Legal Insider

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

By John V. Berry, Esq

With the deadline approaching today (February 6, 2025) for federal employees considering whether to take up the administration’s offer to resign and get paid through the end of September (“Fork in the Road” email), many still have questions.

There have been multiple changes to the offer and proposed settlement terms over the last few days so employees accepting the deferred resignation are facing risks as to whether or not the program will work as planned.

Many federal employees offered the deferred resignation opportunity could benefit from it, but one of the problems is that the program has been rushed out too quickly. With the speed that the program was put in place, most federal employees have been confused about how it applies, whether they will have to do any work during the resignation period and whether it is binding. Most agency administrators have been unable to properly advise subordinate federal employees on what type of work they will have to do during the resignation period and many other questions.

One version of the Fork in the Road email suggests that vacations are an option, which is likely not the case. Federal employees can expect to work to some degree (or perhaps full time) from home if they accept the deferred resignation offer. We just don’t know what will happen.

The Reality of the Resignation Offer

We are advising federal employee clients to seriously consider the risks before accepting OPM’s deferred resignation offer. While the offer is appealing to many, it involves a leap of faith. If something goes wrong with the resignation offer in the courts, such as it is found to have not been appropriated correctly by Congress, or whether it complies with the Administrative Procedures Act and other laws, individuals could be left without any option to challenge the agreement. We wrote about these issues when it first came out.

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

By Melissa L. Watkins, Esq.

Security clearance questionnaires are an essential part of the process for individuals seeking access to classified information in the U.S. government or related sectors.

These forms, known as Standard Form 86 (SF-86) (electronically known as the eApp), require applicants to provide personal, professional, and financial details to assess their trustworthiness and reliability. Given the complexity of these forms and the high stakes involved in securing clearance, it’s not uncommon for applicants to make mistakes, whether unintentionally omitting information or providing incorrect details.

It is also the case that some individuals intentionally omit unfavorable information, for example, a prior criminal record, in hopes that it will increase their likelihood of being approved for a security clearance. Understanding how to address these issues promptly is crucial to maintaining both your eligibility for clearance and your integrity in the process.

Errors on the SF-86/eAPP

The SF-86 requires the applicant to disclose a wide range of sensitive data, including criminal history, financial status, foreign contacts, and drug use, among other things. Any misrepresentation, even if accidental, can lead to significant consequences, such as delayed processing, denial of clearance, or potential disqualification.

For those misrepresentations that are material to determining if someone is qualified to hold a security, such errors can call into question the applicant’s integrity and potentially lead to security concerns related to personal conduct. The government relies heavily on the accuracy of the information provided to make determinations about a person’s suitability for access to national security information. Therefore, correcting mistakes in your submission should be a top priority.

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

By John V. Berry, Esq.

Thoughts on the Security Clearance Appeal Process

Security clearance appeals take place when individuals get denied while applying for a security clearance. They can also occur when an individual with a security clearance has their clearance revoked. Security clearance appeals can have important ramifications for your career.

In many cases, losing a security clearance can result in losing your position. We represent government contractors, federal employees and military personnel in security clearance appeals.

Each Agency’s Appeal Procedures are Different

Every federal agency handles security clearance appeals differently. While the right to a security clearance appeal comes from Executive Order 12968, agencies have developed their own policies in implementation.

Some agencies, like the Department of Defense and Department of Energy, incorporate an administrative judge hearing process. These types of appeals are essentially administrative court proceedings, with the government represented by an attorney. Other agencies, like the Department of Homeland Security, incorporates a written response and personal appearance process, which is less formal. Many of the Intelligence Community agencies provide the opportunity to submit a written response and meet with adjudicators during a personal appearance.

While there are many different procedures for security clearance appeals, there are many things in common.

Common Considerations in Security Clearance Appeals

While there may be different procedures by different federal agencies in the security clearance appeals process, there are many similar considerations. These include:

1. Obtain Legal Advice Early: Obtaining legal representation early in the security clearance appeals process is extremely important. Too often we see security clearance appeals that have gone too far in the process before an attorney is hired, which often lowers the odds of ultimate success. Ideally, individuals with security concerns should meet with an experienced security clearance lawyer before submitting their initial security clearance forms. If not then, it is important to have a security clearance lawyer help them respond to a Statement of Response (SOR) or Notice of Intent to Revoke a Security Clearance.
2. Obtain Critical Documentation: Many individuals are not aware and not advised about the level of detail and documentation needed to present a strong security clearance appeal. Depending on the particular case, we may need to obtain government records, performance evaluations, documents that address the security concerns, witness statements, awards, character letters and other mitigating documentation to present the best possible security clearance appeal.
3. Draft a Comprehensive Written Response to the Security Concerns: In many cases individuals handling their own initial responses don’t realize the level of detail needed in their written response to address the security concerns. Some individuals write in “I admit” on the SOR or prepare a short paragraph responding to the concerns. A response, to be successful, must give a complete and detailed explanation about the security concerns raised by the Government. These responses tend to run 10-14 pages and along with the exhibits attached can run 25 to 40 pages. Additionally, the response has to provide detailed information about who you are as a person. The Whole-Person Concept, an overview of you and your experience and life is critical to help resolve a security clearance appeal.
4. Be Fully Prepared for the Administrative Judge Hearing or Personal Appearance: When the time comes for an administrative judge hearing or personal appearance on the security clearance appeal it is critical to be prepared. A security clearance attorney can assist you in preparing for these processes. You will want to be able to answer questions clearly about the security concerns, your background and other issues. Additionally, in administrative judge proceedings you will want to be prepared for a government attorney’s cross-examination. For personal appearances, you will want to be prepared to address critical questions raised by the reviewing official.

Contact Us

Each security clearance appeal is unique, so individuals are advised to have counsel advise and represent them as early in the process as possible. 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.

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

By Melissa L. Watkins, Esq.

Our lawyers represent individuals before the Defense Office of Hearings and Appeals (DOHA) in cases involving their security clearances.

It is important to have legal representation during the DOHA hearing process, which can be very similar to typical court proceedings. The following is the process that one might expect at a security clearance hearing before a DOHA administrative judge.

How DOHA Cases Usually Start

DOHA cases typically begin when a federal contractor, military, or federal employee receives a Statement of Reasons (SOR) from the Defense Counterintelligence and Security Agency (DCSA). In submitting their response, the individual will have the choice of having their case heard by an administrative judge at DOHA or reviewed based on the written record. The process varies a bit based on whether the individual is employed by the government or is a government contractor. However, when a choice is made, electing a hearing before a DOHA Administrative Judge is our usual recommended choice.

Differences Between Contractors and Federal Employees

There are differences in the DOHA process for government contractors, military personnel, and federal employees. For instance, DOHA decisions for government contractors are binding. For federal employees and military personnel, DOHA decisions are recommended, and they will then be reviewed by other agency personnel for final decision. A DOHA Hearing for federal employees and military personnel is also known as a Personal Appearance as opposed to a hearing. However, no matter what type of employee one is, the DOHA hearing process is pretty similar.

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

By Melissa L. Watkins, Esq.

When someone performs uniformed military service, certain protections are granted when it comes to their seeking and performance of civilian federal employment. Two important sources of protection for veterans are the Uniformed Services Employment and Reemployment Rights Act (USERRA) and Veterans Employment Opportunities Act (VEOA).

What is the USERRA?

USERRA is a federal law that protects military service members and veterans from employment discrimination on the basis of their service, allows them to regain their civilian jobs following a period of uniformed service, and ensures that they are not disadvantaged in their civilian careers because of their military service.

What is VEOA?

VEOA is a federal law that provides certain federal employees and applicants with a means of redress in the event that a federal executive agency violates the employee’s or applicant’s veterans’ preference rights. The Office of Personnel Management’s VetGuide provides a comprehensive list of campaigns and expeditions which qualify for veterans’ preference and insight on the types of veterans’ preference.

How to File an USERRA or VEOA Claim

A federal employee claiming a violation of USERRA may file a complaint with the U.S. Department of Labor (DOL), who will investigate the complaint and attempt to resolve the issue. Federal employees who believe their USERRA rights have been violated by an agency may alternatively (and often preferred) file an appeal directly with the MSPB. While there is generally no statute of limitations on USERRA claims, it is important to file them as soon as possible because those filed more recently will generally be viewed more credibly.

Under VEOA, before an individual can file a VEOA appeal with the MSPB, she/he must first file a complaint with the Secretary of Labor. After filing a complaint with the Secretary of Labor, an individual can pursue the case at the MSPB once 60 days has passed without a decision or within 15 days of receiving written notification from the Secretary of Labor that the Secretary has been unable to resolve the complaint. Unlike with USERRA, there is a deadline for filing a VEOA complaint with the Secretary of Labor. A VEOA complaint must generally be filed with the Secretary of Labor within 60 days of the VEOA violation.

Remedies for USERRA or VEOA Violations

If successful in an MSPB case based on either USERRA or VEOA, the following types of remedies are often available:

1. Correction of any unlawful employment action taken or not taken (USERRA)
2. Ordering the Agency to comply with the statute or regulation that was violated (VEOA)
3. Repayment of any loss of wages or back-pay (both USERRA and VEOA)
4. The award to a federal employee of reasonable attorney’s fees, expert witness fees, and other litigation expenses (both USERRA and VEOA)

Contact Us

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

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

By John V. Berry, Esq

Our lawyers represent federal employees, government contractors, and military personnel in security clearance cases. One of the most frequent questions they ask is when they should hire a security clearance lawyer.

The usual answer that we give is that clearance holders and applicants should consult with a knowledgeable lawyer as soon as they anticipate having security clearance issues. It is generally easier to fix security clearance problems (or avoid them) as early in the process as possible. 

Most individuals have a good sense as to whether or not they may have a security concern (e.g., drug use, financial issues, accurate completion of forms) as they apply for positions or when they fill out security clearance forms like the e-QIP, SF-86 and/or different versions of the SF-85. Sometimes, individuals don’t consider how much a potential security issue can affect their ability to obtain or retain a security clearance. Having a security clearance attorney advise a person about the process can be invaluable.

Some areas where a security clearance lawyer can help include: 

Getting Advice Before Completing Security Clearance Forms 

When there is a potential security concern, consulting with a security clearance lawyer can help get ahead of potential security clearance concerns. One of the major problems that we see in the clearance process is when a person comes to us too late for advice to potentially correct a security issue. Getting advice prior to submitting security clearance forms, where there are potential issues, is the best advice.

A security clearance lawyer can go over the risks of applying for a security clearance. They can also help review an individual’s security clearance forms to ensure that they are accurate and responsive. It is critical, if you apply, to disclose all information accurately on these forms. Not doing so can form the basis for a denial based on a lack of candor or honesty. 

Consulting/Representation Once the Security Clearance Process Begins 

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

Again, it is extremely important to be honest and accurate during the clearance interview process and sometimes to even disclose concerns before the interview begins in certain cases. However, getting advice before doing so is crucial. 

Representation in Security Clearance Denials or Proposed Denials 

An individual will definitely need a security clearance lawyer if they receive a denial or proposed denial of their security clearance. Each federal agency is different, and there are different security clearance processes for each federal agency.  

Drafting the Written Response to the Statement of Reasons 

The typical first step in the security clearance denial process is to provide a written response to the security concerns (often known as the Statement of Reasons) to the clearance review authority. The first step is to obtain a complete fact set from the individual regarding the security concerns at issue and work to determine the best possible methods of rebutting and/or mitigating them. There is also a whole-person concept evaluation where attorneys can assist individuals in explaining their good character, prior performance, and/or background, which can also help mitigate clearance concerns.  

The written response usually takes the form of a written submission by counsel, exhibits, and an affidavit or declaration. It is not uncommon for such responses to be 15 to 70 pages in length, with exhibits. The length of a submission depends on the security concerns at issue and the type of mitigating documents that are available for a case.   

Representation During Personal Appearance or Hearing Stage 

While it is very important to provide a detailed written response to security clearance issues, it is even more important to present a thorough oral presentation where the opportunity to do so arises. We almost always recommend that an individual elect an administrative judge hearing or personal appearance in security clearance cases. Each federal agency is different and has different procedures for personal appearances and hearings. We have found that personal appearances/hearings have the greatest potential to reverse negative findings.  

Contact Us 

When an individual is facing concerns about security clearance issues, it is important to obtain legal advice early. 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.  

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

By John V. Berry, Esq

The Merit Systems Protection Board (MSPB) is an appeals forum for federal employees and former federal employees to challenge various types of federal agency actions, such as serious disciplinary actions (adverse actions), retirement appeals, whistleblower matters and other types of cases.

The most usual type of appeal for federal employees involves filing an appeal over a serious disciplinary action, such as removal from the federal service.

During an appeal a federal employee can choose to be represented by an attorney. That said, the federal agency on the other side will be represented in the appeal by an attorney. This article discusses some of the reasons for retaining an attorney familiar with the MSPB process to assist you in an appeal. In other words, the reasons why it is important for a federal employee to retain an MSPB attorney. Here are some reasons why it is important for a federal employee to retain an MSPB lawyer for their appeal.

Federal Agencies Treat MSPB Cases Differently When an Employee Has an Attorney

One of the reasons why it is important to have an MSPB experienced attorney representing a federal employee is that it will very likely make a difference in how the federal agency treats the MSPB appeal at issue. Federal agencies allocate their attorney resources first to cases where an individual has retained an attorney. Those cases tend to get the most attention because there are attorneys on both sides of the appeal.

In other words, where an appellant has their own attorney, the federal agency involved will focus more on that individual’s appeal merely because they have an attorney. This focus can help to resolve MSPB appeals earlier in the process.

The MSPB Process is Much Like a Civil Action

One of the most important reasons why it is important to have an attorney represent a federal employee in the appeals process is the fact that it is a very serious type of appeal, very similar to being involved in a civil lawsuit. There is a general misperception that the process is designed for an employee to effectively represent themselves.

An MSPB appeal functions much like a civil court case where there is discovery, the taking of depositions and the filing of briefs. As a result, representing yourself in this type of case is very difficult. It is often the case where federal employees discover this too late and we are contacted after discovery deadlines have passed which can make appeals much more difficult to prevail in and/or settle. It is important to have an MSPB attorney early in the process. Additionally, there are often legal arguments and filings required by an administrative judge that really require an attorney.

Increase the Chances of Settlement

Federal employees who retain attorneys in the MSPB process are more likely to resolve their MSPB appeals. Part of the calculation by federal agencies, in determining whether or not to settle MSPB cases, has to do with risk. Federal agency attorneys evaluate the risk of losing an appeal (a risk which increases when an employee has an attorney), but also other types of risks including the risk of adverse information being disclosed through discovery.

Individuals without counsel can run across difficulties such as how to format discovery requests or take depositions which can limit the amount of critical information uncovered in an appeal. This can decrease the chances of settling an MSPB appeal. MSPB lawyers are also able to understand and work out the legal terms of a settlement agreement with federal agency counsel to minimize risk and to attempt to ensure compliance with settlement agreements.

It is Difficult for an Employee to Represent Themselves at a MSPB Hearing

One of the most important reasons for having an attorney represent an appellant in an MSPB appeal is the difficulty for a federal employee in presenting their own case at the MSPB hearing. MSPB hearings typically involve presenting opening and closing statements, presenting and questioning witnesses, cross-examining witnesses and making legal objections to evidence.

It is also difficult for a federal employee to question themselves in a case, and their testimony as a result often takes the path of a statement which can have limitations. Having an MSPB lawyer assist them can help lead them through what can often be difficult testimony. We often have federal employees come to us following the filing of an MSPB appeal because they didn’t realize how complex the process could be. It is best to secure MSPB representation as soon as possible for federal employees.

If you are in need of advice regarding MSPB appeals, please contact our office at 703-668-0070 or through our contact page to schedule a consultation.

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

By John V. Berry, Esq

Our Virginia employment lawyers represent Virginia employees in severance agreement negotiations. Severance agreements are contracts that govern an employee’s departure from an employer. It is important to have counsel when an employee is faced with leaving an employer and needs to negotiate a resolution. We provide legal advice and representation to employees seeking the best possible severance agreement terms.

Severance Negotiations in Virginia

Severance is not required under Virginia law. However, severance agreements may be offered by an employer in any number of situations. The employee may be facing termination and the employer may want to resolve all outstanding issues before they leave. Severance agreements are also sometimes offered to employees who are laid off or facing retirement. If an employee is let go but not offered a severance agreement, hiring counsel can often prod the employer to offer a severance agreement. In some cases, the severance agreement process can be resolved through simple talks between your lawyer and the employer’s lawyer.

Common Severance Agreement Terms

While severance agreements typically involve the payment of a monetary sum to a departing employee, there are many other terms to consider. Some of the possible terms to consider in a Virginia severance agreement may include, but are not limited to, the following:

• Financial payments, tax consequences, and timing of severance payments
• Continuation of employment benefits (e.g. health, life, disability)
• Rights to unemployment compensation
• Claims to be waived (wrongful termination, discrimination, whistleblowing)
• Confidentiality clauses
• Non-Disparagement clauses
• Re-employment possibilities
• Non-Compete clauses
• Stock provisions
• Preservation of trade secrets
• How references will be handled
• Recommendation letters
• How disputes are handled

When signing a severance agreement, an employee is required to give up important rights. Before signing such an agreement, the employee should consult with an attorney to discuss the rights that he or she may be waiving and the terms included. Hiring counsel can help negotiate the best severance resolution possible.

Contact Us

We offer a full set of legal services to protect your rights in the severance agreement negotiations process in Virginia. To schedule an initial consultation with one of our Virginia severance agreement lawyers, please contact us at (703) 668-0070 or by visiting our website.