Suitability Determinations (Including SF-85 / SF-86 Issues)

Protecting Your Federal Career Starts with Protecting Your Reputation

When the federal government hires someone, it’s not just filling a job — it’s placing trust in a person. Every applicant, employee, and in some cases contractor must prove they are reliable, honest, and of good character.

That process is called a suitability determination. It’s one of the most misunderstood — and most consequential — parts of the federal employment system.

At National Security Law Firm (NSLF), our attorneys have handled suitability and fitness cases from both sides of the table as former agency counsel. We know exactly how OPM and agency HR offices evaluate applicants, how they interpret your SF-85 or SF-86 answers, and how to overturn findings that threaten your future.

Whether you just received a Notice of Potential Suitability Issue, a Request for Information, or an outright Notice of Unfavorable Determination, our lawyers can intervene immediately to protect your record and restore your eligibility.

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What Is a Suitability Determination?

Suitability is a legal term describing whether your character and conduct demonstrate the integrity necessary for federal service. It’s about trustworthiness — not qualifications or technical skills.

Federal agencies must ensure that every hire will protect the integrity and efficiency of the service, as required by 5 C.F.R. Part 731.

Covered Positions

Part 731 applies to:

1. Competitive service positions,

2. Career appointments in the Senior Executive Service (SES), and

3. Excepted-service positions that can be non-competitively converted to the competitive service.

Other excepted-service positions — such as many intelligence, Postal, or legislative branch roles — are governed by separate fitness or credentialing standards, not Part 731.

Suitability vs. Fitness vs. Security Clearance

Understanding which process applies to you is critical — and it’s where many applicants make avoidable mistakes.

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The Modern Investigative Framework

Risk Levels and Investigation Tiers

Under OPM’s Trusted Workforce 2.0, investigations are structured by risk tier rather than the old “NACI/MBI/BI” labels:

Many positions are now under continuous vetting (CV) — ongoing automated checks that replace 5- or 10-year reinvestigations.

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The Forms: SF-85, SF-85P, and SF-86

These forms are the foundation of every investigation. They feed into e-QIP or eApp and become permanent government records.

Accuracy and honesty are non-negotiable. False statements can trigger removal, debarment, or even criminal liability under 18 U.S.C. § 1001.

Pro Tips When Completing Your Forms

• Read every question twice. Many ask about ever vs. last 7 years — a crucial distinction.

• Explain, don’t omit. If something might raise a question, disclose it with context. Omissions are viewed far worse than admissions.

• Maintain copies. Always keep a PDF or printout of what you submitted.

• If unsure, ask. NSLF regularly reviews draft SF-85/SF-86 forms to prevent errors that could later be construed as falsification.

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How the Government Evaluates Suitability

After your investigation, adjudicators evaluate your record using the criteria in 5 C.F.R. § 731.202(a). These include:

1. Misconduct or negligence in employment;

2. Criminal or dishonest conduct;

3. Material, intentional false statements or deception;

4. Refusal to furnish testimony or information;

5. Alcohol or drug abuse affecting reliability;

6. Knowing and willful attempts to overthrow the Government by force; and

7. Any statutory or regulatory bar to employment.

Common Real-World Triggers

• Unreported arrests or charges later found in court databases.

• Financial delinquencies or pattern of non-payment.

• Past employment misconduct or poor attendance records.

• Inconsistent answers between SF-85/SF-86, interviews, and references.

• Falsification allegations (often from misunderstanding questions).

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How You Learn There’s a Problem

Most applicants first discover issues through:

• A Notice of Potential Suitability Concern;

• A Request for Additional Information (interrogatory); or

• A Proposed Action (removal, cancellation, or debarment).

These notices must explain the reasons, cite the evidence, and give you a chance to respond — typically 15 to 30 days.

Ignoring or submitting a weak response almost guarantees an unfavorable determination and possible debarment for up to 3 years.

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Responding Strategically

A successful response does three things: rebut, mitigate, and humanize.

1. Rebut the facts. Point out errors, outdated information, or context the investigator missed.

2. Mitigate the concern. Provide documentation of rehabilitation — credit reports, completion of counseling, repayment plans, letters from supervisors, awards, or community service.

3. Humanize your story. Show growth, maturity, and accountability. Suitability is forward-looking: can the government trust you today?

Agencies must weigh mitigating factors under § 731.202(c):

• The nature and seriousness of the conduct;

• Surrounding circumstances;

• Recency and frequency;

• Age and maturity at the time;

• Societal conditions; and

• Evidence of rehabilitation.

NSLF attorneys build responses that blend legal precision with persuasive storytelling — exactly what federal adjudicators expect to see.

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The Possible Outcomes

If issues remain unresolved, the agency or OPM may take one of four suitability actions under § 731.203:

After the first year of service, most agencies use adverse-action procedures (5 C.F.R. Part 752) instead of Part 731 for removals.

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Appeal Rights

If OPM issues the action — or the agency acts under OPM-delegated authority — you can appeal to the Merit Systems Protection Board (MSPB).

The MSPB must find the decision supported by a preponderance of the evidence. NSLF routinely represents clients in these appeals and has secured reversals where agencies failed to meet that burden.

If the agency lacks OPM delegation, internal review through OPM precedes any MSPB appeal.

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The Role of Continuous Vetting

Even after you pass an initial check, you’re never completely “finished.” Under Trusted Workforce 2.0, most employees are enrolled in continuous vetting (CV) — automated record checks that flag new arrests, credit issues, or foreign travel.

That means a suitability issue can arise years into service. A quick, professional response can prevent escalation to removal or debarment.

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Why Early Legal Help Matters

Suitability is one of the few processes in federal employment law where you may never see the evidence unless you ask — and where the wrong tone in your reply can permanently brand you as “unreliable.”

Our attorneys intervene early to:

• Request and review the investigative file;

• Identify procedural or evidentiary errors;

• Craft persuasive written responses;

• Prepare clients for interviews or hearings; and

• Protect clearance or future-employment eligibility.

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Why Choose National Security Law Firm

When your honesty, reputation, and career are being questioned, you need advocates who understand how federal agencies actually make these calls.

At National Security Law Firm, we’re not outside observers — we are former insiders.

• Jeff Velasco spent more than 20 years as Supervisory Attorney-Advisor at TSA, leading teams that adjudicated hundreds of suitability and disciplinary cases.

• Danielle Moora, former Senior Counsel at CBP and DHS, handled high-stakes personnel actions involving integrity and security-sensitive positions.

• Karen Hickey, with prior service at FTC and DHS, brings deep expertise in investigative law, privacy, and federal personnel policy.

Together, our team combines over 60 years of federal experience — inside the same agencies now investigating you.

We know the internal checklists, the decision-making culture, and the language that resonates with adjudicators. We turn that knowledge into results: restored eligibility, rescinded debarments, and saved careers.

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Book a Free Consultation

A suitability issue doesn’t have to end your federal career — but silence or delay might.

If you’ve received a suitability notice, interrogatory, or debarment proposal, contact National Security Law Firm immediately. We’ll explain your rights, evaluate your case, and craft a response that gives adjudicators every reason to keep you in federal service.

Book your free consultation.

National Security Law Firm: It’s Our Turn to Fight for You.

Explore the Federal Employment Defense Resource Hub

For more strategies on defending your federal career, visit our Federal Employment Defense Hub.

You’ll find:

• Guides to disciplinary and suitability actions.

• Sample response strategies for proposed removals and debarments.

• Insider tips on how agencies evaluate integrity and rehabilitation.

Also read: Finding the Best Federal Employment Lawyer—Why Local Isn’t Always Better.