Suitability Determination Lawyer

If you are facing suitability issues or are interested in filing a suitability appeal, you should contact a suitability determination lawyer.  We can assist federal government employees and applicants at any stage throughout the suitability process – including the investigation, response, and/or appeals process.  Moreover, since this is a federal area of law, our nationwide suitability determination lawyers can provide assistance throughout the United States.

What is a Suitability Determination?

Not all federal employment positions require security clearances (e.g., Confidential, Secret, Top Secret). However, federal employment positions are sensitive in nature and, accordingly, require a high level of integrity and trust. As such, the federal government requires its employees and contractors to be considered “suitable for employment” and fit to perform work on behalf of the federal government. Examples of federal positions that require suitability determinations would include federal law enforcement officers, IT professionals, and health workers.

Suitability refers to an individual’s character and conduct in order to decide whether employment (or continued employment) would or would not “protect the integrity of the service.” Thus, suitability is distinct from whether or not a person is “qualified” to perform a job,  as measured by experience, knowledge, education, and/or skills.

Pursuant to the authority delegated by the President of the United States under 5 U.S.C. § 1104, 5 U.S.C. § 3301, Executive Order 10577, and 5 C.F.R. § 731, persons who seek admission to the civil service must undergo an investigation in order to establish their suitability for employment. Suitability adjudication, denial, and due process procedures are governed by 5 C.F.R. § 731.

Covered positions include: (1) competitive service positions; (2) career appointments in the Senior Executive Service; and (3) excepted service positions that can be noncompetitively converted to competitive service. The designation of covered positions is defined in 5 C.F.R. § 731.106.

Federal employees and/or applicants requiring access to facilities, information technology systems, or Sensitive Information will be subject to an investigation based on the risk level of their position.  The levels of risk are as follows:

  1. High Risk. These positions have the potential for an exceptionally high impact on the integrity and efficiency of the federal government. Usually requires a Background Investigation (BI).

  2. Moderate Risk. These positions have the potential for moderate to serious impact on the integrity and efficiency of the federal government. Usually requires a Minimum Background Investigation (MBI).

  3. Low Risk. These positions have the potential for a limited impact on the integrity and efficiency of the federal government. Usually requires a National Agency Check with Inquiries (NACI) background check.

As the risk level increases, character and conduct (or suitability) becomes more and more important in deciding whether employment would protect the integrity of the federal service. Public trust positions, for example, are designated as moderate or high risk since these positions involve a high degree of public trust. Therefore, these positions involve a higher degree of investigation.

In order to begin the suitability investigation, an individual will complete an SF-85 (Non-Sensitive Positions)’ an SF-85P (Public Trust Positions); or an SF-86 (National Security Positions). In addition to completing these forms, the investigation can include interrogatories (information requests) and interviews.

How Should I Answer the Relevant Form?

In completing your SF-85, SF-85P, or SF-86, you should be sure to provide accurate, complete, and honest answers to all questions. False information is prohibited by law and any information that you provide will be verified during the investigation process.

If you are unsure of how to answer any questions, you can contact the suitability determination lawyers at Brett O’Brien for a consultation. Generally speaking, if you are uncertain about whether to provide certain information, it is usually best to provide the information with clarification, as adjudications may interpret the omission as falsification of your forms, which can quickly eliminate your opportunity to pursue federal employment.

Suitability Concerns

Upon completion of the appropriate level background investigation, applicants will undergo suitability reviews. Suitability investigations delve into an individual’s past in order to gather information to help determine whether the individual is suitable for federal employment.

Suitability investigators can consider:

  • Employment records;
  • Financial records;
  • Criminal records;
  • Psychological issues;
  • Foreign travel;
  • Education records;
  • Drug or alcohol issues; and
  • References.

When making a suitability determination, the Office of Personnel Management (OPM) will consider the following criteria for making suitability determinations, as set forth in 5 C.F.R. § 731.202:

  1. Misconduct and/or negligence with regard to prior employment;

  2. Criminal conduct or other dishonest conduct;

  3. False statements, fraud, and/or deception;

  4. Refusal to provide testimony;

  5. Alcohol abuse;

  6. Drug abuse;

  7. Knowing and/or willful engagement in acts designed to over the government by force; and/or

  8. Any other statutory or other bar that prevents lawful employment of the person at issue.

Most suitability cases involved financial issues, truthfulness, employment misconduct, alcohol or drug issues, or past criminal charges.

Usually, notice of suitability concerns will come in the form of a notice of potential suitability or through a request for additional information or interrogatories from a federal agency. These notices require a full and serious response, otherwise the employee or applicant is likely to be deemed unsuitable and potentially debar them from future federal employment for a period of time.

What if I was Already Determined to be Suitable or Fit for Federal Employment?

If you were previously determined to be suitable, no new suitability determination is required unless:

  • Your new position requires a higher degree of investigation;
  • New conduct or information calls suitability into question; or
  • There is a break in service of more than 2 years.

Federal employees in High Risk positions are reinvestigated every five years, or more frequently is circumstances warrant. Federal employees in Moderate to Low Risk positions are reinvestigated every ten years, or more frequently is circumstances warrant.

How Should I Respond to the Suitability Determination?

If any suitability issues are not corrected during the investigation stage, the relevant federal agency and/or the OPM can take a suitability action.  A suitability action (defined in 5 C.F.R. 731.203) is an outcome taken by OPM or an agency in response to an unfavorable suitability determination. There are four suitability action categories that vary depending on the personnel category.

The personnel category are as follows:

  1. Applicant. A person who is being considered for employment.

  2. Eligible. A person whose name has been placed on a list of eligible personnel.

  3. Appointee. A person who has started duty and is in the first year of subject-to-investigation appointment.

  4. Employee. A person who has completed the first year of a subject-to-investigation appointment.

The suitability actions applicable to these personnel are:

  • Cancellation of eligibility: Applies to applicants and eligibles and indicates that they are not eligible for employment;
  • Removal: Applies to appointees or employees and indicates a removal from the current position;
  • Cancellation of reinstatement eligibility: Applies to appointees or employees and indicates that the person is not eligible for reinstatement to the position that they currently hold;
  • Debarment: applies to all four categories of personnel and means that the person is prohibited from being hired for a specified period of time (up to three years).

If an unfavorable suitability determination is made, the federal employee or applicant will be given notice of the suitability issue and will be given the opportunity to respond to the issue.  Agencies must give reasonable notice to the applicant in writing and must set forth the materials relied on in arriving at the determination, set forth the time limits within which the applicant must respond to the determination, and provide information regarding the procedure to appeal the determination.

When responding to a suitability determination, it is important to seriously rebut the allegations at issue. This will oftentimes include supporting documentation. In addition, character affidavits and/or declarations should be submitted.

The goal of the response is to mitigate (or reduce) the concern or to show that the allegations are incorrect. Pursuant to 5 C.F.R. § 731.202(c), the federal agency or OPM “must” consider the following factors when mitigating suitability issues:

  1. The nature of the position;

  2. The nature of the conduct;

  3. The circumstances surrounding the conduct;

  4. The age/recency of the conduct;

  5.  The age/maturity of the person at the time of the conduct;

  6. Contributing societal conditions; and/or

  7. Any rehabilitation or efforts toward rehabilitation.

Suitability responses should focus on how the allegations are incorrect or not as significant as noted. In addition, they should focus on mitigating circumstances, such as the recency of the conduct, the age/maturity of the applicant at the time of the offense, and any rehabilitation efforts, such as drug or alcohol counseling. In addition, applicants can show that they are reliable and trustworthy through letters of reference, from employers, supervisor, coworkers, etc. or through awards, performance ratings, etc. Other documentary evidence showing charitable contributions, volunteer services, etc. should also be submitted.

Suitability considerations can begin at any point in the hiring process, but the investigation oftentimes does not begin until after the employee is hired. A determination that the employee or applicant is unsuitable must be completed within the first year of employment. If the agency determines to take a suitability action, it may remove the new hire or even debar them for up to three years.

How Long Do I Have to Respond to the Suitability Determination?

The letter setting forth the suitability determination will contain specific information relating to the time in which you must respond to the suitability determination.  In general, however, applicants will have between 15 to 30 days to respond.

What If I Disagree?

If your suitability action is maintained after being given the chance to respond then – depending on your federal employer, you can appeal the determination to the Merit Systems Protection Board (MSPB).  The MSPB, in turn, must conclude that the suitability determination has been proven by a preponderance of the evidence.

Nationwide Suitability Determination Lawyers

If you are the subject of suitability concerns, please be advised that you do not need to hire a local lawyer. This due to the fact that this is a federal practice area.  Moreover, a local lawyer might not have the experience in this area of law.

The suitability determination lawyers at Brett O’Brien Law, LLC, can assist you at any stage of the suitability process. Contact us today for a free consultation at 202-600-4996.

Additional Resources

The Suitability Guide for Employees – complete guide from the Department of Defense (DoD) on suitability issues

DHS Instruction Handbook 121-01-007 – DHS handbook on personnel and suitability security program

DoD Suitability and Fitness Guide – procedures and guidance for civilian employment suitability and fitness determiantions within the DoD.

5 C.F.R. 731 — applicable Code of Federal Regulations relating to suitability determinations

SF-85 (Non-Sensitive Positions)

SF-85P (Public Trust Positions)

SF-86 (National Security Positions)

SECURITY CLEARANCE DENIED OR REVOKED

If you are appealing a security clearance determination, it is imperative that you obtain experienced legal representation. Doing so will provide you with the best opportunity to obtain or maintain your clearance.

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