PSH-13-0036

* The original of this document contains information which is subject to withholding
from disclosure under 5 U.S.C. 552. Such material has been deleted from this copy and
replaced with XXXXXX’s.
United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
)
Filing Date: March 21, 2013 )
) Case No.: PSH-13-0036
__________________________________________)
Issued : June 27, 2013
______________________
Hearing Officer Decision
______________________
Wade M. Boswell, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXXXXXX (hereinafter
referred to as “the individual”) to hold an access authorization1 under the Department of
Energy’s (DOE) regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled, “General
Criteria and Procedures for Determining Eligibility for Access to Classified Matter or
Special Nuclear Material.” As fully discussed below, after carefully considering the
record before me in light of the relevant regulations and Adjudicative Guidelines, I have
determined that the individual’s access authorization should be restored.
I. Background
The individual is employed by a DOE contractor in a position that requires that he hold a
DOE security clearance and participate in the Human Reliability Program (HRP).2
During a conversation with his sister-in-law in November 2012 about her weight loss, she
mentioned that she was taking an appetite suppressant that she had been prescribed by her
doctor, and offered to let him try a few. The individual took one of the “diet pills” the
1 Access authorization is defined as “an administrative determination that an individual is eligible for
access to classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R.
§ 710.5(a). Such authorization will be referred to variously in this Decision as access authorization or
security clearance.
2 The HRP is a security and safety reliability program designed to ensure that individuals who occupy
positions affording access to certain materials, nuclear explosive devices, facilities, and programs meet the
highest standards of reliability and physical and mental suitability. Participants in the HRP are subject to
random breath alcohol tests and drug screenings. See C.F.R. § 712.
2
next evening, several hours before going to work. At the end of his shift, he was selected
for a random drug screening and tested positive for amphetamines.
As a result, the individual’s HRP certification was suspended and the positive drug screen
was reported to the Local Security Office (LSO). See Exhibits 4 and 5. The LSO
conducted a personnel security interview (PSI) with the individual on January 7, 2013, to
allow the individual to provide additional information and address concerns regarding his
eligibility for access authorization. See Exhibit 7.
Since the PSI did not resolve the security concerns about the individual’s positive drug
screen, the LSO informed the individual in a letter dated February 15, 2013 (Notification
Letter), that it possessed reliable information that created substantial doubt regarding his
eligibility to hold a security clearance. In an attachment to the Notification Letter, the
LSO explained that the derogatory information fell within the purview of 50 U.S.C.
§ 435c (hereinafter referred to as the Bond Amendment)3 and the potentially
disqualifying criterion set forth in the security regulations at 10 C.F.R. § 710.8,
subsection (k) (hereinafter referred to as Criterion K).4 See Exhibit 1.
Upon his receipt of the Notification Letter, the individual exercised his right under the
Part 710 regulations by requesting an administrative review hearing. The Director of the
Office of Hearings and Appeals (OHA) appointed me the Hearing Officer in the case and,
subsequently, I conducted an administrative hearing in the matter. At the hearing, the
LSO presented no witnesses; the individual presented the testimony of five witnesses,
including his manager, his sister-in-law, his wife and himself. The LSO submitted eight
numbered exhibits into the record; the individual tendered two exhibits. The exhibits will
be cited in this Decision as “Ex.” followed by the appropriate numeric or alphabetic
designation. The hearing transcript in the case will be cited as “Tr.” followed by the
relevant page number.5
3 The Bond Amendment states that a security clearance may not be granted or renewed for a “person who
is an unlawful user of a controlled substance or an addict . . .” 50 U.S.C. § 435c(b). Within the DOE,
cleared incumbents determined to have used a controlled substance within 12 months of the DOE becoming
aware of such usage are considered subject to the Bond Amendment and all such cases are immediately
processed for administrative review. See DOE Order 472.2, Appendix E at E-1.
4
Criterion K relates to information that a person has “[t]rafficked in, sold, transferred, possessed, used, or
experimented with a drug or other substance listed in the Schedule of Controlled Substances established
pursuant to section 202 of the Controlled Substances Act of 1970 (such as marijuana, cocaine,
amphetamines, barbiturates, narcotics, etc.) except as prescribed or administered by a physician licensed to
dispense drugs in the practice of medicine . . .” 10 C.F.R. §710.8(h).
5 OHA decisions are available on the OHA website at www.oha.doe.gov. A decision may be accessed by
entering the case number in the search engine at www.oha.gov/search.htm.
3
II. Regulatory Standard
A. Individual’s Burden
A DOE administrative review proceeding under Part 710 is not a criminal matter, where
the government has the burden of proving the defendant guilty beyond a reasonable
doubt. Rather, the standard in this proceeding places the burden on the individual because
it is designed to protect national security interests. This is not an easy burden for the
individual to sustain. The regulatory standard implies that there is a presumption against
granting or restoring a security clearance. See Department of Navy v. Egan, 484 U.S.
518, 531 (1988) (“clearly consistent with the national interest” standard for granting
security clearances indicates “that security determinations should err, if they must, on the
side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied,
499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance).
The individual must come forward with evidence to convince the DOE that restoring his
access authorization “will not endanger the common defense and security and will be
clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). The individual is
afforded a full opportunity to present evidence supporting his eligibility for an access
authorization. The Part 710 regulations are drafted so as to permit the introduction of a
very broad range of evidence at personnel security hearings. Even appropriate hearsay
evidence may be admitted. 10 C.F.R. § 710.26(h). Thus, an individual is afforded the
utmost latitude in the presentation of evidence to mitigate the security concerns at issue.
B. Basis for the Hearing Officer’s Decision
In personnel security cases arising under Part 710, it is my role as the Hearing Officer to
issue a Decision that reflects my comprehensive, common-sense judgment, made after
consideration of all the relevant evidence, favorable and unfavorable, as to whether the
granting or continuation of a person’s access authorization will not endanger the common
defense and security and is clearly consistent with the national interest. 10 C.F.R.
§ 710.7(a). I am instructed by the regulations to resolve any doubt as to a person’s access
authorization eligibility in favor of the national security. Id.
III. The Notification Letter and the Security Concerns at Issue
As previously noted, the LSO cites the Bond Amendment and Criterion K as the basis for
suspending the individual’s security clearance. Criterion K concerns information that a
person has “[t]rafficked in, sold, transferred, possessed, used, or experimented with a
drug or other substance listed in the Schedule of Controlled Substances established
pursuant to section 202 of the Controlled Substances Act of 1970 (such as marijuana,
cocaine, amphetamines, barbiturates, narcotics, etc.) except as prescribed or administered
by a physician licensed to dispense drugs in the practice of medicine . . .” 10 C.F.R.
§ 710.8(k). Use of an illegal drug or misuse of a prescription drug raises concerns about
an individual’s reliability and trustworthiness, as well as a person’s ability or willingness
to comply with laws, rules and regulations. See Guideline H of the Revised Adjudicative
4
Guidelines for Determining Eligibility for Access to Classified Information, issued on
December 29, 2005, by the Assistant to the President for National Security Affairs, The
White House (Adjudicative Guidelines). With respect to Criterion K, the LSO relied on
(1) the individual’s statements during the PSI that on November 8, 2012, he had
consumed one “diet pill” that was not prescribed for him and contained an amphetamine,
which is a controlled substance, and (2) the individual testing positive for amphetamines
during a random drug screening on November 9, 2012. The individual’s acknowledgment
of consuming the “diet pill” was also the basis for the security concerns cited by the LSO
under the Bond Amendment. See Ex. 1.
In light of the information available to the LSO, the LSO properly invoked the Bond
Amendment and Criterion K.
IV. Findings of Fact
The individual has worked for DOE contractors at the same DOE site for over 30 years in
positions in which he has been subject to random drug screenings. In the 28 years prior to
the individual’s positive drug screening in November 2012,6 the individual tested
negative on all of his drug screenings.7 Tr. at 58 – 59, 101. See Ex. B.
As reflected in the medical records that the individual submitted, he has struggled with
weight and obesity concerns for many years. Id. He also suffers from diabetes. Id., Tr. at
26, 91 – 92. His wife believes that he has gained 30 to 40 pounds over the last three to
five years. Id. at 27. The individual and other workers at the DOE contractor believe that
employees have been terminated by the DOE contractor due being in poor health, being
overweight or being in poor physical conditions. Id. at 18, 41, 75 – 77; Ex. 2.
In November 2012, while the individual was concerned about gaining weight over the
upcoming holidays, he had a conversation with his sister-in-law about her weight loss of
67 pounds over the prior year. Tr. 64, Ex. 7 at 10. His sister-in-law stated that she was
taking an appetite suppressant (one pill per day) that she had been prescribed by her
doctor and she offered to give the individual some of her pills to try to see if they might
work for him. She gave the individual three “diet pills” which contained phentermine. Tr.
at 62 – 66.
6 In October 1984, the individual tested positive for marijuana during a random drug screening while
working for a DOE contractor. During the investigation that followed the individual testing positive on the
November 2012 drug screening, the LSO found that any security concerns associated with the 1984
incident had been mitigated and the LSO did not include the 1984 incident as a supporting factor for the
security concerns set forth in the Notification Letter. Therefore, the 1984 incident was not considered in the
administrative review hearing or in reaching this Decision.
7 With respect to the results of the individual’s drug screenings subsequent to 1984, I have relied on the
individual’s testimony as well as the testimony of his manager that he had reviewed the individual’s entire
medical record at the facility. The individual also submitted the voluminous medical records that he had
received from the DOE pursuant to a request under the Freedom of Information Act; those records appear
to be incomplete, notwithstanding their volume, but contain nothing inconsistent with the testimony. See
Ex. B.
5
The next day, the individual took one pill several hours before going to work on the night
shift. Id. at 99. The night shift is the individual’s preferred shift, which he had worked the
prior six months and had once worked continuously for five years. He does not
experience drowsiness or sleepiness while working the night shift. Id. at 87.
The individual believed that “diet pill” would reduce his appetite, but he felt no effects
from the pill on his appetite or in any other way. Id. at 90.
At the end of his shift, the individual was notified that he had been selected for random
alcohol and drug testing. Id. at 100. The individual tested positive for amphetamines. See
Ex. 6.
The individual did not take the remaining two diet pills that he had been given by sister-
in-law; instead, he and his wife flushed both pills down the toilet. Tr. at 22 – 23, 88.
Since that time the individual has tried to emphasize changes in his diet and exercise
program to address his weight concerns. He has also reduced his intake of any non-food
substances, including over-the-counter medications and vitamins. Id. at 33, 39 –40, 92,
95, 96.
V. Analysis
I have thoroughly considered the record of this proceeding, including the submissions
tendered in this case and the testimony of the witnesses presented at the hearing. In
resolving the question of the individual’s eligibility for access authorization, I have been
guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c)8 and the Adjudicative
Guidelines. After due deliberation, I have determined that the individual’s access
authorization should be restored. Restoring the individual’s DOE security clearance will
not endanger the common defense and security and is clearly consistent with the national
interest. 10 C.F.R. § 710.27(a). The specific findings that I make in support of this
decision are discussed below.
In assessing the testimony offered by the individual and his family members, two themes
emerge with respect to the period preceding the individual’s November 2012 random
drug screening. First, the individual was conscious of his weight: his medical records
describe him as frequently exhibiting obesity and his wife described him as having
gained about 30 to 40 pounds over the prior three to five years. Id. at 27; See Ex. B.
Additionally, he believed that failure to maintain good health and an appropriate weight
could jeopardize his employment. Tr. at 18, 41, 92. His brother-in-law who works for the
same DOE contractor and at the same facility also testified as to stories that circulated
among workers at the facility of employees who had been fired for being overweight. Id.
8 Those factors include the following: the nature, extent, and seriousness of the conduct, the circumstances
surrounding the conduct, to include knowledgeable participation, the frequency and recency of the conduct,
the age and maturity at the time of the conduct, the voluntariness of his participation, the absence or
presence of rehabilitation or reformation and other pertinent behavioral changes, the motivation for the
conduct, the potential for pressure, coercion, exploitation, or duress, the likelihood of continuation or
recurrence, and other relevant and material factors.
6
at 75 – 77. I make no assessment of the accuracy of such reports, but note them as
relevant to the individual’s state of mind. Second, his sister-in-law had lost a considerable
amount of weight (67 pounds in the prior year according to her own testimony). Id. at 64.
When the testimony of family members touched on her weight loss, they spoke of her
accomplishment with obvious admiration. Id. at 26 – 27, 103.
The individual was also concerned that the holiday season was approaching and that he
had commonly gained weight during the holidays. When he saw his sister-in-law one
weekday evening after a church program, he inquired as to how she had lost weight. Ex.
7 at 10, Tr. at 66. She said that she had gotten an “appetite suppressant” from her doctor
and offered to let him try a few of her “diet pills.” Id. at 64 –66. All witnesses with first-
hand knowledge of the event credibly testified that the sister-in-law spontaneously
offered the “diet pills” and that the individual had not asked for them. Id. at 64, 66, 69.
She gave him three pills only and did so as a gift. The sister-in-law testified that it did not
occur to her that it was illegal to give medications that had been prescribed for her to
another person; she thought she was merely being helpful. Id. at 68, 69.
Conversely, the individual testified that he was aware of the prohibition on taking drugs
that had been prescribed for another person. However, from the individual’s demeanor
while testifying, I did not doubt that at the time his sister-in-law gave him the “appetite
suppressants” he made no conscious connection between these “appetite suppressants”
and the prohibition on the misuse of prescription drugs: he was caught up in the
excitement of possibly controlling his weight over the holidays and replicating his sister-
in-law’s success. Id. at 84, 85, 103. This is an oversight which the individual has credibly
testified that he regrets and never intends to make again. Id. at 85 – 86, 96, 98. His wife
testified that since his November 2012 positive drug screen, the individual refuses to take
even over-the-counter medications like aspirin. Id. at 33, 39 – 40. Both he and his wife
testified that neither of them had ever taken diet pills in the past and that they did not
know that some contained amphetamines. Id. at 18 – 19, 86.
To the individual’s credit, he only took one of the “diet pills” and, after he learned of the
positive result on his drug screening, he and his wife both testified that the two of them
flushed the remaining two pills down the toilet. Id. at 22 – 23, 88.
In addition to testimony by family members as to the individual’s reliability and
trustworthiness, his manager testified that the individual was a role model for others in
the church, community and workplace. Id. at 49. The individual is one of 175 people who
is under the direction of the manager. Id. at 57. When the manager was a junior employee
at the facility, the individual was someone who he respected and hoped to emulate; as a
manager, he pairs the individual with new employees and employees who are
experiencing problems with rules, procedures and processes because of the positive
influence that the manager expects the individual will have on such employees. Id. at 49,
55 – 57.
Security concerns triggered under Criterion K are subject to mitigation when “the
behavior happened so long ago, was so infrequent, or happened under such circumstances
that it is unlikely to recur or does not cast doubt on the individual’s current reliability,
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trustworthiness, or good judgment.” Adjudicative Guidelines at Guideline H ¶ 26(a). In
this case, the individual took a single “diet pill” without consciously making the
connection that this was prohibited behavior. Once he became aware that the pills were
prohibited, he destroyed the remaining pills that he had in his possession. The
individual’s one-time use of a single pill is clearly within the definition of “infrequent”
use. Further support that this was “infrequent” and unlikely to recur is found in the
individual being subjected to random drug screenings during the 28 years immediately
preceding this incident and testing negative on all of those screenings. Therefore, I find
that the individual has resolved the security concerns arising under Criterion K.
As noted above, the Bond Amendment precludes a security clearance for a “person who
is an unlawful user of the controlled substance or an addict . . .” There is no contention
that the individual’s use of a diet pill reflects habitual use or an addiction, as required to
be within the definition of an “addict” under the Bond Amendment. The Bond
Amendment does not define “an unlawful user of a controlled substance.” The
individual’s usage was an isolated event which is unlikely to recur (the mitigation factor
under Criterion K noted above) and, therefore, the individual does not fall within the
meaning of “an unlawful user” under the Bond Amendment. See Personnel Security
Hearing, Case No. PSH-12-0031 (2012) (ingestion of four hydrocodone tablets
prescribed for someone in a suicide gesture is an isolated event unlikely to recur and,
therefore, the individual is not an unlawful user under the Bond Amendment); Personal
Security Hearing, Case No. TSO-1059 (2011) (use of spouse’s prescription drug four or
five times over a 16 month period prior to obtaining one’s own prescription for the same
drug does not constitute being an unlawful user under the Bond Amendment); Personnel
Security Hearing, Case No. TSO-0926 (2010) (mitigation under Criterion K of one-time
use of an illegal drug resolves security concerns under the Bond Amendment).
VI. Conclusion
In the above analysis, I have found that there was sufficient derogatory information in the
possession of the DOE that raises security concerns under Criterion K and the Bond
Amendment. After considering all the relevant information, favorable and unfavorable, in
a comprehensive common-sense manner, including weighing all the testimony and other
evidence presented at the hearing, I have found that the individual has brought forth
sufficient evidence to mitigate the security concerns associated with Criterion K and the
Bond Amendment. Accordingly, I have determined that the individual’s access
authorization should be restored. The parties may seek review of this Decision by an
Appeal Panel under the regulations set forth at 10 C.F.R. § 710.28.
Wade M. Boswell
Hearing Officer
Office of Hearings and Appeals
Date: June 27, 2013