Security Clearance Law Blog

Suitability Appeals for Federal Employees and Applicants

By John V. Berry, www.berrylegal.com

Suitability determinations are an increasingly important issue for federal government applicants and federal employees. The process of successfully navigating suitability concerns has at the same time become more complex due to the ever-increasing security concerns of the United States Government. Our firm serves as suitability lawyers for federal employees and applicants who encounter difficulties in the suitability process.  

What is Suitability?

Federal employment positions often include important duties that do not require a security clearance but are sensitive in nature. Hence, a suitability or background investigation is required in order to hold the position.  For instance, included in these types of positions are certain types of federal law enforcement officers, IT professionals, comptrollers, and public safety and health workers.  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.

Public Trust/Suitability Investigations  

The first step in a suitability, background or public trust investigation often comes from an individual’s completion 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 (interrogatories) and/or interviews regarding areas of concern.

Areas of Suitability Concern

When making suitability concerns, under 5 C.F.R. § 731.202, an 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.

Initial Response to Suitability Issues

Should background security issues not be resolved during the investigation, a federal agency and/or the Office of Personnel Management (OPM) can take what is known as a suitability action. 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. During suitability actions, a federal applicant or employee will be given notice of the suitability issues and be given an opportunity to respond to these issues. The goal of a response is to mitigate or show that the allegations are not warranted.

Under 5 C.F.R. § 731.202 (a) and (b), federal agencies and OPM must consider the following considerations in mitigating 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.

An applicant or employee will normally be provided the opportunity to respond to the suitability concerns within a short period of time, often 30 days. In that response, it is critical to seriously rebut the allegations at issue. This can often include providing documentation rebutting the allegations, and character affidavits and/or declarations. If a suitability action is sustained, then an appeal is needed.

Suitability Appeals

If an applicant is deemed unsuitable, depending on their federal employer they may be able to appeal the suitability denial to the agency or to the Merit Systems Protection Board (MSPB). Each federal agency varies with respect to suitability rights. If the case is before 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 must be remanded to OPM or the agency for a determination as to whether the original action was appropriate. If the case is before a federal agency instead of the MSPB, they have discretion to overturn the suitability determination. Some federal agencies do not provide appeal rights in suitability cases.

Contact Us

When an individual is facing suitability issues or a suitability appeal it is important to obtain legal advice and legal representation. Our attorneys can advise employees on areas of the SF-85,  SF-85P and SF-86 or other related suitability documentation that require additional care and attention. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. 

NSA Security Clearance Process

By John V. Berry, Esq., www.berrylegal.com

As we have mentioned in other articles, the U.S. Government security clearance process is not centralized and varies somewhat between federal agencies. In addition to security clearances processed by the Department of Defense (DOD), other federal agencies have their own procedures and personnel that process their own security clearance decisions for federal employees and government contractors  (e.g. DOS, DHS, DOI, NGA, DOE, NRO, CIA, etc). The National Security Agency (NSA) is an agency with its own security clearance process. This article addresses the security clearance process at the NSA for security clearances and Sensitive Compartmented Information (SCI) access. For NSA security clearance cases, you should retain counsel familiar with the process.

The Clearance Process at NSA

The security clearance process at NSA is somewhat similar to the procedures for DoD employees, but there are some differences.  The NSA follows the intelligence agency policies regarding the processing of security clearances and SCI access. The following are the normal steps in the security clearance review process for NSA clearance holders or applicants when they are confronted with security clearance issues.

Step 1: Revocation / Clearance Decision Statement Letter is Issued

When a federal, military or contractor employee has a security clearance or SCI access issue with NSA, they will receive a revocation or denial letter from the NSA, listing the background and security concerns at issue. The individual will usually then be given 45 days in which to request a review of the security concerns and respond to the security concerns in writing. The investigative file, upon which the denial is based, will usually be included by the NSA as well to facilitate a response by the individual.  The investigative file will usually include reports and/or other items relevant to the security concerns.  

Step 2: Responding to the Revocation / Denial Letter

At this stage, the individual responds to the revocation or denial letter from the NSA. A response should address the security concerns at issues, e.g. Guideline E, Personal Conduct, or other issues and focus on the potential mitigation of the security concerns.  It is important to provide documentation, such as declarations, affidavits, and other documentation relevant to the security concerns at issue.  

Step 3: Decision by Office of Personnel Security on First Appeal Review Level

Once the appeal from the individual is received, it will be reviewed and the NSA Office of Security will issue a decision as to whether or not the security concerns have been dismissed or mitigated. If so, the matter is then resolved. If not, the individual will be provided a decision, usually a page or two in length, discussing the reasons why the First Appeal was denied and of the right to a final appeal before the NSA Access Appeals Panel.  The First Appeal may indicate that some of the items have been mitigated, but that others have not been.  

Step 4: Review by NSA Access Appeals Panel

The next step in the NSA security clearance process is for the employee to appeal to the NSA Access Appeals Panel. This is an in person appeal where the individual can be represented by counsel in presenting evidence and argument as to why the security clearance or SCI access decision should be overturned. During this personal appearance before the Access Appeals Panel, the individual can present documents in support of keeping their security clearance to the panel. The panel, usually consisting of about 4 members (along with other personnel present), will often ask a number of questions about the security concerns at issue.

Step 5: NSA Access Appeals Panel Decision

Following the personal appearance, the NSA Access Appeals Panel issues a decision, either granting the clearance or access (or continued processing) or a denial.  There is also the process of re-applying for a clearance with the NSA in the future after a waiting period following a denial.  

Contact Us

When an individual is facing security clearance issues at NSA it is important to obtain legal advice and potential representation. Our law firm represents individuals in the security clearance process before the NSA. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.