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Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com.
As I’ve recently written about, many federal agencies are denying employees and contractors positions, or removing them from service entirely, under the auspices of “suitability” or “fitness” for employment.
From a legal perspective, this is a double-edged sword. On one hand, a suitability or fitness case is agency-specific. That means that except for unusually egregious situations – where the matter is reported to the Office of Personnel Management for debarment of the individual from federal service – suitability and fitness cases are viewed more as a human resources consideration than a national security concern. (Usually, debarment is due to material, intentional false statements in the examination or appointment process).
The consequence, besides a non-hiring or removal from service, is typically limited to an inability to re-apply to the same agency for a designated period of time. But nothing about a non-debarment suitability or fitness case prevents an individual from immediately applying to a different agency. In this sense, a suitability or fitness case doesn’t carry the broad scarlet letter of a security clearance denial for future employment opportunities.
On the other hand, the due process one is afforded in fighting these adverse actions is – if at all – governed by a patchwork of agency regulations that afford far less in the way of procedural protections than would a security clearance case.
My personal opinion is that agencies use “suitability” and “fitness” determinations as cagey end-runs around the security clearance due process protections outlined in Executive Order 12968. In essence, suitability and fitness determinations offer much quicker, easier, and more cost-effective means of getting rid of undesirable employees. The problem is that many agencies keep records of such actions only internally – meaning that other agencies have no idea that a sister agency denied employment to an applicant or removed that person from service. Obviously, there is also the serious issue of fundamental fairness to employees.
federal suitability denials on the record
A few agencies do make a practice of reporting suitability and fitness cases in government-wide systems such as the Security and Suitability Investigations Index (SII) accessible through JPAS. That includes the Office of Personnel Management (OPM) and the FBI, which uses a parallel system and reports issues as irrelevant as an inconclusive polygraph examination. In this author’s experience, however, some of the more pervasive users of suitability and fitness determinations (for example, the Departments of State, Homeland Security, and Treasury) seemingly do not report suitability or fitness cases in any centralized database.
Ultimately, other federal agencies may discover the suitability or fitness case if it resulted in a termination of employment. But for those who were not debarred from federal service, a suitability or fitness case that resulted merely in a non-hiring may not be discovered. This is a glaring hole in the federal government’s personnel security system caused by a race to the bottom in personnel security due process. It does, however, wind-up benefiting some applicants.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.