Suitability Determinations

Experienced Suitability Determination Lawyers Representing Prospective and Current Federal Personnel

Attorney Nick OberheidenSecurity Clearance Denials and Revocations
Team Lead

If you have received an unfavorable suitability determination, this could have a drastic impact on your career in federal service. Whether you are in the process of seeking a position within the federal government or senior executive service or your suitability has been reassessed during your tenure, you will want to consult with an experienced suitability determination lawyer to learn what options you have available.

Many federal employees with concerns about unfavorable suitability determinations also have concerns about security clearance. Suitability determinations differ from security clearance investigations—though both can involve matters related to national security. As the National Counterintelligence and Security Center (NCSC) explains:

“A security clearance investigation is an inquiry into an individual’s loyalty, character, trustworthiness and reliability to ensure that he or she is eligible for access to national security information. . . . A suitability investigation is an inquiry into a person’s identifiable character traits and conduct sufficient to decide whether an individual’s employment or continued employment would or would not protect the integrity or promote the efficiency of the service.”

Since suitability determinations and security clearance investigations serve different purposes, the processes—and the focuses of these processes—are different as well. At Oberheiden P.C., we represent prospective and current federal personnel in both types of matters. If you need to challenge a suitability determination, we can guide you through the process while taking formal legal action on your behalf as warranted. If you also need to challenge the denial or revocation of a security clearance, we can assist with this as well.

Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester

Former U.S. Attorney

Hon. Kevin McCarthy

55th Speaker, U.S. House of Representatives (ret.)

Government Consultant

Mike Pompeo

Of Counsel

Former U.S. Secretary of State

John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara

Federal Appeals Attorney

Nicholas B. Johnson

Former Prosecutor

Roger Bach

Former Special Agent (DOJ)

Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen

Former Supervisory Special Agent (FBI)

Common Grounds for Unfavorable Federal Suitability Determinations

Challenging an unfavorable federal suitability determination starts with understanding why you have been deemed unfit for federal service. Under 5 C.F.R. Section 731.202, “only the following factors” may be considered when determining a federal candidate’s or employee’s suitability:

Misconduct or negligence in employment;
Criminal or dishonest conduct;
Intentional false statements or engaging in deception or fraud during a suitability determination;
Refusing to provide testimony when required;
Alcohol abuse “without evidence of substantial rehabilitation, of a nature and duration that suggests that the applicant or appointee would be prevented from performing the duties of the position in question, or would constitute a direct threat to the property or safety of the applicant or appointee or others;”
Illegal drug use “without evidence of substantial rehabilitation;”
Engagement in acts or activities “designed to overthrow the U.S. Government by force;” or,
“Any statutory or regulatory bar which prevents the lawful employment of the person involved in the position in question.”

As you can see, some of these factors are much clearer than others. Because of this, it is not unusual for federal applicants and employees to dispute their determinations of unsuitability. If you have been deemed unsuitable for federal employment during probationary or trial period, our lawyers can carefully examine the relevant agency’s findings, and then we can make an independent assessment of your suitability based on the relevant facts and relevant law.

How to Challenge an Unfavorable Federal Suitability Determination

If you have grounds to challenge your unfavorable federal suitability determination, such as criminal conduct, you will need to do so through the appropriate channels. While individual circumstances vary, there are four main stages in this process:

Address Any Inaccuracies or Other Issues During Your Suitability Investigation

For many applicants and employees, the first stage is to address any inaccuracies or other issues during the suitability investigation process. If you can resolve the agency’s concerns to prior favorable suitability determination, this can streamline the process of securing your position in the federal government while also sidestepping the inherent risks involved with challenging a final determination.

Seek a Post-Determination Resolution with the Agency or the Office of Personnel Management (OPM)

When informing applicants and employees of unfavorable suitability determinations, federal agencies must disclose the materials they relied upon in making their determinations, and they must provide a reasonable opportunity to respond. If it is too late to avoid an unfavorable suitability determination, then you will need to focus on crafting a clear and comprehensive response (which may include supporting declarations and affidavits) that explains why the agency’s decision is unwarranted.

Challenge Your Unfavorable Suitability Determination with the Merit Systems Protection Board (MSPB)

If you cannot obtain a favorable resolution at the agency level, then the next step may be to file an appeal with the Merit Systems Protection Board (MSPB). To uphold an unfavorable suitability determination, the MSPB must conclude that the agency’s decision is supported by a preponderance of the evidence.

Challenge Your Unfavorable Suitability Determination in Federal Court

If the MSPB upholds your unfavorable suitability determination, or if you are not eligible to file an appeal with the MSPB, then the next stage may be to go to federal court. We can take your suitability determination case to federal court if necessary, and we can use our experience on both sides of federal litigation proceedings to protect your rights by all means available.

How Our Federal Suitability Determination Lawyers Can Help

We offer several forms of assistance to federal applicants and employees who are facing the consequences of unfavorable suitability determinations. If you have lost (or are at risk of losing) your eligibility for federal employment, here are just some of the ways our federal suitability lawyers may be able to help:

Conducting an Independent Assessment of Your Suitability – Our lawyers can conduct an independent assessment of your suitability in order to determine what options you have available.
Gathering Documentation to Establish Your Suitability – If you have grounds to challenge your suitability determination, we can work quickly to gather the documentation needed to establish your suitability.
Intervening in the Suitability Determination Process (if Possible) – If it is not too late, we can intervene in the suitability determination process and seek to avoid the need for a formal challenge or appeal.
Challenging Your Unfavorable Suitability Determination – If it is too late to prevent an unfavorable suitability determination, we can challenge your determination at the agency with delegated authority, at the MSPB, and/or in federal court as necessary.
Assisting with Fitness Determinations, Security Clearance Denials, and Other Related Matters – Our lawyers can also assist with unfavorable fitness determinations, security clearance denials, and other matters related to national security.

We represent clients ranging from rank-and-file federal personnel to senior federal officials—and our team includes former senior federal officials, members of Congress, and U.S. Department of Justice (DOJ) attorneys. To discuss your situation with one of our senior attorneys in confidence, contact us to arrange a confidential consultation today.

FAQs: Challenging Your Federal Suitability Determination

What are the Consequences of an Unfavorable Suitability Determination?

Unfavorable suitability determinations can have serious consequences for federal personnel and job applicants. Depending on your current federal employment status, being deemed “unsuitable” could result to non-preference eligible for federal employment, removal from your current position, loss of reinstatement eligibility, or debarment from federal employment for up to three years.

How Do I Challenge an Unfavorable Suitability Determination?

Once you receive an unfavorable suitability determination, you will want to consult with a lawyer regarding your options for challenging the determination as soon as possible. Along with flaws in the suitability determination process (i.e., overlooking or misinterpreting relevant documentation), other factors that can impact suitability determinations include:

The nature of the relevant covered position;
The nature of the conduct at issue;
The circumstances surrounding the conduct at issue;
The recency of the conduct at issue;
Your age at the time of the conduct at issue;
Any contributing societal considerations or conditions; and
Any rehabilitation or efforts toward rehabilitation.

How Do You File an MSPB Appeal for a Suitability Determination?

Individuals who need to challenge unfavorable suitability determinations with the Merit Systems Protection Board (MSPB) must follow a stringent set of substantive and procedural requirements. Due to the significant consequences of being deemed unsuitable for federal employment, it is strongly recommended that you hire an experienced attorney to assist with your MSPB appeal.

What is the Difference Between a Suitability Determination and a Security Clearance?

While security clearance investigations focus on personal contacts and other matters related specifically to national security, suitability determinations focus more on past personal conduct. However, as this past personal conduct can include actions that have (or had) national security implications, similar issues can arise in both of these federal personnel matters.

Can (and Should) I Hire a Lawyer to Appeal My Federal Suitability Determination?

Yes, if you need to appeal an unfavorable federal suitability determination, we strongly recommend engaging an experienced lawyer to assist you. Due to the complexity of the issues (and the substantial risks) involved, suitability action is not something that most individuals should handle on their own. If you would like to speak with a federal suitability lawyer at Oberheiden P.C., contact us to arrange a confidential consultation today.

Speak with a Federal Suitability Determination Lawyer at Oberheiden P.C. in Confidence

To discuss your federal suitability determination with a senior lawyer at Oberheiden P.C., call 888-680-1745 or contact us online. We will schedule your confidential consultation as soon as possible.