Suitability Appeals Lawyers

What is Suitability?

Suitability is a federal agency’s review of an individual’s background. It can also be referred to as a fitness investigation. To federal agencies, suitability is important to determine whether an individual is a good fit for the federal agency. As a result, all applicants and employees must undergo a background investigation corresponding to their position’s risk or sensitivity levels. It is also essential for federal agencies to ensure that all individuals working for them are trustworthy and of good character. When issues arise, suitability issues come into play.

How Does the Suitability Process Work?

Potential suitability issues can arise when a background investigation is completed, or new events occur. After completing a suitability investigation, the federal agency reviews the results. A suitability investigation focuses on an individual’s character or past conduct. In most cases, suitability is governed by the Code of Federal Regulations (5 CFR 731). Under these regulations, federal agencies have the authority to conduct suitability determinations to decide if the employment or continued employment of individuals is in the best interests of the federal government. The Department of Defense has published an excellent example of the suitability process. Remember that a suitability determination is different from a security clearance investigation. However, it is often the case that the two processes get confused.

Examples of Suitability Issues That Arise

The following are just a few examples of potential suitability issues that can arise:

• Use of Marijuana/Drug Use;
• Criminal Activity;
• Misconduct in the Workplace;
• Time and Attendance Issues;
• Prior Terminations from employment;
• Excessive Alcohol Use or
• Psychological Conditions

This is not an exhaustive list; many issues can cause suitability issues.

Suitability Appeals

Suitability issues can arise during an individual’s initial application, employment, or re-investigation. If a federal agency denies an individual’s suitability for employment, they should appeal where possible. Suitability or fitness denials can result in not obtaining a position or removal from existing employment. Each federal agency has unique procedures for handling suitability appeals. The Office of Personnel Management (OPM) may handle the suitability process in other cases. Many individuals can appeal suitability denials to the Merit Systems Protection Board (MSPB). Other federal employees may appeal suitability decisions directly to the agency, such as the Department of Homeland Security or Department of State. In suitability appeals, it is crucial to retain counsel to respond to allegations fully and to attempt to demonstrate the individual’s fitness for employment.

Suitability appeals should be taken seriously by applicants and employees. Suitability appeals lawyers know it is necessary to submit a comprehensive defense when issues arise. This process involves preparing a detailed written response to any negative issues the agency identifies. As a result, it is essential to have a suitable lawyer represent you during an appeal. It is common for suitability responses to be ten or more pages long.

Additionally, exhibits will almost always be needed. These often include documents such as witness factual statements, character letters, evidence of good performance, resumes, and other supporting documentation. The type of exhibits needed for a successful suitability response often depends on the exact issues raised. For suitability responses, it is important to provide as much detail as possible about both the factual allegations and the background of the individual at issue. Doing so provides the best chance to overcome suitability issues.

The process of appealing security clearance denial is very different from appealing criminal & civil rulings, so it will be necessary to hire a lawyer who is well aware of these differences and is fully capable of handling this type of case.

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During the appeals process, the Appeals Board will evaluate the original hearing to ensure that the judge adhered to Executive Order procedures. If the security clearance appeals board finds the judge’s decisions arbitrary, contrary to the law, or capricious, the board may reverse the judge’s original order.

Skilled Attorneys Appealing Security Clearance Denials

The best thing you can do to ensure a security clearance appeal is to retain the services of an experienced security clearance attorney early in the security clearance application process. Your lawyer will protect your rights, look out for your best interests during all phases of the adjudication, including the appeal, and will fight hard to obtain a favorable outcome in your case.