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How to appeal an adverse suitability action

If you’re applying for a federal job, you’ll probably have to go through a suitability investigation.  

What is a suitability action?

Based on the investigation, the Office of Personnel Management (OPM) or another agency can take one of the following suitability actions against you:

  • Cancellation of eligibility for federal employment
  • Removal from federal employment
  • Cancellation of reinstatement eligibility for federal employment
  • Debarment from federal employment

However, you have the right to appeal a suitability determination.

Which positions require suitability investigations?

The federal government conducts suitability investigations for most federal positions:

  • Competitive service positions
  • Career appointments to the Senior Executive Service (SES)
  • Excepted service positions that can be non-competitively converted to competitive service

What is a suitability action?

Either OPM or another federal agency can take the following suitability actions:

  • Cancellation of eligibility
  • Removal
  • Cancellation of reinstatement eligibility
  • Debarment

How does the federal government make suitability determinations?

The government makes suitability determinations based on the following factors:

  • Misconduct or negligence in employment
  • Criminal or dishonest conduct
  • Material, intentional false statement, or deception or fraud in examination or appointment
  • Refusal to furnish testimony as required by § 5.4 of this chapter
  • 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 use of narcotics, drugs, or other controlled substances without evidence of substantial rehabilitation
  • Knowing and willful engagement in acts or activities designed to overthrow the U.S. Government by force
  • Any statutory or regulatory bar which prevents the lawful employment of the person involved in the position in question

What happens when the federal government takes a suitability action?

Before the government can take a suitability action, either OPM or the employing agency must give you at least 30 days’ advanced written notice of the proposed action.  The agency will send you a Notice of Proposed Action, which must inform you of:

  • The proposed action
  • The charges against you
  • Your opportunity to review the materials relied upon
  • Your right to answer in writing
  • The deadline to answer
  • Where to submit the answer
  • Your right to designate a representative

If OPM is proposing the suitability action, OPM will send a copy of the notice to the employer agency.

Responding to a Notice of Proposed Suitability Action

As soon as you get a Notice of Proposed Suitability Action, ask for the documents relied upon.  The documents relied upon is the agency’s evidence against you.  You should also decide whether you want to hire an attorney to help you respond.  If necessary, you can ask the agency for an extension of time to submit your answer.

In your answer, you can respond to the charges against you.  Depending on the reasons for the proposed action, it may be helpful to submit character references or other supporting evidence with your response.  You can also explain if there are any mitigating factors:

  • Nature of the position
  • Nature and seriousness of the conduct
  • Circumstances surrounding the conduct
  • Recency of the conduct
  • Your age at the time of the conduct
  • Contributing societal conditions
  • Absence or presence of rehabilitation or efforts toward rehabilitation

After reviewing your response, OPM or the agency will issue a dated written decision that states the reasons for its action and advises you of your right to appeal.

Appealing a suitability determination to the MSPB

If the agency makes a negative suitability determination, you can file an appeal with the Merit Systems Protection Board (MSPB).  The MSPB will affirm the suitability determination if it agrees with one or more of the charges against you.  However, if the MSPB doesn’t sustain all of the charges, it will remand your case to the agency to determine whether the action is still appropriate.  The agency’s decision is final, and there are no additional appeal rights.

How can an attorney help me appeal a suitability determination?

A negative suitability determination can have devastating effects on your career.  An experienced employment attorney can discuss your rights, draft a response to a letter of proposed suitability action, or represent you in an appeal of a negative determination.

If you received a proposed suitability determination, Alan Lescht and Associates, P.C., can help.  We represent federal government employees and contractors in matters involving federal suitability.

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