Suitability and Fitness Determinations: How they Differ from Security Clearance Actions
Potential clients end up calling our offices all the time and the story similar, “I’ve been denied a security clearance and I need help!” When it comes time for the appointment and the individual shares their documentation, it is apparent that they have not been denied a security clearance, they have been denied or are proposed to be denied Suitability or Fitness to work as a Government Employee or Contractor.
Suitability and Fitness actions are most commonly associated with High Risk and Moderate Risk Public Trust Positions and an individual can be denied or proposed denial of suitability for a myriad of reasons as discussed in Title 5 of the Code of Federal Regulations, Part 731 (5 CFR 731). Specifically, the Office of Personnel Management (OPM) or an Agency with Delegated Authority can deny or propose denial of suitability based upon the following criteria:
(1) Misconduct or negligence in employment;
(2) Criminal or dishonest conduct;
(3) Material, intentional false statement, or deception or fraud in examination or appointment;
(4) Refusal to furnish testimony as required by §5.4 of this chapter;
(5) 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;
(6) Illegal use of narcotics, drugs, or other controlled substances without evidence of substantial rehabilitation;
(7) Knowing and willful engagement in acts or activities designed to overthrow the U.S. Government by force; and
(8) Any statutory or regulatory bar which prevents the lawful employment of the person involved in the position in question.
When reviewing the negative information developed about an individual, the adjudicating entity must take into consideration the “Additional Considerations”, which are:
(1) The nature of the position for which the person is applying or in which the person 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 of the person involved at the time of the conduct;
(6) Contributing societal conditions; and
(7) The absence or presence of rehabilitation or efforts toward rehabilitation.
However, Suitability and Fitness determinations are not always made by OPM or Authorized Agencies and do not always entitle the individual with an appeal. For example, some intelligence agencies are permitted to deny individuals suitability for employment without the opportunity to appeal.
How Suitability Differs from Security Clearance Actions
Suitability & Fitness determinations are not the same as Security Clearance denials and revocations. First and foremost, a Security Clearance denial and/or revocation entitles individuals the right to appeal that decision assuming they are still sponsored, whereas a suitability and fitness determination is not always appealable. Executive Order 12968 grants individuals the right to appeal Security Clearance Denials. The Adjudicative Criteria, called the National Security Adjudicative Guidelines, are contained in Security Executive Agent Directive 4 (SEAD 4). These guidelines establish the criteria that derogatory information should be adjudicated against when deciding whether an individual is eligible to possess a Security Clearance. In their shortest form, the criteria are as follows:
(1) GUIDELINE A: Allegiance to the United States
(2) GUIDELINE B: Foreign Influence
(3) GUIDELINE C: Foreign Preference
(4) GUIDELINE D: Sexual Behavior
(5) GUIDELINE E: Personal Conduct
(6) GUIDELINE F: Financial Considerations
(7) GUIDELINE G: Alcohol Consumption
(8) GUIDELINE H: Drug Involvement and Substance Misuse
(9) GUIDELINE 1: Psychological Conditions
(10) GUIDELINE J: Criminal Conduct
(11) GUIDELINE K: Handling Protected Information
(12) GUIDELINE L: Outside Activities
(13) GUIDELINE M: Use of Information Technology
You will notice that several of the guidelines are similar to the Suitability & Fitness criteria. This is a benefit to those individuals facing a Suitability action because within SEAD 4, Appendix A, each of the Adjudicative Guidelines is expanded upon to include “conditions that can raise a security concern” and “conditions that can mitigate security concerns”. 5 CFR 731 does not contain examples of conditions that can mitigate suitability concerns, and because these two adjudicative criteria are so similar, individuals can look to SEAD 4 for great examples of ways to mitigate and argue suitability issues.
Understanding the documentation you receive and whether it is a Security Clearance action or Suitability & Fitness action can sometimes be hard to distinguish. To figure it out it is helpful to look for key words. For example, Security Clearance denial and revocation documents are for the most part called “Statement of Reasons” and people refer to them as “SOR”. However, they have also been called Clearance Decision Statements, Revocation Decision Statements, Letter of Intent (LOI) and other names. When Suitability and Fitness actions are delivered they are frequently titled as “Notice of Proposed Action” or “NOPA” and sometimes referred to as Letter of Intent (LOI). Also, you can look for different regulations. If a document contains “5 CFR 731”, it is likely a suitability action, whereas if it contains “SEAD 4”, it is likely a security clearance action.
At the Law Offices of Henault & Sysko, we understand that Suitability and Security Clearance actions can be a complicated, confusing, and stressful time. We have years of experience assisting clients with those issues, and we would like to assist you as well. Feel free to call our office at 410-768-9300 or submit an inquiry through our website at https://www.hsclaw.com/contact-us/