Federal employees who are serving a probationary or trial period often have fewer job protections than permanent federal employees. However, probationary status does not mean an employee has no rights at all. In certain situations, probationary employees may have legal protections, procedural rights, or alternative avenues to challenge an adverse action.
This article explains what probationary federal employees need to know about their rights, limitations, and potential legal options if they are facing termination or other adverse action.
What Is a Federal Probationary Period?
A probationary period is a trial phase of federal employment during which an agency evaluates an employee’s performance, conduct, and suitability for continued employment.
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Competitive service employees generally serve a one-year probationary period
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Excepted service employees may serve a trial period, which can be one or two years, depending on the appointment authority
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Time spent as a contractor or intern typically does not count toward probation
Also, keep in mind that due to new Office of Personnel Management (OPM) regulations in June of 2025, probationary employees cannot move to full tenure status without affirmative approval by their agency. During the probationary period, agencies have broader discretion to remove employees than they do once probation is completed. However, some federal supervisors abuse this process and attempt to terminate employees not on actual merit, but personality dislike or illegal motives.
Can a Federal Agency Terminate a Probationary Employee?
Yes. In most cases, a federal agency may terminate a probationary employee with limited procedural requirements and without providing full appeal rights to the Merit Systems Protection Board (MSPB) or OPM. The probationary appeals process is currently pending transition from the MSPB to OPM based on recent OPM proposed rules.
Unlike permanent employees, probationary employees generally:
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Are not entitled to advance notice of removal
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Do not receive a formal opportunity to respond
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Do not have full MSPB / OPM appeal rights
However, this discretion is not unlimited, and agencies must still follow applicable laws and regulations.
Do Probationary Employees Have Appeal Rights?
In general, probationary employees do not have MSPB or OPM appeal rights. However, there are important exceptions. Many of these rights and appeal procedures are being revised and may be undertaken by the OPM in the near future.
Limited MSPB or OPM Appeal Rights May Exist If:
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The termination is based on pre-appointment reasons, such as alleged falsification of application materials or conduct that occurred before federal service
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The termination is based on marital status or partisan political affiliation
In these narrow circumstances, a probationary employee might be able to file an MSPB appeal or OPM appeal (when the process is finalized) challenging whether the agency followed the law. Previously, these types of appeals were solely handled by the MSPB.
Other Legal Protections for Probationary Employees
Even when MSPB appeal rights are limited, probationary employees may still have other legal avenues available which may provide a better opportunity to litigate a wrongful probationary termination.
Equal Employment Opportunity (EEO) Rights
Probationary employees are protected from discrimination based on:
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Race
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Color
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Religion
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Sex (including pregnancy and gender identity)
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National origin
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Age (40 and over)
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Disability
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Genetic information
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Retaliation for prior EEO activity
A probationary employee who believes their termination was discriminatory may pursue an EEO complaint, regardless of probationary status. Any new changes do not effect the EEO process.
Whistleblower Protections
Federal employees — including probationary employees — are protected from retaliation for making protected disclosures under the Whistleblower Protection Act.
Employees who believe they were terminated for whistleblowing may seek relief through the U.S. Office of Special Counsel (OSC) and ultimately the MSPB.
USERRA Protections
Federal employees in a probationary status are also protected against military discrimination. The Uniformed Services Employment and Reemployment Rights Act (USERRA) permit these individuals to appeal probationary terminations based on military discrimination. If the military discrimination claim arises under USERRA, the MSPB has jurisdiction regardless of probationary status.
Common Agency Mistakes During Probationary Terminations
Agencies sometimes make errors that affect a probationary employee’s rights, including:
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Terminating an employee whose probation has already ended
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Improperly classifying the employee’s appointment status
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Failing to follow required procedures for pre-appointment removals
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Terminating an employee based on whistleblowing
- Terminating an employee based on illegal discrimination
These issues can significantly affect whether appeal rights exist.
Examples
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Example 1: An employee removed for alleged resume falsification may be entitled to appeal to either the MSPB or OPM.
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Example 2: An employee terminated shortly after filing an EEO complaint may have a retaliation claim.
- Example 3: An employee discloses fraud and is terminated in their probationary period as retaliation.
Each case depends on its specific facts and timing.
Changes Likely Ahead in 2026 and Beyond
As noted, new changes have been proposed by the Government in regards to attempt to limit or change probationary rights. These new policies started in 2025 and have been proposed for 2026. Expect additional changes to the probationary appeals process in the future. It is expected that OPM will take on more of the probationary period appeals in the future. These changes do not affect discrimination or whistleblower appeals involving probationary employees.
Frequently Asked Questions
How long is a federal probationary period?
Most competitive service employees serve a one-year probationary period, but some excepted service positions require a longer trial period. Additionally, an agency must affirmatively approve the transition from probationary to tenured employee.
Can a probationary employee appeal a termination to the MSPB or OPM?
Usually no — but limited MSPB or OPM appeals may be available in specific circumstances, and other legal claims may still exist like EEO or Whistleblower complaints.
Does probationary status mean I have no rights?
No. While rights are limited, probationary employees are still protected from discrimination, retaliation, and certain prohibited personnel practices.
Why Legal Guidance Matters
Because probationary rights are limited, currently changing and highly technical, timing and classification issues are critical. Employees may lose potential claims simply by missing deadlines or misunderstanding their status.
An experienced federal employment attorney can help determine whether:
- OPM appeals exist if MSPB appeals do not
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An EEO or OSC claim is appropriate
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The agency followed required procedures
Conclusion
Federal probationary employees have fewer protections than permanent employees, but they are not without rights. Understanding the scope and limits of those rights is essential when facing termination or other adverse actions.
If you believe your probationary termination violated federal law or merit system principles, seeking timely legal advice may help protect your interests.
We represent Virginia employees in employment matters. When an employer seeks to use a polygraph examination in an employment context you may need legal advice. We are often asked about whether or not a Virginia employer can require an applicant or employee to take a polygraph examination in regards to hiring or retention decisions. The answer, while generally no, has a number of implications for both Virginia employees and employers. It is important to obtain legal counsel on these issues prior to taking a polygraph examination when issues arise.
This article discusses some of the issues that can arise in the context of attempting to require Virginia employees to take a polygraph examination related to their employment.
For Virginia employees, there are both federal and state restrictions on polygraph usage. It is important to know both areas of law.
What is the Employee Polygraph Protection Act
On the federal level, Congress enacted the Employee Polygraph Protection Act, 29 U.S.C. §§ 2001- 2009 (EPPA of Polygraph Act). The EPPA provides for strict limits on the use of polygraphs in the workplace for employees and applicants. The EPPA bars most types of employers in Virginia (and other states) from requiring or even suggesting that a current employee or job applicant take a polygraph examination. The law also prohibits employers from utilizing the results of any polygraph examination.
The EPPA does not necessarily apply to Virginia employees who work for Federal, State and local governments. Polygraph examinations can also often be part of the legal processing of a federal security clearance. It also does not apply to private sector employees engaged in security-related activities (e.g. Security Guard, Armored car services). The Polygraph Act also permits polygraph testing, subject to restriction, of certain types of employees who are reasonably suspected of involvement in workplace theft or embezzlement that resulted in an economic loss to the employer. The Department of Labor has provided a good summary of the law under the EPPA act here.
When are Polygraph Examinations Permitted for Virginia Employees?
When polygraph examinations are permitted for private sector employees in Virginia, there are numerous strict rules that most be followed. These include “including the right to a written notice before testing, the right to refuse or discontinue a test, and the right not to have test results disclosed to unauthorized persons.”
The courts in Virginia, federal and state, have not had occasion to rule on these issues too often, but these cases likely get resolved early due to employer liability. Harmon v. CB Squared Servs., 624 F. Supp. 2d 459, 472-472) (E.D.Va., Jan. 29, 2009) (Former employee was asked to submit to polygraph examination by employer and was told that his examination revealed deception; employer not granted dismissal of case because facts show that the employer had violated EPPA by causing the employee to take a polygraph examination and by referring to the results of the examination at the meeting to discuss the test results).
Should an employer be found liable by a court under the EPPA for not following the law regarding polygraph use, the employer can be held liable for: (1) penalties up to $10,000; (2) lost wages, benefits and (3) attorney’s fees. There is also equitable relief where an individual can seek reinstatement or lost promotions as a result of the violations of the EPPA. In other words, employers need to be extremely careful when considering the use of polygraph examinations under the EPPA.
Virginia State Polygraph Protections
In the Commonwealth of Virginia, there are also additional protections for employees with regards to polygraph examinations. Pursuant to the Virginia Code, the only major restriction on employer polygraph testing in Virginia involves the subject matter of such testing. Virginia bars questions about an applicant’s prior sexual activities unless it is related to a conviction of such a criminal violation of the laws of Virginia.
The 1977 Virginia law, in Va. Code Ann. § 40.1-51.4:3, titled the Prohibition of use of certain questions on polygraph tests for employment, states as follows:
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One of the more usual types of federal employee retirement matters that our firm handles involves the representation of federal employees in the disability retirement process before various federal agencies and the Office of Personnel Management (OPM). Federal employees thinking about filing for disability retirement should consider the following issues as they debate whether or not to proceed with an application for disability retirement.
How Serious are the Federal Employee’s Medical Disabilities and are They Linked to Duties in Their Position Description?
When making a federal employee disability retirement decision OPM evaluates a federal employee’s continued ability to work with their medical condition in the context of the duties described in their position description. OPM uses the phrase “useful and efficient service in your current position” to describe the degree to which a federal employee can carry out their job duties. Basically, the issue is whether or not the medical issue or disability prohibits a federal employee from performing their current duties. This is distinguished from being too disabled to work any position.
If the medical disability is not considered serious enough, or not fully supported by medical documentation and evidence, then OPM may deny the disability retirement application. However, there is a lot that a federal retirement attorney can do to increase the chances of submitting a successful application.
How Long is the Medical Disability Expected to Last?
The duration of a medical disability is very important when OPM makes a disability retirement decision. OPM generally requires that a medical disability be expected to last at least 1 year in duration. When considering whether to file for disability retirement, it is important for a federal employee to consider the expected length of the individual’s medical disability. Disabilities with shorter durations can be problematic for federal employees in the disability retirement process and could result in the denial of the application.
Does the Federal Employee’s Case Fall Under the Bruner Presumption?
It is quite often the case that a federal employee may be facing removal or potential removal related to their disability. If so, that can provide strong support for approval of a disability retirement application by OPM. This is often referred to as the Bruner presumption, after the case of Bruner v. OPM. Essentially, the Bruner case stands for the proposition that if a federal agency removes a federal employee for the medical inability to perform their duties than the Agency must disprove an employee’s entitlement.
Can the Federal Employee Survive on a Reduced Annuity?
If a federal employee is considering filing for OPM disability retirement, it is important to understand that this type of retirement can provide a federal employee with a lower monthly retirement annuity in comparison to full retirement at full years of service and age. Therefore, we recommend that a federal employee consults with a financial advisor about the impact of a potentially reduced annuity before filing for disability retirement. The very good news is that an individual approved for disability retirement can generally work again in the private sector (or for state or other local governments) (not in other federal employment positions) and supplement their income (usually up to 80% of their prior salary) without losing their disability retirement income.
Are There Reasonable Accommodations that can be Made to Allow the Federal Employee to Continue to Work?
Sometimes a federal agency will work with an employee to provide them with a reasonable accommodation (RA) (i.e., change in duties, assignments, hours, telework or other adjustments) that can make the employee’s current position and medical condition workable and thereby avoid the disability retirement process. This, however, has its limitations.
As a part of the OPM disability retirement process, a federal agency is required to certify that it is unable to accommodate your disabling medical condition in their present position. The federal agency must also certify that it has considered a federal employee “for any vacant position in the same agency, at the same grade or pay level, and within the same commuting area, for which [you] qualified for reassignment.” Federal agencies typically do not have an issue with such certifications and generally assist federal employees who are seeking disciplinary retirement.
Does the Federal Employee have Medical Support for Disability Retirement?
For federal employees, proper medical documentation and evidence is the most important consideration when filing for disability retirement. We also find that physicians will usually help their patients in the disability retirement process. When OPM reviews disability retirement applications, they rely heavily on a federal employee’s medical evidence. As a result, physicians and their medical opinions are crucial in the disability retirement application process with OPM.
OPM will require physicians’ statements about a federal employee’s medical issues, and these physician statements can either make or break the potential success in the disability retirement application process. It is important for a physician to understand a federal employee’s position description and how their disabilities interfere with their duties. It is also not that uncommon for a federal employee to be told by their physician that they should consider disability retirement.
Does the Federal Employee Have Enough Time in Service to be Eligible for Disability Retirement?
Generally, most federal employees fall under FERS, which only requires 18 months of creditable federal service before one is eligible for disability retirement. For those in the CSRS system, then 5 years of federal service is required prior to eligibility. Most individuals fall under FERS and generally have the ability to file for OPM disability retirement.
Does the Federal Employee Have Time to File for Disability Retirement?
Federal employees must file for disability retirement within 1 year of separation from federal employment. This is critical. There are some very rare exceptions, but OPM must have a federal employee’s application in hand within that 1-year period or there is a substantial risk of denial on that basis alone.
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If you are in need of assistance in the federal employee disability retirement process please contact our office at 703-668-0070 or through our contact page to schedule a consultation.
Financial security concerns are the most common issues which can result in the inability to obtain or the loss of a security clearance. As a result, it is very important that when a clearance applicant or holder runs into financial issues that they have a security clearance attorney assist and them with respect to the security clearance process. In security clearance cases, financial issues are generally referred to as Guideline F cases. In Guideline F cases, the government’s concern is generally focused on how a person has handled his or her finances and/or his or her vulnerability to financial manipulation given a pattern of overspending or debt.
Avoid Security Issues Involving Financial Concerns
The criteria in Guideline F cases has somewhat changed over the last year with the introduction of Security Executive Agent Directive (SEAD 4) (the new Adjudicative Guidelines governing security clearances). This article discusses some potential tips for those facing financial concern issues in the context of a security clearance matter.
8 Tips to Consider
The following are 8 tips to help an individual minimize their risk of losing a security clearance on the basis of financial considerations:
1. Stay Current on Debts and/or Make Arrangements with Debtors
Most security clearance clients seek our assistance when they have had multiple bills that are past due, delinquent, in collections, or have been charged off. In some cases, the debts have been ignored. In Guideline F cases, the existence of multiple, unpaid debts seems to be the most usual reason for the loss or denial of a security clearance. It is important to gain control of your finances in such situations in order to attempt to keep your security clearance.
2. Pay and File your Taxes
Individuals in tax trouble or who fail to pay and/or file their taxes take a big risk in losing their security clearance. Tax issues tend to be viewed as more significant for security clearance purposes than regular debts because they are owed to the government. If outstanding taxes or tax liens are too much for the individual to pay off all at once, it is important to try to work out a resolution plan with the IRS or state tax agency and show good faith towards resolving these debts in order to keep or obtain a security clearance.
The government takes a very skeptical view of a clearance holder or applicant that has not resolved their taxes or at least attempted to do so. SEAD 4 also provides a new defense to mitigate a security clearance financial issue involving taxes when there is evidence that the taxpayer has sought to resolve the tax issues.
3. Keep an Eye on your Credit Report
Often times, an individual has encountered difficulties in the security clearance process because incorrect information is listed on his or her credit reports. Errors in credit reports are quite common. However, these errors can also lead to security clearance denials or other issues being raised by the Government. As a result, it is important for an individual applying for or holding a security clearance to keep a watchful eye on his or her credit report for errors and potential problems.
If a debt is inaccurate, it is important for an individual to dispute the debt as soon as possible and keep records of all disputes and efforts to demonstrate that a debt does not belong to an individual. Sometimes, we have had clients write letters to supposed debtors asking them to show proof of debt.
4. Work with Creditors
It can be easy to ignore a creditor, especially where the debt was part of a dispute, but it is always better for a clearance holder or seeker to get ahead of his or her credit problems than to wait until he or she receives notice of a possible denial of a security clearance. An individual who recognizes a debt problem or allegation early and works towards resolving it early and before a clearance issue is raised tends to be given more credit towards the granting of the clearance as opposed to an individual who starts the process after he or she receives notice of the potential loss of the clearance.
Even if a creditor is non-responsive, it is important to try multiple times to communicate with the creditor in an effort to resolve these issues. The key is to document (and keep copies) of the individual’s attempts to document attempts to resolve a debt.
5. Don’t Overspend
Having too many debts can put an individual at risk of losing a security clearance. If an individual is living beyond their means, this can be a security concern and potential coercion. To the government, overspending can indicate that the individual is living beyond his or her means or could be susceptible to foreign financial assistance.
6. Credit Counseling and Classes Can Help
If an individual falls behind in his or her debts, or taxes it is still important to show how that individual is working (or has worked) to get back on a healthy financial track in order to alleviate concerns about the individual’s ability to hold a security clearance. Taking meaningful credit classes or engaging in credible credit counseling can help mitigate security concerns by showing the affirmative steps taken by an individual to get better control over his or her finances and be responsible with their finances.
7. Report Major Financial Issues to Security Officers
If and when major financial issues arise, it can be important to report them, in advance, to an individual’s security officer. Doing so in appropriate situations can be used as evidence of mitigation for security concerns. For example, if a bankruptcy arises, that is an important issue that should be raised with a security officer.
8. Demonstrate Financial Stability
When and if security concerns under Guideline F arise, be prepared to demonstrate that the individual lives within their means, has developed a policy for dealing with spending and debt (e.g. budget planning). The more that an individual can show that they live within a manageable financial lifestyle, the better.
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When facing financial consideration security concerns it is important to have the assistance and advice of counsel. We represent individuals in security clearance matters. If you need assistance with a security clearance issue, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.
If you are a federal employee or government contractor whose security clearance is under review and you are in the process of having your case heard before the Defense Office of Hearings and Appeals (DOHA), there are a number of considerations that should be made as you move towards the hearing phase. Before DOHA, an applicant for a security clearance (or clearance holder) should be well prepared, in advance, to present their case at a hearing. You should think of a DOHA hearing as less formal litigation but very similar to appearing in court. There is a judge and the government is represented by an attorney who is referred to as Department Counsel. You should be represented by a security clearance lawyer.
It is often the case that individuals come unprepared for a DOHA hearing and wish they had consulted a security clearance attorney earlier. Having legal counsel represent you in this forum is highly advised. The following is a typical chronology of a hearing before DOHA and an administrative judge. Keep in mind there are some slight differences in the process between federal employee and government contractor clearance proceedings before DOHA.
Chronology of a DOHA Appeal
The process and procedures for a DOHA administrative judge hearing vary, depending on each case, and certain procedures can also vary between individual judges. The following is a chronology of what you might expect in a typical DOHA hearing case:
Pre-Hearing DOHA Process
1. The DOHA Hearing process generally starts when the individual receives notice from a government attorney at DOHA introducing themselves and indicating that they plan to use certain exhibits against the person during the hearing. This will begin the process of setting eventually setting the hearing date and receiving notice of the administrative judge assigned.
2. Prior to the date of the DOHA hearing, the clearance applicant (if in person) should ensure that they have DOHA contact information available to ensure that they have an escort to the hearing room, which, in the Washington, D.C. area is in Ballston, Virginia. You will want to arrive early with your witnesses to ensure that you are on time for the proceedings and have enough time to clear security. Also, keep in mind that most hearings have moved to a virtual platform so very few hearings are in person these days.
3. The Applicant must make sure that they have all of their exhibits submitted to the Department Counsel in advance (so that they have a chance to prepare their case), according to DOHA rules. These exhibits will be reviewed by Department counsel and then the government will have the opportunity to object or comment on them before they are entered into the hearing record. Judges also require advance submissions of exhibits so that they can prepare to hear the case.
Start of the DOHA Hearing
4. When you enter most formal DOHA hearing rooms, typically the applicant for a security clearance will on the left hand side of the hearing room / table and the Department Counsel (if there is one) will sit on the right. The court reporter will be to the right of the administrative judge and the witness stand will be on the left. As noted above, DOHA has also moved recently to permit most of the hearings to take place virtually through Microsoft Teams which has changed some of the dynamics for those cases.
5. The witnesses (other than the applicant for a security clearance) will almost always be sequestered before they testify. They will then be escorted into the hearing room to testify, one at a time. Again, in virtual settings, witnesses are sequestered electronically (cannot participate or view virtual hearing until their testimony). When the judge is ready to hear a virtual witness they are allowed into the electronic hearing room.
6. The witnesses, in turn, will usually testify to the left of the DOHA administrative judge (when observing the procedures from the applicant’s table). If held online, this really doesn’t apply.
7. Typically, the administrative judge will hear any procedural issues first, from both sides, before starting the hearing. There could be witness issues or evidentiary issues which need to be discussed before the start of the formal proceedings.
8. Exhibits will then generally be reviewed for marking and admissibility by the administrative judge. Typically, both sides have reviewed the other’s exhibits before the hearing and most exhibits are generally agreed to. While there is the ability to object based on evidence, this ability is more limited in a DOHA hearing.
Opening Statements and Testimony
9. A DOHA hearing will usually then start with opening statements if a security clearance applicant is represented by an attorney. The Department Counsel will often go first. The clearance applicant’s attorney will next offer their statement if they chose to do so.
10. Typically, while the Department Counsel usually presents their case first, they tend not to usually put on their own case but instead examine the security clearance applicant on cross-examination. In other words, their case will typically rely on information gained from cross-examining the security clearance applicant. As a result, the security clearance applicant or clearance holder will present their case first.
11. The first witness called by the applicant’s security clearance attorney will often be the applicant who is the most important of all of the witnesses and will usually take the most time of all of the witnesses in testimony. Since the security concerns principally involve the person at issue it makes sense that their testimony would take the longest. In other cases, the best strategy is to call the applicant last for testimony.
12. Following an examination by the applicant’s attorney, the government’s attorney and/or the administrative judge will question each witness. The examination will mostly center around the facts and issues related to the Statement of Reasons (SOR) or Intent to Revoke issued earlier in the case.
Closing Arguments and Extended Record
13. Once the witness testimony is complete, the parties may be asked to provide their closing arguments in the case. This typically takes the form of closing arguments, but written briefs, if a key legal issue is involved, are possible.
14. Following closing arguments, the record will be closed (unless extended for some reason – i.e. the need to extend the closing date for the submission of additional exhibits that are needed). If the hearing remains open for additional exhibits this can last an addition 2 weeks to 4 weeks, in general before the record is closing.
Following the DOHA Hearing
15. Usually, after 2-6 weeks, a copy of the transcript will be sent to the clearance attorney’s attorney or applicant and government counsel for review.
16. Depending on the employment status of the person seeking the security clearance at issue, federal employee or government contractor, the administrative judge will then issue a recommended or final decision. For federal employees, the security clearance decision issued will be a recommended decision for final review by a federal agency’s personnel security appeals board (PSAB). For government contractors, the administrative judge’s decision issued is final, but the losing party has the opportunity to appeal to DOHA Appeal Board.
17. Depending on the type of employment involved, if an employee is denied a security clearance, in many cases, depending on circumstances, they can re-apply through the reconsideration process a year later.
18. Even if a difficult security clearance case is not won in the initial appeal, depending on the individual circumstances, an individual can increase their chances of eventually obtaining a security clearance by challenging the initial negative determination and putting on a strong case. Doing so can lay the foundation for eventually recovering or receiving a security clearance.
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Each DOHA hearing before an administrative judge is unique so individuals are advised to have counsel represent them during the DOHA hearing process. If you need assistance with a security clearance issue, please contact our office at 703-668-0070 or here to schedule a consultation.
Understanding and applying the Douglas factors in federal employee disciplinary cases are critical. Our federal employment law attorneys represent federal employees in disciplinary actions. Douglas factors play a critical role in federal employee defense. There are typically two parts to a federal employee’s disciplinary case: (1) whether the federal employee committed the offense(s) charged; and (2) if so, what should the penalty be? One of the most important issues in defending a federal employee in a disciplinary case involves arguing for mitigation of the penalty. Arguing for mitigation generally means that we argue for the application of the Douglas Factors in attempting to mitigate (or reduce) disciplinary penalties issued in a case.
What are the Douglas Factors?
The Douglas factors, in federal employee cases, are also referred to generally as mitigating factors. These factors are used to argue that disciplinary charges for federal employees, even if true, should still result in a lower penalty than the one proposed. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981).
In Douglas, the Merit Systems Protection Board (MSPB) established 12 different factors that should be considered by a deciding official when evaluating the reasonableness of a disciplinary penalty for a federal employee. When our firm prepares an MSPB appeal for a federal employee client or in a case before a deciding official at the proposal stage it is important to understand all potential mitigating factors that might be applicable to a federal employee’s case. The Douglas factors can be used as mitigating or aggravating factors so it is important to fully understand the application of both types of legal arguments. In sum, it is critical for federal employees to understand the Douglas factors or to have counsel that does.
The following is a list of 12 Douglas factors that should be taken under consideration if a disciplinary action is warranted with explanations as to how they can apply to a particular federal employee case.
The 12 Douglas Factors
(1) The nature and seriousness of the offense and its relation to the employee’s duties, position, and responsibilities including whether the offense was intentional, technical, or inadvertent; was committed maliciously or for gain; or was frequently repeated.
The first Douglas factor, nature and seriousness of the offense, generally refers to the connection between the seriousness of the allegation and the position that an individual federal employee holds. This has often been considered one of the most important Douglas factors by the MSPB. For example, an allegation of dishonesty would be treated more seriously, under this Douglas factor, for a federal employee that holds a supervisory position. The first Douglas factor also looks at whether an allegation is part of a pattern of similar conduct (i.e. a repeat offense) and whether the misconduct at issue was intentional. Generally, this Douglas factor one tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty in a given case.
(2) The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position.
The second Douglas factor for federal employees involves the level of federal employee a case involves. It is traditionally used to attempt to aggravate a disciplinary penalty, as opposed to mitigate one. For example, a federal agency may attempt to use the particular position that a federal employee holds (e.g., high-level supervisor, such as GS-15) or type of position (e.g., law enforcement) as an aggravating factor. Many agencies may attempt to overplay their hand with this Douglas factor, but the MSPB will typically assess a position based on their own evaluation in some cases.
(3) The employee’s past disciplinary record.
The third Douglas factor involves an evaluation of a federal employee’s past record. The use of a federal employee’s past disciplinary record is one of the more commonly cited Douglas factors. We argue this Douglas factor in many cases. This factor is generally used for purposes of mitigation unless an employee has a past disciplinary action, which is cited. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty.
For instance, if the federal employee at issue has worked for the federal agency involved for 25 years and has never received prior discipline during that time this can be used as an argument in mitigating the disciplinary penalty. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. Sometimes, this third Douglas factor may be confused by federal agencies who attempt to aggravate a disciplinary penalty by basing it on previous misconduct that is not similar to the current action.
(4) The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability.
The fourth Douglas factor is one of the most often used arguments we use in support of mitigation of a disciplinary penalty. Generally, this argument is used by a federal employee to support a reduction in penalty based on their good record of service to their agency (e.g. past performance). For instance, in the disciplinary cases that we handle we might attempt to seek mitigation of a proposed disciplinary penalty by arguing that an employee’s outstanding performance (e.g., performance ratings, commendations/awards and letters from supervisors/co-workers) during their years of service support a reduction in a disciplinary penalty. Essentially, you are arguing that the proposed penalty should be mitigated based on having a good employment record.
It is important to argue Douglas factor four with supporting documentary evidence (e.g., commendations, awards, copies of performance records, letters of commendation, letters about performance by supervisors or members of the public, letters of support) as you move forward.
(5) The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s work ability to perform assigned duties.
Loss of supervisory confidence as a Douglas factor is typically used by Federal agencies in serious disciplinary actions to issue a more serious disciplinary penalty. This Douglas factor can be extremely helpful for purposes of mitigation where a federal employee has continued to work successfully in their normal position (i.e., not placed in light duty or administrative leave), over an extended period of time after the underlying allegation has occurred and been known. The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing so that they must have been trustworthy.
(6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses.
This Douglas factor comes into play when an agency picks and chooses different penalties for similar level federal employees. This occurs quite often. Usually the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by a federal agency between different federal employees. However, it is important to argue this Douglas factor where a prior federal employee case of a similar nature resulted in a lower disciplinary penalty. For example, in this type of case we would argue that you cannot issue a light penalty (e.g., 7-day suspension) for one federal employee and propose a 60-day suspension for another employee where the nature of the alleged conduct is so similar.
(7) Consistency of the penalty with any applicable agency table of penalties.
Federal agencies may attempt to base a proposed or final penalty on an agency’s table of penalties. A federal agency’s table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). We generally find that it is important to actually make sure that a proposed or a sustained final penalty has been listed appropriately under the agency’s table of penalties. On occasion, we have found that the agency has not followed their table of penalties or has listed the misconduct under the wrong offense in their table.
(8) The notoriety of the offense or its impact upon the reputation of the agency.
This Douglas factor generally involves how much the public has been advised of a federal employee’s alleged misconduct. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. Generally, this factor comes into play when a federal employee’s alleged misconduct has been reported by the media or in social media. We have also seen federal agencies use this Douglas factor to aggravate disciplinary penalties where other agencies (federal, state, local) have become aware of a federal employee’s misconduct, arguing that the employee’s actions have caused the federal agency’s reputation to somehow become tarnished. It is important to rebut these issues in a Douglas factor defense.
(9) The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question.
The ninth Douglas factor is important and is used in many cases where the policy that has been allegedly violated is not clear. The “lack of clarity” argument refers to the rules governing the underlying allegations at issue. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency policy. It can often be the case that a federal employee has been charged with a violation of agency rules but has not been properly trained with respect to these rules or regulations.
As a result, in defense cases our firm attempts to argue that the lack of clarity as to these rules warrants a reduction in a disciplinary penalty. For example, we might argue that the lack of a clear agency policy on Internet usage should result in mitigation of a penalty for an employee that has been charged with misuse of a government resources.
(10) The potential for the employee’s rehabilitation.
The potential for an employee’s rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. While some federal agencies attempt to use this Douglas factor in an effort to attempt to increase a federal employee’s disciplinary penalty, we have found that this factor is extremely helpful for purposes of a reduction in the employee’s penalty. For instance, if an employee has committed misconduct but fully discloses his or her actions prior to an investigator finding out about the misconduct, this can be deemed to be a significant mitigating factor.
Or in another case, if an employee has continued to work in their position over the course of a long period of time after the allegations are under investigation, this shows that the Agency continues to have trust in the employee and that the employee has continued to perform well despite the initial allegation. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action.
(11) Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, or harassment; or bad faith, malice or provocation on the part of others involved in the matter.
This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. Our firm often uses this Douglas factor to highlight personality conflicts in issuing proposed discipline by the proposing official or harassment by others in the workplace which led to the proposed discipline against a federal employee.
Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. This is the most important Douglas factor for federal employees that we see.
(12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
While not often used that often by federal agencies in their final decisions, this Douglas factor can and should be argued in significant disciplinary cases (e.g., proposed removals or significant suspension cases). We have argued, in cases for federal employees, that a different penalty (i.e., other than the one proposed by an agency) is more than adequate in a certain case and still serve the same disciplinary purpose as a more steep penalty.
For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. In another example, where a federal employee has been placed in an unpaid suspension over the course of several months while an investigation was pending, we would argue that this should be considered as part of the penalty served so that the ultimate penalty issued should be reduced. For this Douglas factor there are a number of ways in which to argue that a reduced penalty would serve the same purpose as something more serious (e.g. removal).
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Douglas factors are critical for federal employees defending against pending disciplinary actions or during the course of an MSPB appeal. As a result, it is very important for a federal employee to argue all relevant Douglas factors and provide documentary evidence (e.g. declarations, affidavits, performance ratings, SF-50s, letters of commendation) for the record.
Douglas factor issues vary significantly from case to case and federal employees should consult with an attorney who is knowledgeable about these issues prior to responding to a proposed disciplinary action or filing an appeal with the MSPB. Mitigation of a removal penalty can often save a federal employee’s career and avoid termination or forced retirement.
Berry & Berry, PLLC represents federal employees in these types of federal employment matters and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an initial consultation regarding Douglas factor and other federal employment issues.
Many new to the security clearance world are not familiar with Scattered Castles. Scattered Castles is a centralized database maintained by the U.S. Intelligence Community (IC). Its primary function is to track security clearances, accesses, and affiliations across various intelligence agencies. Unlike the Department of Defense’s Defense Information System for Security (DISS), which covers most military and defense contractors, Scattered Castles is unique to the Intelligence Community.
This database acts as a secure, internal database of who has been vetted for specific clearances, including Top Secret, Sensitive Compartmented Information (SCI), and Special Access Programs (SAP). It ensures that when an individual moves between agencies or projects, their clearance status and investigation history can be verified quickly without duplicating costly and time-consuming background investigations.
Scattered Castles is Important to Clearance Holders
For employees, contractors, and military personnel seeking to work in intelligence roles, Scattered Castles can be both beneficial and confusing:
- Streamlined Transfers: If you move from one intelligence agency to another, your clearance record in Scattered Castles can often (not always) help expedite reciprocity (recognition of your clearance by the gaining agency).
- Accountability: The database provides agencies with a way to confirm that you hold the correct level of access before being “read in” to certain classified programs.
- Limitations: Scattered Castles is not directly accessible to applicants or even all security officers. This can make it difficult for individuals to verify their own status without legal or security office assistance. Often, individuals can request, by themselves, or through counsel, a copy of their Scattered Castles records.
Common Misconceptions of the Database
A common misunderstanding is that Scattered Castles is strictly a database of holder negative information. In reality, it is not a disciplinary or derogatory database. It does contain information about access approvals and denials. However, it is a database that records security accesses/denials, dates and other relevant data for future review. Another misconception is that placement in Scattered Castles guarantees other employment opportunities. While the database can confirm your clearance level, employment decisions are still up to individual agencies and employers. There are often issues involving reciprocity that need to be resolved. The database does not fix these issues.
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The Scattered Castles database is one of the key aspects of the IC clearance process. For cleared professionals working in or seeking roles that involve access to classified intelligence, understanding how Scattered Castles functions, and where its limitations lie, can make a critical difference in career planning. If you believe your clearance status in Scattered Castles is preventing you from advancing, it is time to consult a security clearance attorney who can advocate on your behalf and guide you through the often-complex bureaucracy of intelligence community access.
An interesting topic in Virginia employment law involves an employee’s right to privacy within the workplace. While there have not yet been many specific laws enacted by the Commonwealth of Virginia governing employee rights in the workplace, this area of law is developing and changing almost as fast as technology is. In light of the advancements in monitoring technology available to employers, it is only a matter of time before we see more employee privacy issues addressed by the Virginia Legislature and our court system.
Thoughts on Employee Use of Employer Computers
In general, for a number of reasons we recommend that employees avoid using employer technology to conduct their own personal business. Virginia employers have been given a fair amount of leeway under existing laws to monitor employees in the workplace which means that employers can attempt access in reviewing their own computers and networks.
Regarding this issue, one of the biggest concerns that we have run across in representing employees in wrongful termination cases in Virginia involves an employee’s use or alleged misuse of an employer’s email, computers, network or Internet. Frequently, one of the first actions taken by an employer following a contentious termination is to conduct an examination of a former employee’s computer or prior Internet usage. The usual result is that the employer often claims that the former employee was conducting personal business or misusing the employer’s network. An employer may then claim that the employee violated Virginia’s Computer Crime Act, VA. Code § 18.2-152.3 or misappropriation or theft of trade secrets.
The best way for an employee to avoid these types of issues from arising either during or after employment is to not use the employer’s computer or network for any personal business. While it can be inconvenient to consult legal counsel over these types os issues with employers, it can also be very costly to get it wrong and pay the costs of legal defense when an employer wants to pursue a former employee in some way.
Email and Internet Monitoring of Employees
Employers that monitor employee email or Internet use should obtain legal advice ahead of time to avoid the risk of running afoul of criminal and other statutes. This cannot be overemphasized. That said, an employer in Virginia typically has the ability to monitor emails and Internet usage on their own networks. Employers should warn employees about monitoring in advance. We usually advise employees that they should expect that their work email account may be monitored and should not be used for personal business even if they have not been so informed of a company’s decision to monitor email.
Employers also need to be careful to avoid accessing employee private, non-work email accounts to which they may have access. For example, an employer should avoid attempting to inappropriately log into a former employee’s private email account that remains accessible from the employee’s former computer. Virginia also has enacted the Virginia Computer Invasion of Privacy Law. If an employer does something egregious in the course of monitoring email or Internet usage, then it could be subject to a potential claim under this law or perhaps a tort (personal injury) claim.
VA Code § 18.2-152.5 provides for privacy protections for all individuals for unauthorized access. Specifically, the privacy provisions of the Virginia Code provide that:
A person is guilty of the crime of computer invasion of privacy when he uses a computer or computer network and intentionally examines without authority any employment, salary, credit or any other financial or identifying information, as defined in clauses (iii) through (xiii) of subsection C of § 18.2-186.3, relating to any other person. “Examination” under this section requires the offender to review the information relating to any other person after the time at which the offender knows or should know that he is without authority to view the information displayed.
Telephone and Voice Mail
Some employers also monitor work-related employee telephone calls. A Virginia employer who wants to monitor telephone calls of an employee or voice mail messages must usually warn the employee in advance and the monitoring must be done in the scope of normal business. This is often accomplished by the employer at the beginning of employment, through policies listed in an employment contract or handbook. There are many pitfalls in monitoring telephone calls and voice mails of employees and this ideally should be done after receiving legal advice given that potential criminal issues could result if done incorrectly under both federal and Virginia wiretapping laws.
Security Camera Monitoring of Employees
With the widespread use and availability of small wireless cameras, a number of employers have attempted to monitor their employees using such technology. The courts have generally upheld an employer’s right to monitor its employees with security cameras so long as the monitoring is not particularly invasive. This has not yet been subject of major litigation in Virginia but it is no doubt forthcoming. In other jurisdictions, some courts have upheld employee privacy rights in situations where camera monitoring of employees has been very invasive such as with cameras in locker rooms or bathrooms. Many courts have permitted the use of such camera monitoring to the extent that employees are aware of it and can see the cameras, and that it is not misused.
Finally, Virginia does not yet recognize the traditional claim of invasion of privacy, which could help in employee rights claims when an employer goes too far. However, serious breaches of employee privacy can result in other types of tort claims for intentional infliction of emotional distress. Virginia case law and national trends continue to change and more employment rights and the ability to sue for egregious privacy violations are likely to develop in the future.
Social Media
In Virginia, state law puts prohibitions on employers attempting to inject themselves into an employee’s social media accounts. VA Code § 40.1-28.7:5 prohibits employers from seeking an employee’s social media login credentials or requiring an employee to add an employee, supervisor, or administrator to their social media contacts associated with their accounts.
Microchipping Employees as a Form of Monitoring
While definitely a potentially future issue, at least 1 employer was in the news for offering employees a microchip to facilitate employer tasks. Three Square Market, a technology company in Wisconsin asked workers to consent to having a microchip, about the size of a grain of rice implanted between their thumb and forefinger. Approximately 50 of the 80 company employees agreed to this procedure. The microchip will allow employees to check into work, access computers, open doors and purchase company food and drink.
This is clearly a major issue coming down the road, but is likely to take a number of years to develop through litigation. For instance, it could easily be the case where states vote to ban such a practice, in advance, or otherwise regulate it. For now, it is just something to keep in mind for the future.
Employee Monitoring Cases Nationally
While Virginia has not been subject to too many employment cases as of yet involving employee monitoring, the issue has reached a number of other states. a U.S. District Court has held that employees have no reasonable expectation of privacy even when employers have promised it. In Smyth v. Pillsbury, 914 F.Supp. 97 (E.D.Pa. 1996), the court ruled that an employer could read personal e-mails even when it had told employees it would not.
The U.S. Supreme Court, in Quon v. City of Ontario, 130 S. Ct. 2619 (2010), held that a police officer, through his department issued device had no expectation of privacy in his text messages, even though his commanding officer had promised him that his messages would not be monitored. In Quon, the Court held that the officer should have ignored what his commanding officer told him and relied upon the boilerplate language in a form he was given with the device.
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If you need assistance with Virginia employment law issues or issues involving the use of employee monitoring, please contact our office at (703) 668-0070 or here to schedule a consultation.
Our security clearance attorneys represent government contractors and federal employees in the security clearance process at the Defense Intelligence Agency (DIA). Each federal agency is different in evaluating security clearance issues and the DIA is no different. The DIA security clearance appeals process is initially governed by Executive Order 12698, which delegates clearance processing to the individual federal agencies. Lastly, the DIA has its own rules for handling security clearance appeals. These DIA rules are enforced by the Defense Intelligence Central Adjudication Facility (DICAF).
Background of the DIA Security Clearance Appeals Process
The security clearance process for federal employees and government contractors at the DIA is known as having more due process than most of the other Intelligence Community (IC) agencies. The process is more like the Department of Defense (DoD) process than other IC agencies. That said, the basic rules remain the same under the Executive Order and Security Executive Agent Directive 4 (SEAD 4).
The DIA security clearance process is managed internally by DICAF. Like many other federal agency security clearance processes, there can be some unique steps in the process. The typical steps in the DIA contractor security clearance process are as follows:
1. The Individual is Notified of Revocation or Denial
When an DIA clearance holder or applicant runs into security concerns, the DIA, usually after some review and followup in the investigation process, makes a decision. Either they accept the security concern as is and adjudicate it favorably or they issue a Notice of Intent to Revoke or Deny (also known as a Statement of Reasons (SOR)). This document will provide the security concerns at issue and other rights in a Memorandum.
The security concerns will be usually set forth briefly in a 2-4 page letter. The SOR will usually provide copies of the security guidelines at issue and a page entitled Information and Instructions for responding. The rights on review are set forth in some detail in the documents. There is a right to request a review of the decision.
2. Timely Request a Review and Personal Appearance
There is a right to request the DIA Clearance File containing documents in the case. Individuals appealing the DIA decision will want to ensure that they specifically request that they are seeking a Personal Appearance (hearing) as well. This is critical. Currently, these rights must be exercised within 10 days to be timely. Keep in mind that these deadlines have shifted over the years, so it is important to be read the SOR carefully.
3. Receipt of the Security Clearance File
If requested, you will receive the DIA Security Clearance File before you have to draft the written response. After your properly formatted request, you will be provided with documentation relied upon by the DIA in proposing to deny or revoke your security access. As opposed to some federal or IC agencies, the DIA does a fairly good job of explaining the specific security concerns at issue. This provides a better basis in which to respond. When the Clearance File is received it is important to subsequently file a written response and to prepare for the PA at the DIA. In the response letter, in a PA has been requested, you will be scheduled for a a hearing in due course.
4. Written Response to the DIA
Upon receipt of the Clearance File, the individual will generally want to provide a written response in preparation for the PA. It is usually important to provide supporting documents, in advance, to give the adjudicator time to review them in advance of the PA. The documents usually need to be provided within a sufficient time prior to the scheduled PA.
5. The Personal Appearance (PA) Hearing
The next step in the DIA security clearance process is for the individual to present their response to the adjudicators during the PA. We have represented individuals both in the DC and Reston locations for these purposes.
The DIA will notify you by letter about the PA hearing scheduling. You should retain a security clearance lawyer to assist you with this presentation. These types of hearings typically take about an hour or more in length. The individual seeking to overturn the initial security clearance decision should be prepared to respond to the concerns at issue and also for potential questions by the adjudicator.
The meeting will typically have a number of participants including a panel of individuals. There will likely be DIA counsel, a DIA psychologist and other adjudicators from DICAF. They will then issue a decision on the security access appeal following the PA.
6. Appeal to the DISAB
Following the PA, a written decision will be rendered. If the decision is unfavorable, the individual has the ability to appeal the decision to a second step appeal at the DISAB. The second step appeal is conducted by a panel of senior security officers. This stage is in writing only and must be submitted within 15 days of the receipt of the denial. It is important to note that you must also complete the election to appeal to the DISAB form within 5 days of receipt from the denial
7. Final Clearance Decision and Next Steps
Once the second step review is completed by the DISAB, the panel will issue a final decision. If unfavorable, then the individual will not be able to apply for a security clearance through DIA for one year. A DIA denial, in some cases, can affect a Department of Defense security clearance as well.
The DIA Clearance Process for DIA Employees
The DIA security clearance process for federal employees is different than that for government contractors that was described above. The dual nature of being employed and maintaining a security clearance causes the DIA to bring employment actions (removal) together with a security clearance revocation. If you do not succeed in the revocation action, a removal by DIA from federal employment will move forward and likely be upheld.
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When an individual is facing security clearance issues at the DIA 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.
We defend federal and local (Virginia, DC, Maryland) law enforcement officers and supervisors in integrity issues. As you know, integrity is the cornerstone of law enforcement. The public’s trust, the judicial system’s reliability, and the pursuit of justice all depend on the credibility of those sworn to uphold the law. Yet, a single lie or even an omission—on a report, under oath, or in any official or unofficial capacity—can end a career, compromise a case, and permanently tarnish an officer’s reputation. This is especially true under the legal doctrine established in Giglio v. United States (1972), a landmark Supreme Court case that has lasting implications for law enforcement officers today. It leaves little room for even one mistake. When these types of issues arise, we defend law enforcement officers.
What Is the Giglio Rule?
The Giglio decision mandates that the prosecution must disclose any information that could impeach the credibility of a government witness—including law enforcement officers. If an officer has a known history of dishonesty, bias, or other impeaching conduct, prosecutors are obligated to inform criminal defense attorneys. Failure to do so can violate a defendant’s right to due process and result in overturned convictions.
Put simply, Giglio means that an officer’s credibility isn’t just important—it’s critical. Many prosecutors, when faced with an officer with negative Giglio information to produce will simply drop an otherwise completely good case.
When a Lie Becomes a Career-Ending Problem
An officer caught in a lie—whether it’s falsifying a report, shading the truth in testimony, or misleading internal affairs—may be placed on a “Brady list,” “Giglio list,” or “Lewis List” by prosecutors. These lists identify officers whose testimony may no longer be considered reliable. Being on such a list can make it nearly impossible to testify in court, which, in turn, can severely restrict an officer’s ability to perform essential duties.
In many federal agencies and departments, officers who become Giglio-impaired are reassigned to non-enforcement roles or face proposed termination. When this happens, the prosecutor may inform the department or federal agency that they will decline to ever use you again as a witness. This frequently will cause a federal agency or department to place the officer on leave and initiate the termination process. A good example of how this can affect an officer came up in the case of Marin v. DHS (2025). In that case, the U.S. Court of Appeals for the Federal Circuit upheld a removal because a U.S. Attorney deemed the federal law enforcement officer to have credibility issues (i.e. Giglio).
And the stain of Giglio doesn’t just disappear—it can follow an officer throughout their career, even across state lines. When seeking a new law enforcement position, you almost always have to allow the new employer access to your old employer’s records.
Examples of Potential Giglio Violations in Action
- An officer falsifies or omits a detail in a report to make probable cause appear stronger in a criminal case.
- An officer is found to have lied during an internal affairs investigation.
- An officer was found to have lied in his tax filings and the department or agency finds out.
- An officer doesn’t lie but omits key details during an investigatory interview.
- An officer withholds key facts during testimony, later discovered through body-worn camera footage.
Each of these actions, if exposed, can render that officer’s future testimony suspect—potentially undermining any case in which they are involved. When this happens, it is commonly the case that the officer will potentially face termination. In some cases, the officer will be fortunate to be assigned to duties which wouldn’t subject the officer to having to testify in court.
How Giglio Can Affect You and Others
The damage extends beyond individual consequences. A single Giglio violation can:
- Cause other officers or supervisors to be forced to testify against you.
- Lead to civil liability for the officer.
- Cause overturned convictions.
- Require closed investigations to be reopened.
- Damage the public’s trust in an entire department.
- Invite civil liability for the agency.
- Harm prosecutorial partnerships and coordination with the federal or local prosecutor’s office.
Protecting Your Credibility: Best Practices
- Tell the Truth—Always: This may seem basic, but it cannot be overstated. Accuracy and honesty must guide all official conduct. Of course, if there are legal issues involved, it is important to obtain legal advice from an attorney. If there is a criminal issue involved, legal advice before participating in an interview is critical. In some cases, not testifying will be the best course of action.
- No Omissions: If there is a material fact that is important in a case, but you are not asked about it in an interview, it is often important to disclose it. Not doing so can lead to a large of lack of candor, which is different than a dishonesty charge.
- Document Everything/Save Data: Meticulous, truthful documentation helps prevent misunderstandings and protects against false accusations. When situations that are unusual arise, it is often important to keep a journal of the actions you took (or other steps) if you know that you will be interviewed later.
- Own Mistakes Early: If you make an error, report it promptly. Transparency can mitigate long-term damage. Inlack of candor cases, coming forward early can sometimes avoid disciplinary issues.
- Understand Departmental and Legal Obligations: Stay educated on your agency’s policies, Brady/Giglio requirements, and ethical expectations. They basically boil down to two things: (1) tell the truth in all situations, and (2) if questioned about an incident, do not leave out important details.
- Seek Legal Guidance When in Doubt: If you face a potential credibility issue, consult a law enforcement attorney before proceeding. Disclosures, when criminal issues are at stake, may change how you approach investigative interviews or disciplinary defense.
- Legal Defense: If accused of dishonesty or lack of candor, it is critical to hire a law enforcement attorney to help defend you. Our lawyers defend law enforcement officers and supervisors in trial (civil service) boards, before police departments, before federal law enforcement agencies, and in front of the Merit Systems Protection Board or in arbitration.
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We defend federal law enforcement officers nationwide, in addition to officers in Virginia, DC, and Maryland. Giglio issues must be handled carefully. In a profession built on public trust, even a single lie can dismantle years of honorable service. We defend law enforcement officers who run into Giglio issues. We can be contacted at (703) 668-0070 for a consultation or through our website.
