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Security clearance and suitability determinations

If you work for a federal agency or a government contractor, you’re probably familiar with the terms “security clearance” and “suitability.”  But did you know that the government can review a clearance or suitability at any time?  Make sure you know your rights regarding security clearances and suitability determinations.

What is a security clearance determination?

A security clearance determination is a federal agency’s decision about whether you can get or keep your security clearance.  The government can review a security clearance during the application process or at any time after it grants a clearance.  Reviews may occur on a regular basis or because of an incident that impacts your clearance.

What factors impact your security clearance?

To be eligible to access classified information, the agency will consider a number of factors including:

  • Allegiance to the United States
  • Foreign influence
  • Foreign preference
  • Sexual behavior
  • Personal conduct
  • Financial considerations, including falling behind on bills or loans
  • Alcohol consumption
  • Drug involvement
  • Emotional, mental, and personality disorders
  • Criminal conduct
  • Security violations
  • Outside activities
  • Misuse of Information Technology systems

What happens when your clearance is denied, suspended, or revoked?

The agency will issue a written Letter of Intent regarding its decision to deny, suspend, or revoke your clearance.  The Letter of Intent will state the reasons for its decision and advise you about your right to respond.  The Letter should give you a deadline to respond in writing, tell you who to send the response to, and give you the chance to request the documents supporting the agency’s decision.   The agency should also provide a Statement of Reasons that explains additional details about the allegations against you.

If you are already a federal employee, your agency may:

  • Reassign you to duties that don’t require a clearance
  • Place you on administrative leave
  • Propose to remove you from employment

How to respond to a Letter of Intent regarding your security clearance

Once you receive the Letter of Intent, contact the agency to ask for the supporting documents.  You can also ask for an extension to submit your response.  You can submit your own response, or you can hire an attorney to help you.

The response should address the allegations in the Statement of Reasons.  You should also explain any mitigating circumstances.  Depending on the agency’s reasons, it may be helpful to submit your own evidence and documents as attachments to your response.

In reviewing your response, the agency will consider various factors, including whether you voluntarily reported the alleged incidents or harmful information, were truthful in responding to questions about what happened, and have demonstrated positive changes in your behavior and employment.

How to appeal a security clearance determination

If the government decides to deny or revoke your clearance, you may have the right to request a hearing to appeal the determination.  For example, Department of Defense (DOD) employees may appeal the decision by requesting a hearing before an Administrative Judge with the Defense Office of Hearings and Appeals (DOHA).  You may hire an attorney to represent you.  You may testify on your own behalf at the hearing, and you may call witnesses.  The agency attorney may also question witnesses and present evidence.  The Administrative Judge will make a recommendation based on the evidence presented at the hearing.

Other agencies have their own similar hearing and appeal procedures.

What is a suitability determination?

A suitability determination is the government’s decision about whether you are suitable for federal employment.  This is different from a security clearance determination.  For example, you could be “suitable” for a federal job that doesn’t require a clearance.  However, like a clearance determination, the government can review your suitability when you apply for a job or at any time during your federal employment.

What factors impact suitability?

The government may find someone unsuitable for any of the following reasons:

  • Misconduct or negligence in employment
  • Criminal or dishonest conduct
  • Material, intentional false statement, or deception or fraud in examination of the appointee
  • Alcohol abuse, without evidence of substantial rehabilitation
  • Illegal use of narcotics
  • Knowing or willful engagement in acts or activities designed to overthrow the U.S. government

In making a suitability determination, the government may consider these factors:

  • The nature of the position for which the person is applying for
  • The nature and seriousness of the conduct
  • The circumstances surrounding the conduct
  • The recency of the conduct
  • The age of the person involved at the time of the conduct
  • Contributing societal conditions
  • The absence or presence of rehabilitation or efforts towards rehabilitation

What happens when you get a negative suitability determination?

The federal agency will send you a letter stating that it proposes to find you unsuitable.  The letter should provide a deadline to respond to the proposal, tell you how to submit your response, and allow you to request the agency’s evidence against you.

How can an attorney help me with a security clearance or suitability determination?

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

If you received a Letter of Intent to deny, suspend, or revoke your clearance or a proposed negative suitability determination, Alan Lescht and Associates, P.C., can help.  We represent federal government employees and contractors in matters involving federal suitability and security clearances.

This post was originally published on February 25, 2017, and was updated on November 16, 2020.

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Employee Rights Federal Discipline Federal Employees Law OIG Investigation Security Clearance

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