If you’re reading this article and have ever experienced the misfortune of a security clearance denial or revocation, chances are good that you’ve subsequently also experienced the panic-inducing prospect of reapplication following the one year “cooling off period” mandated by government policy.

For many applicants, the process of re-application is worse than the prior denial or revocation itself. That’s because the re-application process is often the first opportunity for a fresh start following the stressors of the earlier proceedings. If the earlier proceedings resulted in a job termination, the applicant may have been struggling to get-by for a year or more with temp work in an unrelated job field or even unemployment compensation. The glimmer of hope that comes with a new cleared job offer is quickly dampened by the reality that the prior denial, suspension, or revocation acts as an indefinite scarlet letter courtesy of SF-86 question 25.2:

“Have you EVER had a security clearance eligibility/access authorization denied, suspended, or revoked?”

Fortunately, some of the people who call my office with “security clearance denials” are surprised to find that the prior proceedings were actually NOT a security clearance denial or revocation, but rather a close cousin called a “suitability” or “contractor fitness” case, which we also handle. The consequences at the time – a job termination or non-hiring – may have seemed equally devastating, but the important difference is that such cases do not always follow the applicant like a security clearance denial. (There are some exceptions; for example, if the applicant is reapplying to the same agency).Here are the differences and how to determine whether your case was actually a security clearance denial or revocation, or something else entirely:

SUITABILITY

All federal employees are evaluated for employment “suitability” based on a set of criteria set forth at 5 C.F.R. § 731.202 (or in the case of State Department Foreign Service employees/applicants, criteria set forth in the Foreign Affairs Manual). The criteria are much more limited than the National Adjudicative Guidelines for security clearances; for example, there is no disqualifying condition for financial considerations (e.g. delinquent debt) although some agencies – most notably ICE and CBP – have read into the “criminal or dishonest conduct” disqualifying condition a financial component. Apparently, at those agencies, if one has delinquent debt she or he is automatically “dishonest.”

At most agencies, applicants denied a job based on suitability criteria are not afforded appeal rights; the action is treated simply as a non-hiring. Other agencies, most notably the Department of Homeland Security, have a policy of granting civil service applicants appeal rights in unfavorable suitability determinations. Yet even those agencies that do afford appeal rights as a matter of policy only afford applicants a single shot written appeal: no hearing, and no right to appeal to any other authority (e.g. the Merit Systems Protection Board). Employees currently in a civil service job who are being removed based on suitability grounds are entitled to additional appeal rights, including those set forth by union bargaining agreement.

CONTRACTOR “FITNESS”

Government contractors are also evaluated for suitability, however the determination is frequently referred to as a “fitness” determination. Most agencies afford contractor applicants – and even current contractors – far less administrative due process in these cases than even the limited due process they afford their employees, if they afford contractors due process at all. Those agencies that do grant appeal rights as a matter of policy offer only a one-shot written appeal for both contractor applicants and current contractors.  Theoretically, contractor fitness cases are evaluated using the same criteria set forth at 5 C.F.R. § 731.202. In reality, however, federal agencies have wide latitude to determine who they want working on their contracts. As long as the decision to bar an applicant from working on an agency contract (or contracts) isn’t so broad as to prevent the applicant from practicing his or her profession, there is generally no recourse.

Individuals who are still unsure whether a prior administrative proceeding constituted a security clearance denial/revocation or a suitability/contractor fitness action based on procedure should review the paperwork they received during the process. If the words “suitability” or “fitness” are used, that’s a pretty good clue that the prior proceeding was not a security clearance case. Nonetheless, these cases often still look like security clearance cases and many federal employees and government contractors remain confused about what, if anything, they need to list on future SF-86’s and job applications. When in doubt, seek out the guidance of a qualified attorney practicing security clearance or federal employment law.

 

This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation. 

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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