Your lawyer is using incorrect terminology. “Suitability” is a government term used primarily for federal employment eligibility for competitive service appointments. “Fitness” is the term used for contractors and excepted service appointments (see 5CFR203 for excepted service). There are no government-wide rules for contractor fitness determinations. OPM recommends (but does not require) that agencies use the criteria at 5CFR731.202 for contractors and excepted service. Every agency can create their own fitness criteria for contractors. Some do not allow any rebuttal or appeal of adverse fitness determinations; some only provide limited rebuttal/appeal. Agencies that use the criteria at 5CFR731.202 for contractors do not provide the same “due process” afforded to suitability determinations for competitive service appointments. Hence, no further appeal or hearing at the MSPB.
and yet they INSIST that contractors are not treated like 4th class citizens. Rrrrrrriiiiiigght
On the bright side, 5CFR731 is being changed to include contractors and excepted service personnel. The change has been in the approval process for about a year. It went through the 60-day and 30-day public comment period several months ago. The MSPB was established specifically for “competitive service” matters, so they’ll probably either have to expand the jurisdiction of the MSPB or create another appeal board for contractors and excepted service.
This is what Denial letter says the agency
After carefully review of the information above, and the additional considerations listed in the Supplemental Credentialing Standards in the Office of Personnel Management’s (OPM) July 31, 2008, memorandum entitled, “Final Credentialing Standards for Issuing Personal Identity Verification Cards under HSPD-12,” we have taken the following actions:
Canceled any eligibility you may have with “Agency Name” for any contract position.
If you do not agree with our decision and action, you may send a written letter for reconsideration no later than 30 days from the date of this letter, securely to xyx@gmail.com. In the subject line, please identify with “Request for Reconsideration.” Please ensure to include any documentation that would mitigate the fitness/suitability concerns stated in this letter.
There are some factual errors in the Investigators report which I can mitigate.
My attorney said he can file appeal on my behalf but according to him I don’t need an attorney. He wants me to obtain some “letter of support” from my coworkers stating I am a reliable trustworthy etc etc person. He can help me write the appeal with 2 more appoints each costing $500 or I can retain him for $5500 any ideas how letter of support helps in these type of cases.
But isn’t the Merit System Protection Board (MSPB) somewhat paralyzed due to massive backlog and lack of appointees? Still it is at least some protection.
It would have been helpful if you told us from the beginning that this was an HSPD-12 PIV denial. You initially said, “$5000 flat fee for filing my appeal for Public Trust Sf85P T4 high [risk] security denial.” You later said, “$5000 is a flat fee includes filing an appeal and court hearing if needed.” The letter clearly says that you are being denied eligibility for a Personal Identity Verification (PIV) card under Homeland Security Presidential Directive 12 (HSPD-12) credentialling standards. This is not an employment suitability denial under 5CFR731. Nor is it an adverse contractor employment fitness determination. There is no hearing for PIV denials; there is only a written request for reconsideration (appeal). The reconsideration process is final and there is no further right of review. Have you or your lawyer read OPM’s, ““Final Credentialing Standards for Issuing Personal Identity Verification Cards under HSPD-12?” The Supplemental Credentialing Standards are similar to 5CFR731.202, but 5CFR731.202 does not apply to your situation.
100% agree. You can have a clearance and eligibility but be denied a CAC/PIV. Depending on the agency, if you can’t get a PIV, you won’t be able to access the agencies systems (in some cases, their facilities) so can’t perform your duties. It sounds like you might be misunderstanding some of this. You might want to ask the lawyer for a more thorough explanation.
@willam-henderson thanks for your input. Sorry I didn’t include The second part of the denial letter which says
“Under the provisions provided above, you are determined not fit (unfavorable fitness/suitability determination) for the contract position due to the following factors:
2) Criminal or dishonest conduct;
3) Material intentional false”
ON form OF306, Declaration for Federal Employment, I answered “NO” to question #12 concerning employment termination (s) whereas I should have answered “YES”. I was fired from a job due to performance reasons
What should I do should hire a lawyer for $5500 or file appeal on my own what are my chances
How important is this particular job to you? If it is a must have, hire the best lawyer you can. If you can go without it, find something else that doesn’t need a PT or a clearance and try again in a year or 2. Just be honest on the next form.
I am 56 and this job is dream job salary/benefit wise. Have two Secret clearance’s before this. Probably this is my last clearance extension attempt before retirement. My lawyer wants me to get few letter of support stating my reliability, trustworthiness etc etc from my previous coworkers and Supervisors to be filed with appeal I don’t know how much that will help.
Then I would get a top lawyer. Up to you but sounds like this is something you don’t want to half-ass. I don’t know any lawyers but some on here have recommended Berry & Berry.
Actually Barry and Barry’s lawyer Mr Todd Hull is the one who quoted me $5500 he has a good reputation and he told me upfront he will try his best but that there is a chance I may lose the appeal so no guarantees. He even suggested I can file appeal on my own and he can help me but I don’t want to take a chance by filing on my own.
Very confusing situation. The “firing” and “laid off” terminology is definitely very subjective. “Performance issues” can be used by employers for valid performance issues but can also be used to get rid of people that don’t fit the image they want. (too fat, too foreign, too ugly, too slow, etc.) If an employee can’t sell enough cars to meet their sales quota, they may be let go for performance but told they are being laid off because sales are down. It can be very hard for an individual to know what the real reason they are being terminated and therefore very difficult to answer this question. I have seen some naive and inexperienced HR departments really be much too vindictive and self righteous in their reporting of “reason for termination” You may be a victim of this. Good luck whatever you decide.
I’ve never heard of any such cases, even when I was in a union. What I have encountered is people being put on a performance improvement program (PIP, may also go by other names) because they are too senior and too highly paid.
I’ve also heard of people leaving a job for a layoff who later found out that the previous employer made various allegations against them when the investigator did an interview. Fortunately this does not happen often, but it does happen.
Not sure where you’re getting that from. Most reputable companies simply do not do that. They know their cost-benefit would be off the scale and not worth it. There’s a reason they have Performance improvement Programs and such. Legit companies build their cases over time before they fire someone due to the vast potential legal issues attached to even the most justified and legal firings.
Can those shady firings happen? Sure. But VERY rarely and usually by unscrupulous employers whom you would not want to work for anyway.
This sounds like maybe it’s coming your personal experience so apologies if it happened to you. My response is not personal just based on my observations of typical employment situations.
“Reputable companies” don’t. You don’t see this at Northrop, Lockheed, SAIC, BAE, etc. But, when your investigations are primarily new hires and mid career hires with a large variety of previous employers… it takes you to a multitude of small and medium companies and their HR departments and managers on the spectrum of competence, character, ethics, and integrity. Defense/Government industry employers have to play by the rules but so many other skirt them or flaunt them.
On the flip side, I’ve seen large, nationally known companies, that use the “performance improvement plan” to eliminate departments/senior employees during my investigations. Unfortunately, unless you are going through a tier 4 or 5 investigation, terminations are rarely investigated other than Subject interviews.
This is too late, but always get terminations in writing for some protection. I’ve submitted termination letters/emails for Subjects where the former employer told us different information on the returned inquiries.
No argument there. Again, I’m not saying it doesn’t happen. Just saying that most companies will usually opt for a layoff or a severance package than a shady firing. In the end, it can easily cost far more to either build a case to fire someone (PIP alone can take months then you still need to gather whatever evidence to show cause). Then potential lawsuits. The severance is almost always cheaper.