailor how your claims are presented in order to achieve the best possible outcome for your case.If you are seeking representation before the EEOC, you can contact us via our website, www.berrylegal.com, or by phone at (703) 668-0070, to arrange for an individual consultation.

We defend and advise government contractors, military personnel, and federal employees who have polygraph examination issues. We do this as part of our security clearance practice. The polygraph examination is a central part of the security clearance process for many employees, depending on their required level of access. For certain federal agencies and clearances, like for sensitive compartmented information (SCI) access, many federal agencies require a polygraph examination. Many clients come to us when they have failed a polygraph examination. They also consult with us when they are facing the decision to make certain disclosures in connection with a polygraph examination or discontinue the process. Additionally, clients meet with us when polygraph examination issues result in a Statement of Reasons.

What is a Polygraph?

The polygraph is a machine designed to detect and record changes in physiological characteristics, such as an individual’s pulse and breathing rates. Some people also refer to it as a lie detector. The exam measures these physiological responses while the individual answers a series of questions. The goal of the polygraph is to attempt to determine whether the individual is being truthful, particularly about issues that could pose national security risks. These risks can include such issues as foreign connections, drug use, financial debts, or criminal activity. The exam is usually administered at the federal agency where you are seeking security access. The exam will then be given by an experienced polygraph examiner. Depending on the type of polygraph examination, the testing session could last 2 to 7 hours.

When is the Polygraph Exam Used?

Polygraph tests are typically used during the background investigation process for higher-level security clearances.They are discussed in Security Executive Agent Directive 2 and DOD Instruction 5210.91. In some polygraphs, the examiner asks a series of yes-or-no questions related to national security concerns, such as whether the applicant has committed espionage or had unauthorized contact with foreign nationals. Additional government guidance on the use of polygraphs within the Intelligence Community (IC) is provided in ICPG 704.6. The exam is meant to be one of many tools in determining a person’s reliability and trustworthiness. While polygraphs are not foolproof and can be influenced by a variety of factors — such as nervousness, medical conditions, or even the examiner’s approach — the results can have a significant impact on the outcome of a clearance investigation. Additionally, the exam process itself may lead to other security disclosures outside of the testing phase. A failed polygraph, however, does not automatically result in disqualification, but it is a potential red flag that must be considered and addressed.

Polygraph Exam Failures During Clearance Investigations

If you fail a polygraph examination, it is important to understand that this does not necessarily mean the end of your security clearance process. The next step typically involves a follow-up interview with the agency conducting the investigation, where you may be asked to discuss issues related to the results of the polygraph. During this interview, it is crucial to be honest, calm, and cooperative. Some applicants may find themselves in a situation where they fail the polygraph, either due to physiological reasons, anxiety, or other factors. This is fairly common. Understanding how to handle this outcome is essential for safeguarding your clearance prospects. We represent individuals in polygraph and security clearance matters.

In many cases, polygraph results may be inconclusive or misinterpreted, and further clarification or re-testing might be necessary. If the failure is related to a specific issue, such as a misunderstanding or anxiety, providing evidence or context may help clear up any doubts. However, if there is a legitimate concern — such as involvement in illegal activities or a failure to disclose critical information during the background check — the results could jeopardize your eligibility for a security clearance. If criminal issues come up, it is important to discuss these with counsel to see if the continued polygraph examination process is in your best interests. Some polygraph disclosures can lead to criminal concerns.

Additional Polygraph Examinations

If you are unable to pass a polygraph examination, you should consider requesting a second (or third) examination, especially if you believe that anxiety or other non-deceptive factors have affected the results. In some cases, it has taken some individuals 4 or 5 polygraph examinations to pass. You may also want to consult with a security clearance lawyer with expertise in polygraph examinations who can help you understand the security clearance process.

If there are unique issues that led to the failure — such as a past criminal act or undisclosed financial problems — you must be prepared to address these concerns in a transparent and honest manner. Failure to do so could be interpreted as a lack of trustworthiness, which could ultimately harm your clearance prospects. In some cases involving criminal issues, legal advice about whether to continue in the process is crucial. It is critical to maintain a high level of honesty and transparency throughout the polygraph process. Review your background information carefully if there are potential security concerns at issue. If you are particularly concerned about the polygraph examination process, consider speaking with a security clearance lawyer in advance, who can advise you on legal issues that could come up

Additional Considerations

A failed polygraph for a security clearance is a serious issue, but it does not necessarily spell the end of your clearance application. Keep in mind that when important issues come up during a polygraph examination, an individual, depending on the agent can request to have counsel nearby or observing the process. By understanding the polygraph process, being prepared to address any concerns in the aftermath, and seeking professional advice when necessary, you can increase your chances of successfully navigating this challenge. The key to handling a polygraph failure is to remain honest, transparent, and cooperative throughout the process. With the right approach, you may still be able to resolve any issues and move forward in the security clearance process.

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Our security clearance lawyers represent and advise individuals in polygraph and security clearance matters. If you need legal assistance, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.

Social Media Use by Federal Employees

For the past 7-10 years, we have seen social networking issues continue to arise in our representation of federal employees in the federal workplace. The bottom line is that it general makes sense to avoid using social media in the federal workplace. Numerous issues keep arising with federal employees being subject to discipline or even removal for use of social media. We frequently represent federal employees accused of misconduct involving social media in the federal workplace. Some tips and thoughts follow.

Pitfalls of Social Media Use in the Federal Workplace

Federal agencies use information posted on Facebook, X, Instagram, Linked In and other social networking sites when they discipline federal employees. Many federal employees have had to appeal these issues to the Merit Systems Protection Board (MSPB) when they receive serious discipline or removal.

Anything that is posted on a social networking site like Facebook or X can potentially be brought back into the federal workplace. Some federal agencies have removed federal employees for their use of social media. Delfora v. Dep’t of Navy, 2024 MSPB LEXIS 4141 (July 15, 2024) (Appellant removed, in part, for posting an article on workplace violence on social media; Vidal v. Army, 2011 MSPB Lexis 4788 (Aug. 5, 2011) (Agency removed employee because of alleged anxiety producing comment on Facebook that was reported at work).

Other Social Media Cases of Concern

Other federal agencies have also attempted to discipline federal employees where they have called in sick, but then used posted information on social networking sites to show that the employee was untruthful in using sick leave.  Hunter v. Dep’t of Navy, 2011 MSPB Lexis 3159 (May 11, 2011) (involving allegation that the appellant had called in sick to watch the Superbowl but had posted information on Facebook that he was not really sick).

Other issues that seem to be developing where Federal employees are found to have posted comments to social networking websites while at work (on duty). Sometimes, these have resulted in charges that the federal employee has been compensated for person time spent on social media. All sorts of potential issues could develop in such a situation. If an agency is looking to discipline a federal employee, they could potentially charge them for “time card” issues alleging that they were receiving pay but not actually working or perhaps for neglecting their duties while they were on Facebook, X, etc.

The Use of Facebook, X, Instagram and Other Social Networking Websites at Work

Typically, the use of Facebook and other social media websites by federal human resources officials and supervisors at federal agencies has not been in the form of direct monitoring (which would be problematic and potentially illegal). However, other federal employees or supervisors have reported the social media content of other employees to Human Resources personnel in the past. As you see the real issue that has developed in the context of federal employment is that other co-workers often times print out the postings made by other federal employees and then report them.

Sometimes these individuals, who are “friends,” “followers” or connections on social networking sites allege that the federal employee involved has posted inappropriate, discriminatory or even harassing comments.  The most likely situation would be where a federal employee posts inappropriate or angry comments about their supervisor and another co-worker prints out the comments and brings them into work.

Once this information is in the hands of the federal agency, often times they can find a legitimate connection to incorporate the issue into a disciplinary or even a removal action. While there is a right to some privacy and even the First Amendment, often times a connection (or nexus) to the Federal workplace can be found to enable the Federal agency involved to take disciplinary action related to off duty activities.  The MSPB and the Federal Circuit have generally held that off duty activities can be subject to discipline where it could cause the public or co-workers, to question or lose confidence in the Federal agency involved. See Stump v. Department of Transportation, 761 F.2d 680, 681-82 (Fed. Cir. 1985).

Know your Agency’s Rules on the Use of Government Internet or Computers

Lastly, it is important to take a look at your agency’s policy on use of government internet or computers. Often, many policies will restrict social media usage. One example is from the Department of Commerce and can be found here.

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Be careful what you post on social networking sites. Also, be very careful about sharing access to your social networking sites with others at work in the federal workplace.  If a federal employee or supervisor finds themselves in a difficult situation as a result of using social networking websites, they should contact an attorney familiar with these types of Federal employee issues to advise them in how to best to defend against disciplinary investigations or disciplinary actions that result. We can be contacted for possible representation in these cases.

We often meet with civilian federal employees, military personnel and government contractors nationwide facing potential or actual security clearance issues. Many of the potential clients we meet with ask us what security clearance lawyers do and why they may need to hire one. Many individuals also ask what the appropriate time is in which to hire one. The usual answer we give is that it is best to do so very early in the process. We feel that the earlier in the process a person obtains legal advice about their security clearance concerns, if potential issues exist, the better they increase the odds of a successful outcome.

Obtain Legal Advice Early

As I mentioned above, it is extremely important that individuals with potential security issues consult with experienced security clearance counsel as soon as possible. In our experience, the earlier that an individual with security concerns or potential security concerns consults with a knowledgeable security clearance lawyer, the better the chances are to avert a potential negative outcome.  We also find that it is less expensive to address a problem early before it gets more difficult to defend or respond to. One of the most frustrating issues that we run across in representing employees with security clearance issues is when they come to us too late to avert a negative outcome that might have otherwise been avoided.

What Does a Security Clearance Lawyer Do?

I am often asked the question of just how an attorney can assist a person in the security clearance process.  The answer is that there are many ways that an experienced lawyer in security clearance law can help when there are security concerns.  A lawyer experienced in the security clearance process can advise an individual before a security clearance problem develops. We have found that most individuals have a good sense as to whether or not they may have a security concern (e.g. a recent arrest, drug use, financial issues) as they apply for positions or when they fill out security clearance forms like the e-QIP, eApp, SF-86 and/or different versions of the SF-85. Sometimes individuals don’t weigh (or really plan out) how much a potential security issue can affect their ability to obtain a clearance. Having a security clearance lawyer advise a person about the process can be invaluable.

Consulting Before the Clearance Review Process Begins

When an individual understands that they may have a security concern, consulting with a security clearance attorney can help them get ahead of potential security clearance concerns. One of the major issues that we see in the clearance process is when an individual comes to us too late in the process to alter a negative clearance outcome. We have seen individuals who could have likely obtained or retained their security clearances, but did not seek legal advice early enough in the process to avoid a pitfall which ultimately caused the loss of the clearance.

Sometimes, individuals have had financial issues which could have been easily mitigated, but the person did not realize what type of information was needed for their response. They then receive a denial and are left with fewer options in the appeals process. On other occasions, individuals have security concerns but have not listed them because they did not feel they were important or that it was debatable to them whether they applied (i.e. counseling or an employment termination).  Getting early legal advice on these issues (and being straightforward in the process) is often the key to success.

When consulting with an individual, a security clearance attorney can get a pretty good idea as to the seriousness of the security concerns at issue and what level of risk is involved in the person applying for a security clearance. In the case of a person who has the option to apply for a security clearance, but more time might be needed to mitigate security concerns we can help the person avoid the potential of a denial by advising them to take more time before applying. In this type of situation, we sometimes advise individuals to wait a year (or the appropriate timeframe) before applying for a position that requires a security clearance.  It is also not uncommon that a security clearance lawyer can anticipate a serious issue with someone obtaining a security clearance, i.e. recent criminal charges, which helps them avoid the embarrassment of applying for a position that they may get only to be removed later when their clearance is not approved. A security clearance attorney can also help to put an applicant’s mind at ease if the risk they are concerned about is not as problematic as it seems.

Review of Accuracy of Security Clearance Forms

Additionally, a security clearance attorney can review an individual’s security clearance / federal employment forms (SF-86, SF-85, SF-85p, OF-306) to ensure that they are as accurate and responsive as possible. It is very important to disclose all potential information, accurately, on these forms. Not doing so can form the basis for a denial based on a lack of candor or alleged falsification. We often see issues arise from the unintentional omission of key information that may not seem to be important (or remembered) at the time the security clearance forms were prepared but later becomes the basis of a clearance denial. The most usual culprit in this type of situation is that the individual was not trying to be dishonest but did not put the time and thought that these forms require and simply made a mistake.

Furthermore, while rare, issues disclosed can lead to criminal concerns. As a result, it can sometimes be important to discuss potential criminal disclosures in advance. It is not often the case that disclosures about potential criminal issues become the basis for a criminal prosecution, but sometimes these questions need to be asked before completing a clearance submission. In other words, if an individual has a potential security concern it is key to get legal advice as early in the process as possible. Waiting to get advice after the security clearance process has unfolded can significantly diminish the chances of success for individuals with security concerns.

Consulting/Representation once the Security Clearance Process Begins

It is also important to have the guidance of a security clearance attorney when the security clearance process has begun. The security clearance forms in such a case have been submitted and the individual has potential security concerns, i.e. a record of arrests or financial issues and are in the process of being scheduled for an investigative interview. In such a situation, it is important to go over the areas of concern with a client that are likely to come up in the interview with a security clearance attorney. There are often ways of responding during an interview that can clear up any misperceptions by the investigator or perhaps mitigate these concerns in advance.

Again, it is extremely important to be honest and accurate during the clearance interview process and sometimes to even disclose concerns before the interview begins in certain cases. An experienced security clearance lawyer can help advise an individual about these issues and disclosures before they are interviewed.  We often review such concerns with clients in advance of security clearance interviews and help them in explaining the security concerns, in advance, so that all goes as smoothly as possible during the interview or re-interview process.

Legal Representation in Clearance Denials or Proposed Denials

An individual will definitely need a security clearance attorney if they receive a denial or proposed denial of their security clearance. Each federal agency is different and there are different security clearance processes for each federal agency. This causes some confusion with clients. The security clearance system has been left to each federal agency under existing rules. The type of response needed will also differ based upon which federal agency is processing the clearance review.

This is the case even though all federal agencies fall under the same Executive Order 12968.  It is also important that the individual consult with experienced counsel where they can explain any issues that individual federal agencies are particularly sensitive to. For instance, the FBI is more sensitive to prior drug use by applicants or employees and many intelligence agencies are sensitive to the misuse or careless handling of classified or otherwise sensitive information. In other words, each federal agency has slightly different views depending on the type of security concerns involved.

Response to Security Concerns

In general, each federal agency usually has a written and personal appearance response stage for those who need to appeal a denial or proposed denial in the security clearance appeals process. While different, each federal agency will provide some form of a Statement of Reasons (SOR) or notice which explains the nature of the security concern at issue.  Furthermore, while the procedures and vantage points of a security clearance appeal are different between agencies, they follow the guidelines issues by the Director of National Intelligence (DNI), which became effective June 8, 2017.  The DNI issued new adjudicative guidelines entitled Security Executive Agency Directive 4 (SEAD 4) which provides a list of potential security concerns and mitigation.  A copy of SEAD 4 is provided here. A security clearance lawyer will be versed in the latest regulations governing such appeals (both federal government-wide and federal agency-specific) before the individual agency involved and will be able to assist a person in navigating the type of appeal to present.

Written Response Stage

The typical first step in the security clearance process is to provide a written response to the security concerns to the clearance review authority. To do so, an experienced security clearance attorney will obtain a complete fact set from the individual regarding the security concerns at issue and work to determine the best possible methods of rebutting and/or mitigating these security concerns. There is also a whole-person concept evaluation, which counsel can assist with by explaining the positive attributes about the individual’s character and/or background which can also help to mitigate clearance issues. To this end, we also often ask a potential client about their employment performance, community involvement and/or whether or not they can obtain letters of recommendation or reference for use in mitigation.

The written response usually takes the form of a written submission by counsel, exhibits, and attaches an affidavit or sworn declaration.  It is not uncommon for such responses to be 10 to 70 pages in length, with exhibits.  The length of a submission depends on the security concerns at issue and the type of mitigating documents that are available for a case.

Personal Appearance or Oral Response Stage

While it is very important to provide a detailed written response to security clearance issues, it is even more important to present a thorough oral presentation where the opportunity to do so arises.  We almost always recommend that an individual elect a hearing or personal appearance in security clearance cases. Again, the format for these presentations differ. Some federal agencies conduct formal hearings with an administrative judge (Department of Defense, Department of Energy) and other agencies have appeals panels (National Security Agency, Central Intelligence Agency) staffed by agency employees which hear each case. Additionally, other federal agencies appoint one adjudicator to hear informal appeals. To this end, each federal agency is different.

Regardless of format, a security clearance lawyer will prepare a client for their testimony and will prepare witnesses for their supporting testimony and potential cross-examination or questioning (where the forum permits in person witnesses). It is also important to note that in many forums the government will be represented by their own attorney and it is very important for an individual to have their own counsel in the proceedings.  We find that personal appearances have the greatest potential to reverse negative findings. The ultimate appeals officer, whether it is an administrative judge, an appeals panel or a hearing officer often finds that the most important evidence in a case is to directly hear from the individual involved.  A security clearance attorney will prepare a client for the questions that may arise and the best manner in which to rebut or mitigate them.

Contact Us

When a federal employee, military personnel or government contractor is facing security clearance concerns it is important to obtain legal advice and legal representation early in the process. Our law firm advises individuals in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

Federal employees are often subject to strict guidelines regarding outside employment, particularly when it comes to maintaining a security clearance. While outside employment can be an important source of income and professional development, it can also present significant risks for federal employees, especially those holding sensitive positions. Engaging in certain types of outside employment or business activities may raise concerns regarding conflicts of interest, loyalty, or national security, potentially leading to disciplinary action or even the loss of security clearance.

The Risks of Outside Employment for Federal Employees

Outside employment can present risks to federal employees, particularly those holding security clearances. When engaging in outside work, federal employees must ensure that their activities do not conflict with their primary duties, create ethical concerns, or jeopardize their security clearance. Several factors can raise red flags when it comes to outside employment, including:

1. Conflict of Interest

A conflict of interest arises when an employee’s outside employment interferes with their official duties or compromises their impartiality in performing government work. For example, if a federal employee works for a private company that does business with the government or competes with their agency, it may create a situation where the employee’s judgment could be compromised. The Standards of Ethical Conduct for Employees of the Executive Branch (5 C.F.R. Part 2635) set forth by the Office of Government Ethics (OGE) prohibit federal employees from participating in matters where they have a financial interest or outside employment that conflicts with their official duties. Concerns in this area can lead to both security clearance and disciplinary concerns.

2. National Security Concerns

For employees holding a security clearance, outside employment in areas related to national security, foreign governments, or private entities with sensitive business interests may raise national security concerns. This is particularly relevant for employees working in defense, intelligence, or law enforcement. For example:

• Foreign Influence: If an employee holds outside employment with a foreign government or company, there may be concerns about the employee’s loyalty to the U.S. government, and whether they could be influenced or coerced by foreign entities.
• Exposure to Sensitive Information: Federal employees working in jobs that involve classified information must be cautious about inadvertently sharing sensitive details with outside employers, even in unrelated fields.
• Foreign Financial Interests: Employees with outside business ventures in countries that may pose a national security risk could be perceived as vulnerable to exploitation or bribery.

3. Time and Commitment Conflicts

Another concern for federal employees engaging in outside employment is whether it interferes with their primary duties. Federal employees are generally expected to devote their full attention to their government responsibilities, and outside employment that interferes with their job performance may lead to disciplinary action. For employees with security clearances, any appearance of negligence or divided loyalty can be problematic.

The Security Clearance Review Process: How Outside Employment Is Considered

Outisde employment can come up during the security clearance process at various times such as when an initial application for a clearance is submitted, during a reinvestigation, or based on the notification of a concern regarding outside employment by an Agency.

When determining whether a federal employee’s outside employment activities will affect their security clearance, the government looks at several factors. The Adjudicative Guidelines for Determining Eligibility for Access to Classified Information provide a framework for evaluating the security risks associated with outside activities. There are several security guidelines that may be at issue based on outside employment. Specifically, the guidelines under Guideline B (Foreign Influence), Guideline E (Personal Conduct), and Guideline L (Outside Activities) all may pose an issue for a clearance holder engaged in outside employment.

Factors Considered in the Security Clearance Process:

• Financial Interests: Whether the outside employment involves financial interests that conflict with the employee’s government position or present a risk of bribery or exploitation.
• Foreign Connections: Any financial, business, or familial connections to foreign governments or entities that could pose a conflict of interest or lead to susceptibility to foreign influence.
• Proper Disclosure: A failure to properly disclose outside employment to an Agency and during the clearance process can lead to security concerns about the outside activity and the individual’s integrity and trustworthiness. Proactive disclosure of such information can be afforded mitigating value during a security review of such outside employment.

Steps Federal Employees Can Take to Protect Their Security Clearance

Federal employees must be proactive when it comes to outside employment and take steps to ensure their security clearance remains intact. Here are some best practices for navigating outside employment without jeopardizing your security clearance:

1. Seek Approval from Your Agency

Before engaging in outside employment, federal employees must often seek prior approval from their agency’s ethics office or security office. Many agencies require employees to submit a Request for Approval of Outside Employment (often as part of an annual financial disclosure process) to ensure there are no conflicts of interest or security concerns. Agencies may approve or deny outside employment based on the potential risks to national security or other ethical considerations.

Even if the outside job seems unrelated to the employee’s government duties, it is important to disclose it to avoid later complications. This step ensures transparency and can protect the employee if their outside employment is ever questioned.

2. Review Agency Guidelines and Ethics Rules

Employees should familiarize themselves with their agency’s policies on outside employment. Federal agencies often have specific guidelines that govern permissible outside activities and require employees to adhere to ethical conduct standards. Understanding these rules can help prevent inadvertent violations that may affect their clearance.

3. Avoid Conflicts of Interest

Federal employees must avoid engaging in outside employment that could create a conflict of interest with their official duties. This includes working for companies that do business with the government, having financial interests in entities that are regulated by the employee’s agency, or accepting positions that could impair the employee’s impartiality. Employees should also be cautious when engaging in business ventures or outside employment in industries that could pose national security risks, such as defense contracting or intelligence.

4. Consider Consulting Legal Counsel

Given the complexity of rules surrounding outside employment and security clearances, it may be wise for federal employees to seek legal counsel before accepting outside employment. An attorney with experience in federal employment law or security clearance law can offer guidance on potential risks, assist with disclosure processes, and help craft a strategy to address any concerns raised by outside activities.

Other Consequences of Violating Outside Employment Rules

Failing to comply with agency guidelines regarding outside employment can lead to other severe consequences beyond security clearance actions. The most likely other consequence would be disciplinary action, including suspension, demotion, or termination, depending on the severity of the violation. While outside employment can provide federal employees with valuable opportunities, it comes with inherent risks, especially for those holding security clearances. Federal employees must be vigilant and aware of the potential for conflicts of interest and national security concerns. By seeking approval for outside employment, adhering to ethical guidelines, and consulting with legal counsel when necessary, federal employees can reduce the likelihood of disciplinary action and protect their security clearance from being jeopardized.

Contact Us

Berry & Berry, PLLC advises and represents individuals on issues involving the proper completion and submission of security clearance applications, background investigations, security clearance denials and revocations, and federal employee disciplinary matters.  Please contact the firm at (703) 668-0070 or www.berrylegal.com to schedule an initial consultation with an experienced attorney who is familiar with the security clearance and disciplinary process.

This article discusses the security clearance appeals process for government contractors applying for clearances (or attempting to keep them) with the Central Intelligence Agency (CIA). As we have discussed in other articles, the U.S. Government security clearance process is not administered by one federal agency, but individually by each one.  The clearance appeals process generally falls into 2 main groups of federal agencies (with some exceptions), one run by the Intelligence Community (IC) and those run by the Department of Defense (DoD). That said, each federal agency has their own internal security clearance process with their own variations. The CIA is one of those federal agencies with its own, very unique, security clearance process. As noted above, in addition to security clearances processed by the CIA, many other federal agencies maintain their own procedures and personnel that process their own security clearance decisions for federal employees (e.g. NGA, DIA, DOD, NRO, DOJ, etc). It is important to be familiar with each process when appealing an adverse security clearance decision from that particular agency. This article, as noted above, focuses on security clearance appeals for government contractors at the CIA.

The Clearance Process at the CIA for Contractors

The security clearance process at the CIA for government contractors is different than the one utilized for DoD employees, but based on many of the same underlying clearance principles and the same Executive Order (EO 12968). The following illustrate the usual steps in the security clearance review process for those seeking to obtain or retain a CIA security clearance when they are faced with security clearance concerns. The CIA security clearance process is managed by their clearance appeals office. Contractors have the right to counsel before the CIA during the different stages of the security clearance appeals process.

First Step: Notification of Security Disapproval

When a clearance holder has a security clearance issue with the CIA, they will normally receive a notification of disapproval letter, usually sent on blank letterhead, listing the security concerns at issue and other rights in a Memorandum. The specificity of the security concerns at issue varies at this agency, so it is important to obtain as much information as possible in order to address the concerns.

Review rights generally include the ability to obtain documents (i.e the right to request the Investigative File) upon which the revocation or denial is based within 10 days (this is subject to change by the CIA) and the ability to request a personal appearance during that timeframe. A personal appearance is an administrative hearing before a panel of clearance adjudicators (or a single adjudicator). An individual can also respond solely in writing and waive the personal appearance. A personal appearance is highly recommended in most types of cases before the CIA. When a personal appearance is requested, the contractor is placed in line for the hearing process, which can take a bit of time.

Second Step: Receipt and Review of the Investigative File

If the individual has requested the Investigative File from the CIA, the individual will be provided with the documentation relied upon by the agency in denying the request for security access. Many portions of the file may be redacted (in some cases there will be many redactions) but one can usually understand the issues that need to be addressed. When the Investigative File is finally received, it is important to prepare to respond with a written response and to start considering the issues for the personal appearance at the CIA as the time for the presentation occurs.

Third Step: Responding to the Security Concerns in Advance of the Personal Appearance

When the Investigative File is finally received, the individual will generally want to provide a written response in preparation for the personal appearance. It is usually important to provide supporting documents, in advance, to give the adjudicator(s) time to review them in advance of the personal appearance. The documents usually need to be provided 2 weeks prior to the scheduled appearance. The CIA follows the Adjudicative Guidelines set forth by the Directive of National Intelligence in ICPG 704.2 and Security Executive Agent Directive (SEAD) 4 when reviewing security clearance matters. Generally, the focus of the appeal should be on information that disputes the events listed that existed, but was not known, at the time of the clearance denial.

Fourth Step: The Personal Appearance Meeting

The next step in the CIA security clearance appeals process is for the individual to present their response to the adjudicator(s) during their personal appearance, typically held at agency facilities. When the CIA decides to hear the personal appearance, the individual or their counsel will be contacted by a CIA attorney or other representative in advance to schedule the presentation. The personal appearance should be done with the assistance of an attorney. These types of presentations typically take about an hour in length and are usually attended by 3 adjudicators or a panel of 3 individuals, with one of these individuals serving as the adjudicator.

It is usually important to arrive early to ensure that the individual is able to make it to the meeting room in time. The individual seeking to overturn the initial decision should be prepared to respond to the concerns at issue and also for potential questions by the adjudicators. The adjudicator(s) will introduce themselves at the start of the hearing, explain the process and then permit the individual and/or their attorney to present the personal appearance.  The adjudicator(s) then take notes and makes a record of the response for the agency’s later review and consideration and for the individual’s permanent security record. It is important to make a full record in the written response and at the personal appearance for both the immediate appeal and also for future security clearance applications.

Fifth Step: Second Step Appeal

Generally, the best attempt to overturn the disapproval is at the initial stage. However, in some cases it is important for the individual to appeal an initial adverse decision (either an adverse decision from a written response or an adverse decision issued after the personal appearance) to the next step of the clearance process. The appeal, if filed, should generally be filed within 30 days of receipt of the initial unfavorable decision. The odds on appeal are typically less than during the initial stage, so it is important to address clearance issues as early as possible.

Sixth Step: Reapplication After a Year

If a security clearance by the CIA is denied, then the individual usually has to wait a 1-year period from the final decision in which to re-apply. Not all security issues can be resolved or mitigated in a year, and can take more time, but the reapplication process can ultimately lead to obtaining a CIA security clearance if previously denied.  It is important to keep in mind that an individual contractor cannot re-apply for a new security clearance with the CIA while still in the appeals process and may have to withdraw the appeal in order to re-apply.  It is important to consult with counsel on this issue.

Contact Us

When an individual is facing security clearance issues at the CIA or before another federal agency it is important to obtain legal advice and potential legal representation. Our law firm advises individuals in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

Review of Formal Complaint After Submission

After it is submitted, the Agency will begin to review the grounds of the EEO complaint. The Agency will then either accept the claims for investigation or dismiss some or all of them based on procedural grounds. In accepting claims, the Agency will send you an acceptance letter listing the claims to be investigated. In the letter, the Agency will spell out the next steps in the EEO process. The letter will also state that the investigation must be completed within 180 days. 

It is important to have federal employee EEO legal representation in these cases.

Dismissal of Claims

If the Agency dismisses all or a part of a complaint, the federal employee has options.
 If the Agency dismisses the EEO complaint, it must issue a final decision. The Agency should clearly set forth the reasons for dismissing the complaint. The Agency will provide the complainant appeal rights to the Equal Employment Opportunity Commission (EEOC) where an appeal can be filed.

Acceptance of Claims and Investigation

If the Agency accepts a claim, it will initiate an investigation into the EEO complaint. An investigator will be appointed. These investigators can be in house federal employees or government contractors. Typically, the appointed investigator will contact you and ask you to provide some responses to questions about your EEO complaint. The investigator may also ask for documents or other supporting materials for your complaint.

What Does the Investigator Do?

Once the investigator is appointed, they are authorized to conduct the EEO investigation for the Agency. Investigators are authorized to administer oaths. In conducting their investigations, investigators use many different methods to conduct the investigation. These include affidavits, interviews, interrogatories or other methods to obtain facts about the EEO complaint.

The investigator will also ask for this type of information from others named in the Complaint or who are witnesses. The Agency will then conduct this investigation into the claim(s) and issue a Report of Investigation. This will be issued approximately 180 days after the formal complaint was filed. Federal Employee EEO investigations can include a variety of methods such as interviews, requests for responses to questions, and/or affidavits. The process varies by Agency and investigator. The investigative process is considered to be non-adversarial and often conducted by a third party contract investigator.

Rebuttals

In some cases, after the Complainant’s statement and responsive statements are taken, the investigator will want a rebuttal statement. This is just a statement responding to the information that was provided by one of the witnesses in the case.

Completion of Investigation Process

Federal agencies are required to complete an investigation within 180 days of the filing of a formal complaint. If the complaint is amended or consolidated with another complaint, the investigation must be completed 180 days after the filing of the last complaint or no later than 360 days after the filing of the original complaint, whichever is earlier.

Contact Us

Our law firm represents and advises federal employees in EEO complaint investigations. If you need legal assistance regarding an EEO complaint or other employment matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.