Security Clearance and Foreign Preference (Guideline C): What You Need to Know

For many security clearance applicants and holders, having connections to another country is simply part of modern life. Individuals may have been born overseas, possess dual citizenship, own property in another country, or have family members living abroad. These circumstances do not automatically prevent someone from obtaining or maintaining a security clearance. However, they can raise questions under Guideline C – Foreign Preference of the National Security Adjudicative Guidelines (Security Executive Agent Directive 4 or SEAD 4).

At Berry & Berry, PLLC, we regularly represent federal employees, military personnel, and government contractors facing security clearance issues involving foreign preference. One of the biggest misconceptions we encounter is that having foreign citizenship or overseas ties automatically disqualifies someone from holding a clearance. In reality, security clearance adjudicators focus on whether an individual’s actions demonstrate a preference for a foreign country over the interests of the United States.

This article explains how Guideline C works, what conduct may trigger a review, and how many cases can be successfully mitigated.

What Is Guideline C – Foreign Preference?

Guideline C addresses conduct that may indicate an individual has placed (or may place) the interests of another country ahead of those of the United States.

The government’s concern is not an individual’s heritage, ethnicity, or family background. Rather, adjudicators evaluate whether a person’s conduct demonstrates divided allegiance or raises concerns about their judgment, reliability, trustworthiness, or willingness to safeguard classified information.

Why Foreign Preference Matters in Security Clearance Cases

The security clearance process is designed to identify and manage national security risks, not to penalize individuals for having international backgrounds.

The key question is:

Have the individual’s actions demonstrated a preference for another nation over the United States?

Clearance adjudicators examine whether foreign citizenship or privileges have been exercised in a way that could call an individual’s allegiance into question.

Common Guideline C Issues

Several situations commonly trigger a Guideline C review during a background investigation:

• Exercising rights associated with foreign citizenship
• Voting in a foreign election
• Using a foreign passport after becoming eligible for a U.S. security clearance
• Accepting benefits that require an acknowledgment of allegiance to another country
• Serving in a foreign military or foreign militia
• Actively pursuing new foreign citizenship
• Accepting government privileges from another nation

Not every one of these circumstances will result in a clearance denial. However, each may require additional explanation and documentation.

Dual Citizenship Does Not Automatically Disqualify You

Perhaps the most common misconception surrounding Guideline C is that dual citizenship automatically prevents someone from obtaining or keeping a security clearance. That is incorrect.

Many individuals who possess U.S. security clearances also hold dual citizenship. The government generally focuses less on whether you have dual citizenship and more on how you exercise the rights that accompany it.

For example, adjudicators may scrutinize:

• Continued use of a foreign passport
• Voting in foreign elections
• Accepting free health benefits tied to foreign citizenship
• Previous employment for a foreign country
• Taking actions that affirm allegiance to another nation

By contrast, simply acquiring dual citizenship at birth because of your parents or birthplace is often viewed much differently.

Guideline C vs. Guideline B: Understanding the Difference

Many applicants confuse Guideline C (Foreign Preference) with Guideline B (Foreign Influence).

Although they frequently arise together, they address different concerns.

Guideline B – Foreign Influence

Focuses on outside pressures that may affect an individual, including:

• Family members overseas
• Foreign financial interests
• Business relationships
• Close foreign contacts

The concern is whether another country could potentially influence or coerce the applicant.

Guideline C – Foreign Preference

Focuses on the applicant’s own conduct.

The government evaluates whether an individual has voluntarily taken actions suggesting a preference for another country’s interests over those of the United States.

Understanding this distinction is important because different legal standards and mitigation strategies apply.

How to Mitigate Guideline C Concerns

The good news is that many Guideline C issues are fully mitigable.

Security clearance adjudicators understand that international ties are increasingly common in today’s global society.

Some of the most important mitigating factors include:

• Dual citizenship resulted solely from birth or family circumstances.
• Foreign citizenship does not conflict with U.S. national security interests.
• Foreign rights or privileges were exercised before becoming a U.S. citizen.
• The individual is willing to renounce foreign citizenship if necessary to protect U.S. national security interests.
• The exercise of foreign citizenship presents little or no security risk.

Each case is unique, and mitigation depends on the specific facts involved.

The Importance of Honesty During the Clearance Process

One of the most significant mistakes applicants make is attempting to minimize or conceal foreign ties.

Security clearance investigators routinely verify:

• Foreign travel
• Citizenship records
• Passport usage
• Overseas property ownership
• Foreign family relationships

Attempting to hide these issues often creates Guideline E (Personal Conduct) concerns that can be more damaging than the underlying Guideline C issue.

Being truthful, complete, and cooperative throughout the investigation is often one of the strongest mitigating factors available.

Real-World Examples of Guideline C Issues

While every case is different, Guideline C issues commonly arise when applicants:

• Continue using a foreign passport after obtaining U.S. citizenship.
• Voting in foreign elections while holding a security clearance.
• Accept government benefits requiring allegiance to another country.
• Maintain dual citizenship without understanding how exercising certain rights could affect their clearance.

In many of these situations, favorable outcomes are possible when applicants demonstrate loyalty to the United States and provide appropriate mitigating evidence.

How We Can Help

At Berry & Berry, PLLC, we understand that foreign preference cases often involve complicated legal and personal circumstances.

Our attorneys help clients:

• Respond to Statements of Reasons (SORs)
• Prepare mitigation evidence
• Navigate security clearance hearings
• Appeal adverse clearance decisions
• Develop legal strategies tailored to Guideline C allegations

Whether you are applying for your first clearance or defending an existing one, early legal guidance can make a significant difference.

Contact an Experienced Security Clearance Lawyer

If you are facing a Guideline C – Foreign Preference issue, don’t wait until your clearance is denied before seeking legal advice.

Berry & Berry, PLLC represents federal employees, military members, intelligence professionals, and government contractors throughout the security clearance process.

📞 Call: (703) 668-0070
🌐 Visit: https://www.berrylegal.com

The earlier you address potential concerns, the better positioned you may be to protect your career and your security clearance.

Security clearance issues involving sexual behavior (Guideline D) are among the most sensitive and misunderstood concerns faced by federal employees, military personnel, and government contractors. While deeply personal, these matters can have serious implications for your ability to obtain or maintain a security clearance.

At Berry & Berry, PLLC, we regularly represent individuals navigating these complex situations with professionalism. This guide explains how Guideline D works, what adjudicators look for, and how concerns can be mitigated.

What Is Guideline D – Sexual Behavior?

Guideline D is part of the Adjudicative Guidelines under Security Executive Agent Directive 4 (SEAD 4). It addresses situations where sexual behavior may raise concerns about an individual’s:

• Judgment
• Reliability
• Trustworthiness
• Susceptibility to coercion or blackmail

As outlined in SEAD 4:

Sexual behavior is a concern when it involves criminal activity, poor judgment, or creates vulnerability to coercion, exploitation, or duress.

Importantly, sexual orientation alone is never a basis for denial. The government is focused on risk, not identity.

Why Sexual Behavior Matters in Security Clearance Cases

Security clearance determinations are fundamentally about risk management. Adjudicators are not moral arbiters, they assess whether your conduct could:

• Expose you to blackmail or coercion
• Reflect poor decision-making
• Indicate dishonesty or lack of candor
• Violate laws or regulations

Even private conduct can become relevant if it creates security vulnerabilities.

Common Sexual Behavior Issues That Trigger Clearance Concerns

While every case is unique, some recurring issues include:

• Undisclosed extramarital affairs
• Solicitation or payment for prostitution
• Viewing or possession of illegal pornography
• Inappropriate workplace conduct
• Secretive or undisclosed relationships
• Online sexual behavior (including messaging or content sharing)

These issues may arise during:

• Background investigations
• Polygraph examinations
• Self-reporting requirements
• Workplace complaints or incidents

Because these matters are highly personal, we approach every case with discretion, confidentiality, and empathy.

How Security Clearance Adjudicators Evaluate Sexual Behavior

Adjudicators look at the “whole person concept”, meaning they evaluate:

• The nature and seriousness of the conduct
• Frequency and recency
• Whether the behavior was voluntary or coerced
• Whether it was disclosed honestly
• Evidence of rehabilitation or change

The key question is not simply what happened, but:

👉 Does this behavior still pose a security risk today?

How to Mitigate Sexual Behavior Security Clearance Concerns

The good news is that many Guideline D cases are successfully mitigated. The goal is to demonstrate that the concern:

• Is no longer ongoing
• Does not reflect your current judgment
• Cannot be used to coerce or exploit you

Common Mitigation Strategies

Depending on the situation, mitigation may include:

• Demonstrating the conduct was isolated or occurred long ago
• Showing transparency (e.g., disclosure to spouse or employer)
• Providing evidence of counseling or treatment
• Obtaining evaluations from mental health professionals
• Proving there is no risk of blackmail or coercion
• Submitting character references and supporting documentation

For example:

• In extramarital affair cases, disclosure and counseling may help
• In prostitution-related cases, rehabilitation and time since the conduct are key
• In online conduct cases, demonstrating changed behavior and accountability is critical

Official Mitigating Factors Under SEAD 4

SEAD 4 provides specific mitigating conditions that may apply:

• The behavior occurred during adolescence and did not continue
• The conduct is remote in time or unlikely to recur
• The individual is not vulnerable to coercion or exploitation
• The behavior was private, consensual, and discreet
• The individual has completed or is engaged in treatment with a favorable prognosis

These factors are often central to building a successful defense.

Real Case Examples from the Defense Office of Hearings and Appeals (DOHA)

Understanding how these cases are decided can be helpful. Here are a few real-world examples:

❌ Clearance Denied

• Individual paid for prostitution multiple times over decades, including while holding a clearance
• Insufficient evidence of rehabilitation
• Subject to coercion because spouse is unaware
• Ongoing concerns about judgment

✅ Clearance Granted

• One-time solicitation of prostitution
• Immediate disclosure to employer
• Strong evidence of rehabilitation and good character

✅ Clearance Granted

• Accidental download of illegal content many years prior
• No pattern of behavior
• Successfully mitigated under other guidelines

❌ Clearance Denied

• Attempted non-consensual workplace misconduct
• Lack of mitigation and poor judgment

These cases show that context, honesty, and rehabilitation matter greatly.

The Importance of Honesty and Early Legal Guidance

One of the biggest mistakes individuals make is:

❌ Failing to disclose conduct
❌ Minimizing or misrepresenting facts
❌ Waiting too long to seek legal help

In many cases, the cover-up is worse than the conduct itself.

Working with an experienced security clearance attorney early in the process can significantly improve your outcome.

How We Can Help

At Berry & Berry, PLLC we understand how difficult and personal these cases can be. We provide:

• Confidential, judgment-free legal advice
• Strategic guidance tailored to your situation
• Representation in responding to the Statement of Reasons
• Representation in security clearance hearings and appeals
• Assistance with mitigation evidence and documentation

We have helped many clients retain or obtain their security clearances, even in challenging cases involving Guideline D.

Contact a Security Clearance Lawyer Today

If you are facing a security clearance issue involving sexual behavior, it is critical to act quickly and strategically. Early intervention can make a significant difference in protecting your career and clearance. Sexual behavior concerns under Guideline D are highly personal, but they are also legally manageable in many cases. With the right approach, documentation, and legal strategy, many individuals are able to successfully mitigate these concerns.

📞 Call us: (703) 668-0070
🌐 Visit: https://www.berrylegal.com

Federal employees, and former federal employees, often need access to personal records maintained by government agencies. These records may include an Official Personnel Folder (OPF), security clearance files, or documents related to administrative investigations.

At our firm, we are frequently retained to assist clients in obtaining these records. This article provides a general overview of the Privacy Act and how it applies to federal employees. Because every situation is unique, individuals should consult an attorney experienced in Privacy Act matters before submitting a request.

What Is the Privacy Act?

The Privacy Act of 1974, codified at 5 U.S.C. § 552a, governs how federal agencies collect, maintain, use, and disclose personal information. In general, the law prohibits agencies from releasing records about an individual without their consent, unless a specific exception applies.

One key exception allows individuals to request access to their own records:

• 5 U.S.C. § 552a(d)(1) grants individuals the right to review and obtain copies of records maintained about them.

The Privacy Act is often compared to the Freedom of Information Act (FOIA), but they serve different purposes:

• Privacy Act → Access to your own personal records
• FOIA → Access to government records not specific to you

In some cases, submitting a request under both the Privacy Act and FOIA can be beneficial, depending on the type of records sought.

Key Differences Between the Privacy Act and FOIA

Understanding the distinction between these two laws is important:

• Agencies often do not charge search fees under the Privacy Act
• Agencies may charge copying fees
• FOIA requests may involve broader access but can include search and processing fees

Because of these differences, strategic use of both statutes can improve results.

What Records Can Federal Employees Request?

The Privacy Act allows individuals to request existing records about themselves. However, agencies are not required to create new documents in response to a request.

Common examples of requested records include:

• Background investigation reports
• Security clearance files
• Security clearance database records (DISS and Scattered Castles)
• Administrative or internal investigation records
• Official Personnel Folder (OPF)
• Disciplinary action records

There are many additional types of records that may be available depending on the agency and circumstances.

How to Submit a Privacy Act Request

Privacy Act request requirements vary by agency, but most requests must include the following information:

• Full legal name
• Date and place of birth
• Social Security Number (often required for identification)
• Current mailing or email address
• Signature
• A detailed description of the records requested (specificity is critical)
• A sworn declaration or notarized statement
• Copies of identification documents

Because requirements frequently change and errors can delay processing, working with experienced legal counsel is strongly recommended, especially for complex or sensitive matters.

Why Legal Guidance Matters

Privacy Act requests can become complicated when dealing with:

• Security clearance issues
• Adverse personnel actions
• Investigations or disciplinary records
• Missing or incomplete files

An attorney familiar with federal employment law and Privacy Act procedures can help ensure:

• Proper formatting and submission
• Strategic use of FOIA alongside the Privacy Act
• Faster and more complete responses
• Protection of your legal interests

Contact Us

If you need assistance preparing a Privacy Act request or obtaining federal employment records, our office can help.

Call: (703) 668-0070
Website: www.berrylegal.com

Schedule a consultation today to discuss your situation with an experienced attorney.

For many federal employees a security clearance is a requirement of employment. When a clearance is denied or revoked after the appeals process is exhausted, the federal agency will often move forward with a proposal to remove the employee from their position unless a suitable reassignment is available.

Because of this risk, it is extremely important for federal employees to actively protect and defend their security clearance at the earliest stage of a security investigation or denial.

At Berry & Berry, PLLC, our attorneys regularly represent federal employees nationwide in security clearance matters and federal employment disputes. Learn more about our federal employment practice.

What Happens When a Federal Employee Loses a Security Clearance?

Many federal positions, particularly in defense, intelligence, and law enforcement require an active security clearance as a condition of employment. If an employee ultimately loses that clearance, the agency must determine whether:

1. The employee can be reassigned to another position that does not require a clearance, or

2. The agency may remove the employee from federal service.

In many cases, reassignment options are limited or unavailable, which means that removal from federal employment becomes the likely outcome.

This reality highlights why it is essential for federal employees to seek legal advice early in the security clearance process before a security clearance is lost.

Our firm represents federal employees in matters involving security clearance investigations, denials, revocations, and appeals. Learn more about security clearance representation.

MSPB Appeals After a Security Clearance-Based Removal

Federal employees who are removed from their positions due to the loss of a security clearance often ask whether they can appeal the decision to the Merit Systems Protection Board (MSPB).

However, MSPB review in these types of cases is extremely limited.

The Supreme Court held in Department of the Navy v. Egan, 484 U.S. 518 (1988) that the MSPB generally does not have the authority to review the underlying merits of a security clearance determination. The Federal Circuit later reaffirmed this principle in Cheney v. Department of Justice, 479 F.3d 1343 (Fed. Cir. 2007).

In other words, the MSPB typically cannot second-guess a federal agency’s decision to deny or revoke a security clearance.

Limited Issues the MSPB May Review

Although the MSPB cannot review the security clearance determination itself, the Board may consider certain procedural issues related to the employment action.

For example, the MSPB may evaluate:

• Harmful procedural error that could have changed the outcome of a case (i.e. not following Agency policy).

• Whether the agency had a formal policy requiring reassignment of employees who lose their clearance.

• Whether a suitable reassignment position existed at the time of the removal.

Why Early Legal Representation Matters

Because the ability to challenge a removal based on a security clearance denial is limited, it is critical for federal employees to respond proactively to security clearance concerns.

Early legal guidance may help:

• Address issues raised during the background investigation

• Respond to a Statement of Reasons (SOR)

• Prepare for security clearance hearings or appeals

• Develop mitigation strategies under the Adjudicative Guidelines

Our attorneys at Berry & Berry, PLLC focus on representing federal employees in security clearance and federal employment law matters nationwide.

Contact a Federal Employment and Security Clearance Lawyer

If you are facing a security clearance denial, revocation, or federal employment action, it is important to seek legal guidance as early as possible.

Each security clearance case and federal employment matter involves unique facts, procedures, and deadlines.

Berry & Berry, PLLC represents federal employees, contractors, and military personnel in security clearance and federal employment matters throughout the United States.

📞 Phone: (703) 668-0070
🌐 Website: https://www.berrylegal.com
📩 Or visit our Contact Page to request a consultation:
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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.

• Competitive service employees generally serve a one-year probationary period

• Excepted service employees may serve a trial period, which can be one or two years, depending on the appointment authority

• 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:

• Are not entitled to advance notice of removal

• Do not receive a formal opportunity to respond

• 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:

• The termination is based on pre-appointment reasons, such as alleged falsification of application materials or conduct that occurred before federal service

• 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:

• Race

• Color

• Religion

• Sex (including pregnancy and gender identity)

• National origin

• Age (40 and over)

• Disability

• Genetic information

• 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:

• Terminating an employee whose probation has already ended

• Improperly classifying the employee’s appointment status

• Failing to follow required procedures for pre-appointment removals

• Terminating an employee based on whistleblowing

• Terminating an employee based on illegal discrimination

These issues can significantly affect whether appeal rights exist.

Examples

• Example 1: An employee removed for alleged resume falsification may be entitled to appeal to either the MSPB or OPM.

• 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

• An EEO or OSC claim is appropriate

• 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.

Contact Us

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.