Suitability and Appeals
We specialize in representing federal employees, government contractors, and applicants in suitability responses and appeals. If you are facing a suitability denial or appeal, it is essential to seek the advice of a lawyer who is familiar with these issues. Our team of experts can assist individuals in all stages of the suitability process. This includes providing legal representation during the investigation, response, and appeals process. Our lawyers provide legal advice and representation to individuals throughout the United States before all federal agencies.
Suitability
Suitability is a review of an individual's background by a federal agency. It can also be referred to as a fitness investigation. Potential suitability issues can arise when a background investigation is completed, or new events occur. After the completion of a suitability investigation, federal agencies review the results. The focus of a suitability investigation is 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. It's important to note that a suitability determination is different from a security clearance investigation, although the two processes are often 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
- Psychological conditions
Unlike a security clearance, which focuses on national security risks, a Suitability Determination under 5 CFR 731 focuses on whether your conduct protects the integrity and efficiency of the service. A "Proposal to Debar" or a "Negative Fitness Determination" can effectively ban you from federal employment for up to three years. Our firm spexializes in drafting the written responses to the notice of proposed action, ensuring your side of the story is documented before a final decision is made.
Suitability Responses and Appeals
Suitability issues can arise during an individual's initial application 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. Many individuals can appeal denials to the Merit Systems Protection Board (MSPB). 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 responses and appeals involve preparing a detailed written response to any negative issues identified by the agency. Additionally, exhibits will often need to be submitted, and these may include character letters, evidence of good performance, resumes, and other supporting documents.
A federal job applicant received a "Notice of Proposed Action" proposing a three-year debarment from federal service due to alleged "material, intentional false statements" on their SF-85P. We drafted a comprehensive response demonstrating that the omissions were unintentional and provided evidence of the client's high character.
Result: The agency withdrew the debarment and found the applicant suitable for the position.
A high-level candidate for a competitive service position was flagged for "misconduct or negligence" in a previous role. We successfully argued that the incident was an isolated event from early in the client's career and utilized the "Whole Person Concept" to show significant professional growth.
Result: Preliminary denial reversed; candidate hired.
A defense contractor was issued a negative fitness determination based on financial issues. We represented the individual in an appeal, proving that the debt was handled responsibly through a repayment plan.
Result: Negative determination vacated, allowing the client to return to the contract site.