Friday, September 27, 2013

Whistleblower flyer for workers' clinics

I am pleased to share a Whistleblower Flyer for Low-Income Workers' Clinics. This flyer can help volunteers at pro bono and workers' rights clinics identify whistleblower claims. It also calls attention to some surprisingly short deadlines. Did you know that environmental and workplace health and safety whistleblowers have only thrity (30) days to file a complaint with OSHA?

Kim Bobo of Interfaith Worker Justice suggested that I prepare this flyer when we met at this year's convention of the National Employment Lawyers Association (NELA). She actually wanted a one-page flyer. It turns out that two pages are necessary to describe the variety of whistleblower claims that low-income workers might have, help volunteers identify and assess those claims, explain how to file the initial complaint, and list the advice that new whistleblowers need to know.

Some whistleblower protections are particularly suited to the issues facing low-income workers. For example, the vast majority of workers in the food industry are low-income. How else will they learn about the protection they have for raising food safety issues under the 2010 Food Safety Modernization Act? Transportation, wage and hour, health care and union organizing issues can also lead to worthy whistleblower cases.

This flyer benefited from helpful feedback from Laura Brown at the DC Employment Justice Center, and Tess Wilkes, of the New Mexico Center on Law and Poverty. Thank you.

Please share this flyer with staff and volunteers at your local workers center or pro bono clinic.

Posted by Richard Renner.

Thursday, September 26, 2013

Send a message to Congress: Keep our government open

Jos Williams, President of the Metro Washington Council AFL-CIO, just sent out a link that citizens can use to contact their Representatives in Congress about the threatened government shut-down.

"Our country and our economy are being held hostage. But we can fight back," Williams begins. He gives us this link to an AFSCME web page that will send a message to your Representative:

The message offered at this web page concludes, "Please stop playing games. Keep the government running, continue to pay our bills, and stop trying to defund Obamacare." Of course, users of the web page can edit the message to express themselves more individually. Williams adds a final plea to, "spread the word!"

Posted by Richard Renner

Tuesday, September 24, 2013

How Did Aaron Alexis Get a Security Clearance?

The tragic shooting incident at the Washington Navy Yard last week raises many troubling questions about the security clearance process.  How can someone so clearly mentally ill obtain and keep a security clearance?  Who dropped the ball?  Of course, we now have numerous after-the-fact promises to review the system and plug the loopholes.  But what went wrong, and what can be done to fix it?  Also, does this mean that anyone with mental health issues will be barred from getting a clearance?

It used to be that anyone who sought mental health treatment was indeed considered a security risk.  But in the 1980's, a more enlightened view fortunately began to prevail.  Seeing a mental health counselor was no longer considered an absolute bar to getting a security clearance. In fact, it was acknowledged that a person who recognizes that he or she needs help and gets it is more likely to be stable than someone whose condition goes untreated.

Thus the issue became whether the individual had an illness that could adversely affect his or her judgment and trustworthiness.  For example, someone seeing a counselor for “garden variety” anxiety or depression, even someone taking antidepressant or anti-anxiety medication, would not normally be denied a clearance.  That is still the case today.

Problems could still arise for someone with a more serious disorder. For example, someone with bipolar disorder and on medication would have to demonstrate that for a period of at least a year, he or she is complying with the doctor’s treatment recommendations and is reliably taking the prescribed medication. Where the diagnosis is something for which medication is not reliably able to control the symptoms, such as paranoid delusions or psychotic episodes, getting a clearance would be much harder, if not impossible. Someone in the throes of a psychotic episode might inadvertently reveal classified information.

So how could Aaron Alexis - the Navy Yard shooter - have stayed under the radar?  The security clearance form he was required to fill out asks about mental health treatment for the past seven years. But it appears that he only had to complete the form once, when he enlisted in the Navy Reserves in 2007.  News reports available to date do not indicate that he had any mental health treatment up to that time.  

The security clearance form relies on the truthfulness of the individuals who fill out the form.  Although there is a penalty for perjury if the government finds out that a person has “falsified” the form, even a detailed background investigation as currently established is not going to discover that an individual has seen a psychologist or psychiatrist.

As an aside, what about Alexis’s gun-related arrests?  How is it that the background investigation did not reveal this?  News reports say there were three such incidents.  The first occurred in 2004.  Alexis was arrested in Seattle after he fired three shots from a Glock pistol into the tires of a car that two construction workers had parked in a driveway adjacent to Alexis’s house.  Then in 2008 he was arrested and jailed for two nights in Georgia after he was removed from a nightclub by authorities for damaging furnishings. He then shouted profanities at the arresting officers.

Yet again, in 2010, the police were called to Alexis’s apartment after his downstairs neighbor complained that he had fired a bullet through his floor and her ceiling. The woman told officers she had called several times about Alexis being too loud. Alexis was arrested for improperly discharging a firearm, but the county district attorney’s office said there wasn’t enough evidence to pursue the case.  Alexis apparently claimed that he accidentally discharged his weapon while he was cleaning it.

Only the first incident had occurred at the time of Alexis’s background investigation. One arrest, three to four years before the adjudication of his clearance, with no other incidents or problems on file, did not jeopardize the granting of his secret security clearance.

So Alexis’s “secret” level clearance remained good for ten years, with no new background check.  When he got out of the Navy in 2012 and went to work for the defense contractor, his employer hired a private company to conduct background checks.  According to news reports, that company found “no significant law enforcement problems” in Alexis’s history, and it confirmed that Alexis’s 2007 security clearance from the Defense Department was still valid.  Presumably the 2008 and 2010 arrests did not show up when the private company did its background check.

Had there been a new security clearance review, and had the 2008 and 2010 arrests been made known to the adjudicators, it is highly unlikely that Alexis would have been cleared.  As a contractor, he would have been issued a “Statement of Reasons” why his clearance was being revoked, and the right to have a hearing before an administrative judge at the Defense Office of Hearings and Appeals (DOHA) to explain his behavior. 

The legal standard applied by the DOHA judge is whether it is clearly consistent with the national interest to grant the clearance. If not, the judge is obligated to deny the clearance.  This standard means that any doubt must be resolved against the granting of the clearance.  This is a more strict standard than the criminal law’s “beyond a reasonable doubt.” 

A word about arrests: from a security clearance perspective, the fact that the individual was not brought to trial and was not convicted does not mean that the incidents do not have security significance.  From a civil rights perspective, for example, we know that minorities are arrested more frequently than whites, and this is why employment discrimination rules forbid prospective employers from asking job candidates about arrests.  But these considerations do not apply in the security clearance context.  The position of the adjudicators is that they have a right to know all of the facts and determine whether they have a bearing on the individual’s stability and reliability. 

For example, a wife whose husband attacked her may decide not to bring charges against her husband, causing the case to be dropped. But the security clearance adjudicators still want to know what happened, because it is relevant to whether the husband is a security risk. 

More frequent background checks would certainly give the government more timely information. Had Alexis been required to fill out a new SF-86 form in 2012, he would have been obligated to disclose the 2008 and 2010 arrests, as well as the disciplinary actions taken against him as a Navy reservist. If he sought any mental health treatment, that, too, would have been captured on the form. 

Candidates are also required to sign a waiver allowing the background checkers to obtain information from the mental health providers they saw.  Lest there be objections that checking insurance or hospital records violates the employee’s right to privacy, the law is clear that there are no such rights when it comes to a security clearance.  Having a clearance is considered to be a “privilege,” not a “right.”  As a result, employees are required to waive their privacy rights and give the government written permission to see doctors’ and hospital records.  HIPAA does not apply.  If they do not sign the waiver, the government’s response is: you have the right to decline.  But we have the right not to give you a security clearance. 

There is also the issue of self-reporting.  Individuals with security clearances are supposed to report to their security officers any incident that could have a bearing on their eligibility for a security clearance. This would have demanded that Alexis report his 2008 and 2010 arrests, as well as the disciplinary actions he received in the military.  But this is honored more in the breach.  

One approach to obtaining information between background investigations is to place an obligation on co-workers and supervisors to report any suspicious conduct they notice in other employees.  This has advantages and disadvantages.  On the one hand, co-workers may be in the ideal position to notice when an office-mate is acting strangely.  Sometimes that strange behavior is a legitimate clue to the fact that the office-mate has developed a mental illness or a lack of impulse control that could lead to an intentional or unintentional compromise of classified information. 

In fact, in August of this year, Alexis’s employer grew so concerned over his erratic behavior on a business trip that it ordered him home for a rest break, and even called his mother to express its concerns. The employer also called the Residence Inn in Rhode Island where Alexis was staying to say that he was “unstable and the company is bringing him home.” 

And we also know that the Newport RI police called the Navy after Alexis called them complaining that he was hearing voices of three people who had been sent to follow him and keep him awake and were using “some sort of microwave machine” to send vibrations into his body. Tragically, apparently no one passed that report beyond the naval station’s security office.  Nor did Alexis’s visits to the VA hospitals in Rhode Island and DC trigger any reports.

But there is also great potential for abuse.  A vindictive co-worker could file a report on an office colleague in a fit of jealousy.  A boss who thinks that a subordinate has a weird personality and just doesn’t fit in, or who thinks his female subordinate is “too emotional,” could file a report in order to get the employee out of his or her office.  Then the burden is placed on the employee to show that he or she does not have a mental illness that has an adverse effect on his or her judgment or trustworthiness.  This can involve the employee being placed on leave without pay and having his or her security clearance suspended.  The employee then must hire an attorney and obtain a psychological evaluation, all at the employee’s own expense. The best practice would require the agency to reimburse the employee for these expenses when the clearance is adjudicated favorably. 

Objections may also be lodged that the boss who is filing the report is discriminating on the basis of the employee’s disability or sex. But the security clearance process is considered to trump all laws passed by Congress, such as the Americans with Disabilities Act, the Age Discrimination in Employment Act, and Title VII of the Civil Rights Act, which bars discrimination in employment on the basis of race, sex, religion, and national origin. The security clearance process is controlled exclusively by the executive branch of government.  Therefore any legislation passed by Congress cannot interfere with the executive’s ability to determine who should be eligible for access to classified information.

Notwithstanding these rules, we now know that when it came to Alexis, the ball was dropped; indeed, many balls were dropped. We know that Alexis’s Navy superiors were in the middle of preparing his case for a general discharge on the basis of his having engaged in a pattern of misconduct, including failing to show up for work and being insubordinate.  But before they could finalize the discharge, Alexis applied for an early discharge under the Navy’s “early enlisted transition program.”  Taking the easy way out, the Navy allowed Alexis to leave with an honorable discharge. One cannot fail to draw similarities with the case of Maj. Nidal Hassan, the Fort Hood Texas shooter, who showed frequent signs of mental instability, but his superiors shuffled him on to the next assignment rather than grapple with the implications of his behavior.

So could a more effective security clearance process have kept Alexis from shooting innocent civilians last Monday?  No, even if he did not have a security clearance - and access to a military post - Alexis still could have wreaked the same havoc in another office building.  I will leave it to gun control advocates to address how easy it is to buy guns in this country.

But this is certainly an appropriate occasion to address loopholes and gaps in the security clearance process:

-  First, ten years is too long a period of time for there to be no check into the behavior and conduct of someone who has access to classified information.  A full background investigation would require resources that are not now being devoted to this process. They system is already horribly backlogged, and the main company conducting these checks - USIS - was already under investigation even before the Alexis and Snowden cases arose.

- Employees with clearances should be required to file yearly updates disclosing issues such as arrests, disciplinary action, drug and alcohol use, financial problems, and psychological counseling. Even if a full background investigation is not done annually on every clearance holder, this disclosure of adverse information would be sufficient to trigger further scrutiny of that individual’s stability and trustworthiness.

- Employees with clearances should be given clear instructions requiring that they self-report any relevant incidents between reporting cycles.

- Supervisors should be given training on how to recognize behavior that may indicate that an employee is suffering from a serious emotional or mental problem that could impair his or her judgment and trustworthiness. Before an employee is placed on leave, and before the employee’s clearance is suspended, the employee should be interviewed and given the opportunity to explain why the issues that were reported by the supervisor have no adverse security significance.

In closing, there is valid reason for concern that the Alexis case will cause a retrenchment from the current understanding that someone who seeks mental health treatment is not a security risk.  Moreover, individuals may once again fear seeking such treatment.  This would be a terrible regression from today's enlightened view.

By Elizabeth L. Newman

The author is a Washington lawyer who advises and represents employees in the security clearance process and is the author of “Security Clearance Law and Procedure,” Dewey Publications (2008).

Wednesday, September 11, 2013


A number of federal agencies, including the U.S. Postal Service and some components of the Department of Defense, take the position that they will not pay for “attorney’s fees for services rendered during pre-complaint processing”, including for time attending agency-offered ADR/mediation, citing the provisions of 29 C.F.R. § 1614.501(e) and EEOC Management Directive 110 Chapter 11 § III ¶ B.  This position is problematic for several reasons.  First, this position ignores the actual language of the regulation and the Management Directive that the “agency and the complainant can agree . . . that the agency will pay attorney’s fees for pre-complaint process representation.”

Second, and more significantly, this position undercuts and seriously inhibits the EEOC’s requirement that agencies establish and/or make available an Alternative Dispute Resolution (ADR) program both at the pre-complaint stage of the administrative process and the formal complaint stage and the EEOC’s direction that agencies offer ADR as early in the administrative process as possible - that is during the pre-complaint stage.  29 C.F.R. § 1614.102 and EEOC Management Directive 110 Chapter 3.  The purpose of this requirement is obvious: the earlier in the EEO process a complaint can be resolved the less expensive it is for the parties. 

Third, this position is directly at odds with the provision of EEOC Management Directive 110 Chapter 3 § ¶ II. A. 3, which grants complainants “the right to representation throughout the complaint process, including during any ADR process. . . . [I]t is important that any agency dispute resolution procedure provide all parties the opportunity to bring a representative to the ADR forum if they desire to do so.”  As the Supreme Court has recognized:  “The right to representation by counsel is not a formality. . . . It is of the essence of justice.”  Kent v. United States, 383 U.S. 541, 561 (1966).

Where an agency offers mediation as an alternative to EEO counseling - as the EEOC requires them to do - the agency accepts the possibility and likelihood that the complainant will be accompanied by an attorney at the mediation, especially if the agency is represented.  Indeed a complainant would be foolhardy to enter into a mediated settlement with his/her agency, containing a waiver and release of all claims, without legal representation to advise him/her.  See Ferguson v. Dep’t of Justice, EEOC Appeal No. 0120131614 (Aug. 15, 2013).  Further, the availability of attorney’s fees for mandatory steps in the administrative process was resolved by the Supreme Court over 30 years ago in N.Y. Gaslight Club, Inc. v. Carey, 447 U.S. 54, 65 (1980).

The unfortunate result of an agency adamantly refusing to pay attorney’s fees for a complainant’s attorney’s services at pre-complaint ADR/mediation will be that complainants’ attorneys will advise complainants to wait until after the formal complaint is filed to request ADR/mediation, thus increasing the attorney’s fees to be reimbursed.  An agency is better advised to put a clause in a settlement agreement entered into in a pre-complaint ADR/mediation that the parties recognize that an agency is not required to pay attorney’s fees at the pre-complaint stage but is exercising its discretion to do so.

Written by June Kalijarvi


Tuesday, September 3, 2013

“Hundreds of Thousands” of Federal Employees Lose Civil Service Rights

Devon Northover was GS-7 Commissary Management Specialist for the Defense Commissary Agency (DCA). His work involved managing the commissary, or grocery store, on a US military base in Alabama.  His position did not require that he have a security clearance, because he did not have access to “classified information.”  However, the Department of Defense had designated his position as “non-critical sensitive,” which is defined as “a position with potential to cause harm to national security.” 

Unfortunately, Northover got behind in paying his bills, and as a result, DCA informed him that he was no longer “suitable” to hold his position.  As a federal employee, he appealed this decision to the Merit Systems Protection Board.  In response, DCA argued that the MSPB had no jurisdiction to review the merits of DCA’s decision, citing Department of the Navy v. Egan, 484 U.S. 518 (1988).  Egan was a controversial Supreme Court decision holding that the MSPB had no jurisdiction to review Department of Defense decisions to deny employees access to classified information, in other words, security clearances. 

The MSPB held that Egan did not apply, because Northover’s case did not involve a security clearance issue.  But on August 20, 2013, the US Court of Appeals for the Federal Circuit overturned that decision, holding that Egan cannot be confined to security clearance determinations.  Instead, Egan prohibited courts from “second-guessing DoD national security determinations concerning eligibility of an individual to occupy a sensitive position, which may not necessarily involve access to classified information."  The Court held that even employees without access to classified information can affect national security. The case is Kaplan v. Conyers, Case 11-3207.

One interesting exchange that had occurred at oral argument became a noteworthy part of the decision.  The discussion involved how it could be that someone who worked in a grocery store on an Army post could be a national security position.  The government argued that if the store’s stock of sunglasses or Gatorade was suddenly depleted in the wintertime, it could be a hint that soldiers on that post had been given deployment orders to a hot climate.  This assertion appeared somewhat laughable at the time, especially since no one mentioned the fact that any other shoppers, such as military spouses, also would have access to this same information, simply by noticing that an item was depleted on the empty shelves.

Nevertheless, the judge writing for the majority obviously found this argument persuasive:

Commissary employees do not merely observe “[g]rocery store   stock levels” or other-wise publicly observable information... In fact, commissary stock levels of a particular unclassified item – sunglasses, for example, with shatterproof lenses, or rehydration products – might well hint at deployment orders to a particular region for an identifiable unit. Such troop movements are inherently secret...This is not mere speculation, because ... numbers and locations could very well be derived by a skilled intelligence analyst from military commissary stock levels.

The dissent accurately noted that the Supreme Court in Egan expressly noted that it was deciding the “narrow question” of whether the MSPB had the authority to review the substance of an underlying decision to deny or revoke a security clearance,” and that the majority therefore improperly extended Egan to a case that did not involve a security clearance determination:

The majority opinion upholds sweeping claims by the Department of Defense ("DoD") that it may take adverse actions against non-critical sensitive employees without review by the Merit Systems Protection Board ("MSPB" or "Board"). The effect is to effectively deny MSPB review for hundreds of thousands of federal employees--a number that is likely to increase as more positions are designated as non-critical sensitive.

It is expected that Northover, who is represented by the American Federation of Government Employees, will ask the Supreme Court to review this decision. 

If you have been denied a security clearance, the lawyers at Kalijarvi, Chuzi, Newman & Fitch can help you with your appeal and advise you about your rights.  Call Elizabeth Newman, author of the leading text on security clearances, "Security Clearance Law and Procedure," available from the publisher, Dewey Publications.