Suitability Appeals

By John V. Berry, www.berrylegal.com

Our law firm represents federal employees and applicants in suitability determinations. Suitability determinations are an increasingly important issue for federal government applicants and federal employees given the state of U.S. Government concerns regarding security. Our firm serves as suitability lawyers for federal employees and applicants who encounter difficulties or need legal advice in the suitability investigations and/or representation in the suitability appeals process.

The Suitability Process

Federal employment positions often include important duties that do not require that an individual obtain a security clearance but where a background investigation is required.  As a result, a suitability or background investigation is conducted in order to process the individual for employment. Many types of positions are subject to suitability concerns, such as individuals in IT positions, federal law enforcement, comptrollers / financial positions, and public safety and health professionals.  These positions are often referred to as public trust positions. They are subject to background investigations, which include a National Agency Check and Inquiries (NACI) review, and potential personal interview and reference checks.

Suitability/Background Investigations  

Usually, the first step in a suitability, background or public trust investigation often comes from an individual’s submission of the SF-85 (Questionnaire for Non-Sensitive Positions), SF-85P (Questionnaire for Public Trust Positions) and even occasionally an SF-86 (usually used for secret level clearances). The investigation can also include follow up information requests from the federal agency involved (interrogatories) and/or investigatory interviews regarding any security issues of concerns that have been raised.

Suitability Issues Which Cause Concerns

When evaluating suitability concerns, under 5 C.F.R. § 731.202, a federal agency or OPM will consider:

(1) Misconduct or negligence in employment;
(2) Criminal or dishonest conduct;
(3) Intentional false statements, deception, fraud;
(4) Refusal to furnish testimony;
(5) Alcohol abuse, without evidence of rehabilitation;
(6) Illegal use of narcotics, drugs or other controlled substances, without evidence of rehabilitation;
(7) Knowing and willful engaged in acts designed to over the U.S. Government by force; and
(8) Any statutory or regulatory bar that prevents the lawful employment of the person at issue.

Response to Suitability Concerns

If background or suitability concerns are not resolved during an investigation, a federal agency and/or the Office of Personnel Management (OPM) may take a suitability action against the individual. For most federal agencies, suitability actions are governed by federal regulations at 5 C.F.R. Part 731 and are taken when an employee or applicant is deemed to be unsuitable. Each federal agency may have there own variation of the suitability appeals process. During suitability actions, a federal applicant or employee will be given notice of the suitability (security) issues and will be given an opportunity to respond to these issues. The goal of a suitability response is to mitigate or show that the allegations are not warranted.

Pursuant to 5 C.F.R. § 731.202 (a) and (b), federal agencies and OPM consider the following in mitigating potential suitability concerns:

(1) The nature of the position that the individual is applying for or is employed;
(2) The nature and seriousness of the conduct;
(3) The circumstances surrounding the conduct;
(4) The recency of the conduct;
(5) The age and maturity of the person involved at the time of the conduct;
(6) Contributing societal conditions; and
(7) The absence or present or rehabilitation or efforts towards rehabilitation.

A federal applicant or employee will normally be provided the opportunity to respond to the alleged suitability concerns within a short period of time, often 30 days, typically in writing.  In preparing that written response, it is critical for an individual to take the time needed to seriously challenge the security allegations at issue and provide evidence of mitigation. This can often include providing documentation rebutting the allegations, and providing character affidavits and/or declarations regarding the underlying issues. It is critical to prepare a comprehensive response to the security issues raised, along with documentation of overall good character, work performance, etc.  Many other types of documentation may be needed depending on the issues involved.  If a suitability action is sustained, then an appeal may be required to overturn the result.  A negative action can result in a loss of the position and/or debarment from federal employment for a certain number of years.

Suitability Appeals Before the MSPB

If an applicant is deemed unsuitable, depending on their federal employer, they may have the right to appeal the suitability denial to the Merit Systems Protection Board (MSPB).  The MSPB must find that the suitability allegations against the federal employee or applicant can be shown by a preponderance of the evidence. If the federal employee or applicant is successful in rebutting all allegations made, the matter will be remanded to OPM or the agency for a determination as to whether the original action was appropriate.  Please see our article in Key Points in Responding to Suitability Concerns.

Conclusion

Berry & Berry, PLLC are federal suitability appeals attorneys that handle federal employee and applicant suitability issues and appeals throughout the United States.  Our experienced attorneys have assisted numerous federal government employees and applicants in the suitability process by providing legal advice or representation during the investigation, response and appeals process. In addition, our firm belongs to the Security Clearance Lawyers Association.  Please contact Berry & Berry, PLLC to schedule a consultation with a suitability attorney to discuss the unique aspects of your case.