Full Spectrum Litigator

The purpose of this page is to inform rejected applicants of the process and substance of appealing a negative suitability determination made by the Special Agent Applicant Unit or Special Agent Clearance Unit. The scope of information does not include appealing a security clearance denial or inconclusive polygraph result, as I have no information on those processes.

It's been said that getting into the FBI is more difficult than getting into Harvard. Based on all of the information I've collected in the last two years since I applied, I agree with that statement. The difference between the two processes, however, is that getting into the FBI is not entirely based on merit and your resume; it's based on merit plus factors completely outside your control. Selection at the background investigation stage is a "morality play" in which judgmental decisions of an embarrassing personal nature are made by people who couldn't care less about you, and whose names you may never know. Although most of the Special Agent Selection System is objectively testable and is based on the Merit System, those time-tested principles end when the background investigation begins and you start competing with other applicants in a dimension of perceived moral character. In other words, how you appear on paper before anyone actually starts interviewing people who know you. The investigation officially begins when your SF-86 is submitted and your Personnel Security Interview is conducted.

If you are reading this page, chances are that you passed every stage of selection and the investigation until either (1) your file went to the Initial Clearance Section, or (2) your background investigation was completed. In either case, you received a "thin letter" stating that you were not "selected." The letter may or may not have given a reason.

The polygraph examination is part of the investigation. Its purpose is multi-fold. First, it is an assessment of your honesty, because you have to answer every question truthfully. In addition to automated scoring software, a polygraph specialist Supervisory Special Agent at headquarters will carefully study your charts. If any deception is indicated, you fail. If no deception is indicated, you pass. Where people get confused is when they are discontinued after the polygraph even though they passed. I explain this below in the Initial Clearance Section portion of this guide.

Second, the polygraph examination helps determine your suitability by ensuring that you have disclosed all drug-related and crime-related information. Third, the examination ensures that you have provided truthful information elsewhere in your application process. Fourth, the examination establishes your loyalty to the United States.

The FBI chain of command at headquarters appears to be:

The Director -- supervises the entire FBI
Assistant Directors -- supervise Division Chiefs
Division Chiefs -- supervise Section Chiefs
Section Chiefs -- in charge of their Sections
Unit Chiefs -- in charge of their Units
Program Managers -- report to Unit Chiefs
Supervisors -- report to Program Managers
Special Agents and Analysts doing the work

ICS is a Section in the Security Division. ICS contains the Special Agent Applicant Unit (SAAU) as well as the Special Agent Clearance Unit (SACU). It appears that agents and analysts can be assigned to both Units. The Section Chief of ICS is, as of 2010, Supervisory Special Agent Mark A. Gant. SSA Gant is the immediate supervisor of the Unit Chiefs of SAAU and SACU. The Unit Chief or Acting Unit Chief of SACU most likely approved your suitability determination and signed your rejection letter. As of July 2009, the Unit Chief of SACU was Maria Groh and the Acting Unit Chief was Montchell C. Brice. My Program Manager was Kevin Benson, my Supervisory Personnel Security Specialist was Valrie R. Kosh, and my Personnel Security Specialist was Abby M. Halle. Also working at SACU in July 2009 were Special Agents Grahm L. Coder and Christopher Penn, although they were new agents on temporary duty there.

SAAU is the Unit that reviews your file and polygraph report to determine whether your drug use, criminal conduct, and other aspects of you as a person are within acceptable parameters for FBI employees. For example, if you drank tea in Amsterdam that may or may not have been laced with marijuana (true story of another applicant!), SAAU decides whether to reject you. This is indicated with a "CONTINUE" or "DISCONTINUE" notation on your polygraph report. Drug use is reportedly the number one reason a person is rejected after the polygraph.

If your conduct disclosed at the polygraph and elsewhere is acceptable, SAAU sends your file to SACU for the substantive portion of the background investigation. SACU conducts a security check of interagency databases and does a preliminary review of your application. Your application is reviewed along with those of other applicants. If they decide that they don't like you and instead wish to select an applicant who appears more palatable on paper, SACU places your application in a reject pile and attempts to develop any possible basis to disqualify you. They don't summarily reject you, because the FBI maintains a review board to consider applicant appeals and can reverse the decisions of the ICS Unit Chiefs. If you pass this preliminary review, you are asked to input your SF-86 into the Office of Personnel Management E-QIP system for initiation of the substantive background investigation: interviews with references, employers, roommates, neighbors, and the like. The personnel conducting your investigation may be Special Agents, OPM investigators, and/or contractors working for the FBI.

Adjudication of your suitability may occur at any time in the entire application process, but this page focuses on adjudications made (1) after the polygraph but before the substantive background investigation, and (2) after the substantive background investigation.

Your rejection letter will most likely not say anything about the basis for the decision. Try not to guess or speculate about the cause for your rejection, which could be completely different from what you think. For example, in my case I thought it was software downloading I did when I was a minor. It never occurred to me that a Special Agent would falsify information about a drug-related incident, for no reason, and that the Office of General Counsel would give a legal opinion based on the false information "recommending" my disqualification.

Upon receiving the rejection letter, the first thing you should do is immediately file a Freedom of Information Act/Privacy Act request for your entire applicant file, polygraph report, adjudicative recommendation, and all FD-302's developed in your investigation. The adjudicative recommendation is the suitability determination.

You are also faced with a choice. Do you want to file an appeal with the Merit Systems Protection Board? The MSPB does not have jurisdiction over FBI applicant suitability determinations. However, due to a procedural loophole in MSPB regulations, it is possible to get your nearly complete applicant file before the MSPB appeal is dismissed. This is because the administrative judges of the MSPB have the authority to order any federal agency to release information, and it is a sanctionable offense not to disclose the information. I recommend filing a MSPB appeal, because the FOIPA file that you get may be missing the suitability determination and have every FBI employee's name redacted. That makes it virtually impossible to reconstruct what happened, as I found out.

If you file a MSPB appeal, you'll get your file within about thirty days. With a FOIPA request, it can take a couple of months. If the FOIPA file does not contain the suitability determination, you will either have to file a MSPB appeal or file a Privacy Act lawsuit to obtain it. Whatever you do, you have to have the suitability determination in order to write an effective appeal! It is possible to appeal without the suitability determination, but I strongly recommend not doing that-- you only get one chance to appeal.

Appeals are considered by a review board consisting of probably two Special Agents and one Supervisory Special Agent. Your appeal will be read by the Analyst responsible for rejecting you. The analyst will then summarize your claims to the review board, which probably does not have time to read your entire appeal. Accordingly, your appeal must be as clear and concise as possible so the review board can discuss it and make a decision. If it is concise enough, it may even be attached to the analyst's presentation paper. I suggest the following format, which is based on an imagined fact pattern:

Introduction
A brief statement of the purpose of the appeal: "I am an applicant who was adjudicated unsuitable based on a negative performance review by my law firm. I appeal the decision to the Adjudication Review Board."
Problem
A brief statement of the grounds for the appeal: "Artificially negative performance reviews are common in law practice. At my firm they are used to provide a pretext for denying bonuses. My work performance at my immediately prior job was rated 'outstanding.' The decision should be reversed because my most recent employment review does not reflect my actual job performance."
Facts
A longer statement of facts: "My prior supervisor, Richard Roe, had the following to say about my work performance in 2008: 'Mr. Doe is an ideal employee who....' My consistent record of outstanding performance is not unique to my previous job. Please find attached my performance review from my job as a campus security officer in college, where I was rated 'outstanding' and became a supervisor at age twenty."
Key Law/Policies
Quotes from the Manual of Investigative Operations and Guidelines that support your position: "Section 1234: 'Ascertain facts upon which derogatory conclusions are based.'"
Argument
Persuade the review board why the decision is based on wrong information: "The rule is that facts are more important than conclusions. My current supervisor should have been asked on what basis he wrote that I failed to...and why I was deemed to be inattentive to detail on.... He should have been asked whether this type of review is typical of his firm or unusual among attorneys there. My supervisor at my college job should have been given more weight because it was a law enforcement position rather than a strictly civilian job."
Relief Requested
A statement of what you want the board to do: "My appeal should be granted and the board should direct SACU to reinterview my current supervisor to ascertain the actual facts on which he based my negative review. My coworkers should be interviewed to confirm that they all receive negative reviews, not just me. My supervisor from my college job should be interviewed about the same subjects to confirm the fact that my performance has always been outstanding."

This format is used in law practice and effectively communicates all information required for a judge to make a decision. For most applicant appeals, no exhibits will be necessary and a letter format will be sufficient. In my case, as shown in my appeal, documentary evidence and exhibits were necessary and they significantly lengthened the appeal. Regardless of its length, I strongly recommend making your appeal a declaration under penalty of perjury so that there is no question as to the veracity of supporting facts.

If you require assistance (strongly recommended), please email me. It always helps to have another person review your appeal. I had three other people review my appeal multiple times, and they suggested excellent changes that were incorporated into my final draft.

The Manual of Investigative Operations and Guidelines provides policies you should use to support your appeal. For example, the drug policy is set forth in Section 67 along with all other aspects of applicant selection. I am in the process of obtaining other policies of the FBI under FOIPA that may provide guidance for preparing appeals. Meanwhile, MIOG is the main resource. Unfortunately I do not have space here to recount all of the sections that might be relevant; please review the manual for context.

Address your appeal to the person who signed your rejection letter, or to the ICS Section Chief. You may also appeal to the Director (see below), but that doesn't involve a review board and is not recommended as a first step.

The Analyst in your case prepares a one-page presentation for the review board to read. As shown on the form, the Program Manager is also present. The Analyst tries to justify the decision to the board, and the board makes a decision. It is unclear how the applicant's argument is presented to the board. It is very likely that the Analyst simply summarizes the applicant's contentions or attaches the letter of appeal to the presentation paper. In my case I do not know what would be done because my appeal is lengthy and involves a significant amount of documentary evidence.

If the appeal is granted, it appears that the Applicant Coordinator contacts the applicant with the good news. If the appeal is denied, the applicant receives a letter from ICS Section Chief Mark Gant or one of his subordinates stating that the appeal is denied. Bernie B. received a denial letter within a week stating that he did not provide any evidence to justify a change in the FBI's decision.

Before you even read this section, get one thing straight: do not abuse the privilege of writing to the Director of the FBI. Do not send bizarre, rambling, or unprofessional correspondence to the Director. Recognize that, as a civilian, you have no chain of command and therefore can write to anyone in the FBI, including the Director, without any sort of approval process or review. Just because you can does not mean that you should. It's a couple of steps removed from writing the President, but it's in the same ballpark.

I first sent my appeal to the Acting Unit Chief of SACU, who signed my rejection letter. That did not get my appeal heard. I finally appealed to the Director on May 1, 2011. Follow my example and try to have your appeal heard through normal channels before appealing to the Director. Indeed, depending on the nature of the appeal, it could be more advantageous for a board of three agents to hear it than the Director. For example, anything involving drugs; does the Director really want to be in the position of reversing a decision based on excessive drug usage or something similar? I doubt it. Keep that in mind.

A final note: do not email the Director of the FBI for any reason. Email addresses of FBI employees are easy to figure out, but again it doesn't mean that such channels should be used. A letter would be far more appropriate.

With that said, the good news is that the Director does read his own mail. I know this because (1) this is widely reported on message boards and (2) a relative of mine wrote a letter of recommendation for me a few years ago for a summer internship, and the Director took the time to respond to him with a nice personal note that I have (according to my relative, they knew each other professionally). So, if you send a letter to the Director, it will be read-- make sure every word counts. I still suggest exhausting all other possible options before taking this step.

John Doe #1 -- Email me for a copy of my appeal.
My appeal was Constructively denied by SSA Mark Gant without a hearing. My second appeal, addressed to the Director, awaits a response.
Bernie B. -- Email me for a copy of Bernie's appeal letter and denial letter.
I would have written it differently, but it still raises important issues, like accuracy of factual information relied upon. Clearly, Bernie's employment history was not accurately stated in the suitability determination. Regardless of the other bases for his disqualification, they could at least give him that.
John Doe #2 -- sample that I would have written in his position. He is not appealing.
John Doe #3 -- drug use as a minor...granted! But he was later rejected on the same basis. He is appealing again and will advise of the result.
Jane Doe #1 -- tea in Amsterdam...granted! Jane Doe #1 is reportedly a Special Agent in the FBI.

The FBI appeal is a difficult process that is made more difficult by the bureaucratic mentality. The FBI circles around the decision that was made and attempts to find any possible basis to justify the decision. In my case, they prevented me from appealing by forcing me to file an action for administrative mandamus in order to have the appeal heard. I have not filed the action and don't know if I will. In Bernie's case, they stated that no "new information" was provided to change the decision. Bernie did provide new information; the employment section of the adjudicative recommendation was inaccurate, for one. Although I would have written the appeal differently, it still presented legitimate issues.

The bottom line is that you need to write a solid appeal, supported with evidence, that clearly lays out the issues in your disqualification and that can actually be granted. I strongly recommend reviewing the MIOG for pertinent authorities to use in support of your appeal, and consulting with me or another experienced FBI reject. Your chances of changing the decision are vastly improved if the appeal is concise, appropriate, and clear.