Applying for a federal job is an exhausting and tedious endeavor. While navigating bureaucratic hurdles, it’s easy to miss a detail in the fine print: all federal job applicants are screened for “suitabililty” before a final offer is extended.

The reality is that an applicant might make it through the forms, the interviews, the drug screening, and the identity verification, only to see a conditional job offer rescinded based on a vague set of criteria found in the Code of Federal Regulations. What could be more disheartening for a job-seeker than that? And what better reason to understand the standards you’re being judged against before you apply?

Criteria for Federal jobs

The actual criteria applicants are assessed against for any federal job can be found at 5 C.F.R. § 731.202. What tends to throw people for a loop is that these standards apply even if the job does not require a security clearance. Suitability screening is a separate, parallel process to any security clearance investigation. As you may have guessed by reviewing the C.F.R. standards, its also a highly subjective one, with little to no outside scrutiny by the courts or Merit Systems Protection Board, at least for applicants.

Theoretically, an applicant could clear suitability but not security, or vice versa. In practice, however, most agencies try to weed out applicants who wouldn’t otherwise clear security during the suitability process; its faster and requires them to afford less administrative due process. Its also worth noting that the C.F.R. criteria referenced above do not include any additional, agency-specific suitability criteria that applicants may find at agencies like the FBI or DEA.

Some agencies afford applicants limited rights to appeal an unfavorable suitability screening, while others do not. For those that do provide appeal rights (or at least explain the reason for the denial), the two most common reasons I see for an unfavorable decision are a history of alcohol or drug abuse.

Drugs and Alcohol

A February 2021 memorandum to federal department and agency heads from the Acting Director of the U.S. Office of Personnel Management instructs suitability adjudicators to place less emphasis on recency when assessing an applicant’s past marijuana use. Nonetheless, the C.F.R. standards still require some showing of “substantial rehabilitation” in all cases of past alcohol or controlled substance abuse for an applicant to be successful.

The question for many applicants with a history of alcohol or drug abuse is thus what is sufficient for such a showing. These are fact-specific inquiries that are supposed to be done on a case-by-case basis. However, there are some factors that I’ve seen success with in a number of prior cases: completion of a rehabilitation program; enrollment and active participation in an accountability program like Alcoholics or Narcotics Anonymous; counseling; affidavits from friends and family who can attest to the applicant’s sobriety; negative drug or alcohol tests over a sustained period of time; a statement of intent and agreement to random testing; or ideally some combination of the above.

mitigating substance abuse issues

If those sound like the same things I’ve previously recommended for security clearance applicants with similar background issues, its because they are. With some minor differences, mitigating substance abuse issues in a suitability case is accomplished the same way one would when appealing the denial or revocation of a security clearance. “Substantial rehabilitation” is just a fancy way of saying “show us what’s changed” or “why should we be confident these problems are in the past?” Applicants should think about what they would want to see if they were objectively reviewing their own file as an adjudicator who doesn’t know them personally.

Much like in a security clearance case, proactive mitigation – for example, effective use of the comments section on federal forms like the OF-306 or SF-85(P) – can also go a long way in preventing problems before they occur. This becomes even more important at agencies that do not afford applicants appeal rights in suitability cases. At those agencies, applicants will need to make their case for “substantial rehabilitation” pre-emptively, or not at all.

 

 

This article is intended as general information only and should not be construed as legal advice. Although the information is believed to be accurate as of the publication date, no guarantee or warranty is offered or implied. Laws and government policies are subject to change, and the information provided herein may not provide a complete or current analysis of the topic or other pertinent considerations. Consult an attorney regarding your specific situation. 

 

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Attorney Sean M. Bigley represents clients worldwide in security clearance denials, revocations, and the security clearance application process. He is a former investigator for the Defense Counterintelligence and Security Agency (then-U.S. Office of Personnel Management). For more information, please visit www.bigleylaw.com. Readers will also find a low-cost, self-help option for obtaining copies of their security clearance background investigations and DISS/Scattered Castles records at www.bigleylaw.com/security-clearance-investigation-records.