PSH-15-0045

*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: June 5, 2015 ) Case No.: PSH-15-0045
____________________________________)
Issued: August 24, 2015
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Administrative Judge Decision
______________________
Shiwali G. Patel, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (hereinafter referred to as “the
individual”) for access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled
“Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special
Nuclear Material.”1 For the reasons set forth below, I conclude that the Department of Energy should
restore the individual’s access authorization at this time.2
I. BACKGROUND
The individual is an employee of a Department of Energy (DOE) contractor and has a suspended
access authorization. A Local Security Office (LSO) summoned the individual for a Personnel
Security Interview (PSI) with a personnel security specialist in January 2015, in order to address
issues concerning his use of medical marijuana, which he reported during an interview with an
Office of Personnel Management (OPM) investigator during a reinvestigation for his security
clearance. Ex. 3. Based on information revealed during the reinvestigation, the Local Security
Office (LSO) determined that there was derogatory information that cast into doubt the individual’s
continued eligibility for access authorization. The LSO informed the individual of this determination
1 An access authorization is an administrative determination that an individual is eligible for access to classified matter or
special nuclear material. 10 C.F.R. § 710.5. Such authorization will be referred to in this Decision as access authorization
or a security clearance.
2 Decisions issued by the Office of Hearings and Appeals (OHA) are available on the OHA website located at
http://www.energy.gov/oha.
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in a letter that set forth the DOE’s security concerns and the reasons for those concerns. DOE
Exhibit (Ex.) 1. The Notification Letter also informed the individual that he was entitled to a hearing
before an Administrative Judge in order to resolve the substantial doubt concerning his eligibility for
access authorization.
The individual requested a hearing in this matter. The LSO forwarded this request to OHA, and the
OHA Director appointed me the Administrative Judge. The DOE introduced seven exhibits into the
record of this proceeding (Exs. 1-7). The individual introduced one exhibit into the record, labeled
Exhibit A. The individual presented the testimony of five witnesses, including himself. See
Transcript of Hearing, Case No. PSH-15-0045 [hereinafter cited as “Tr.”].
II. REGULATORY STANDARDS
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710 dictate
that, in these proceedings, an Administrative Judge must undertake a careful review of all of the
relevant facts and circumstances, and make a “common-sense judgment . . . after consideration of all
relevant information.” 10 C.F.R. § 710.7(a). I must therefore consider all information, favorable and
unfavorable, that has a bearing on the question of whether restoring the individual’s security
clearance would compromise national security concerns. Specifically, the regulations compel me to
consider the nature, extent, and seriousness of the individual’s conduct; the circumstances
surrounding the conduct; the frequency and recency of the conduct; the age and maturity of the
individual at the time of the conduct; the absence or presence of rehabilitation or reformation and
other pertinent behavioral changes; the likelihood of continuation or recurrence of the conduct; and
any other relevant and material factors. 10 C.F.R. § 710.7(c).
A DOE administrative proceeding under 10 C.F.R. Part 710 is “for the purpose of affording the
individual an opportunity of supporting his eligibility for access authorization.”
10 C.F.R. § 710.21(b)(6). Once the DOE has made a showing of derogatory information raising
security concerns, the burden is on the individual to produce evidence sufficient to convince the
DOE that granting or restoring 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
regulations further instruct me to resolve any doubts concerning the individual’s eligibility for access
authorization in favor of the national security. 10 C.F.R. § 710.7(a).
III. NOTIFICATION LETTER AND ASSOCIATED SECURITY CONCERNS
The Notification Letter stated that the LSO possessed information pertaining to subsections (k)3 and
(l)4 of the criteria for eligibility for access to classified matter or special nuclear material set forth at
3 Criterion (k) defines as derogatory information when an individual 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,
or as otherwise authorized by Federal law.” 10 C.F.R. § 710.8(k).
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10 C.F.R. § 710.8. Ex. 1. Under criteria (k) and (l), the LSO stated that following: (1) during his
PSI in January 2015, the individual admitted that he used medical marijuana on ten occasions from
December 2000 to June 2001, while he possessed a security clearance, and he knew that marijuana
was against Federal law; (2) in July 2014, he signed a Questionnaire for National Security Positions
(QNSP) certifying that he never illegally used or been involved with a drug or a controlled substance
while possessing a security clearance; (3) in July 2011, he signed a QNSP certifying that he never
illegally used a controlled substance while possessing a security clearance; and (4) in March 2001, he
signed a QNSP certifying that he never illegally used a controlled substance while possessing a
security clearance, nor illegally used any controlled substance in the previous seven years. Ex. 1.
The use of illegal drugs raises questions about an individual's reliability, trustworthiness and ability
to protect classified information because it may impair judgment and it demonstrates that a person
may not be willing to comply with laws, rules, and regulations. See Revised Adjudicative Guidelines
for Determining Eligibility for Access to Classified Information, The White House, Guideline H
(December 19, 2005) [hereinafter Adjudicative Guidelines]. The failure to provide truthful and
candid answers during a security clearance process also raises questions about an individual’s
reliability, trustworthiness and ability to protect classified information. Id., Guideline E. Thus, the
above information adequately justifies the LSO’s invocation of criteria (k) and (l).
IV. FINDINGS OF FACT
Summarized below are my findings, which are based on the testimony presented at the hearing and
the exhibits submitted into the record by the DOE and the individual.
The individual is an employee of a DOE contractor and obtained a security clearance in 2001. Tr. at
78. The individual suffered from headaches since he was a child and in 1999, he learned that his
headaches were migraines. Tr. at 71-72. After years of trying different medications without success
and getting tested for various pharmaceutical drugs, he obtained a recommendation from a doctor at
a treatment facility in May 2007, to use medical marijuana for a year, or until May 2008.5 Ex. A. He
explained that the recommendation from the doctor was considered a certificate from his state to
lawfully obtain medical marijuana from a dispensary. Tr. at 73. The individual used medical
marijuana approximately 10 to 12 times in an eight-month period and he stopped using it after
realizing that it was ineffective for treating or preventing his migraines. Tr. at 73, 75. He took
medical marijuana either on the weekends or during the weekdays only if he stayed home from work
due to his migraines. Tr. at 78. He never came to work after ingesting marijuana. Id.
4 Criterion (l) defines as derogatory information when an individual has “[e]ngaged in any unusual conduct or is subject
to any circumstances which tend to show that the individual is not honest, reliable, or trustworthy; or which furnishes
reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress which may cause the
individual to act contrary to the best interests of the national security.” 10 C.F.R. § 710.8(l).
5 While the individual stated that he used medical marijuana from 2000 to 2001 during his PSI in January 2015, he
clarified that he actually used it from 2007 to 2008 and submitted documentation from the treatment center to corroborate
his testimony. Ex. A; Tr. at 84.
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In 2008, also around when the individual stopped ingesting marijuana, his employer began requiring
that employees undergo random drug screening.6 He was not concerned by the random drug tests
because he did not think his usage of marijuana was illegal as it was for medical purposes only and
recommended by a physician. Tr. at 76, 82. However, he testified: “I just didn’t want to borrow
trouble that, you know, would mean that I would have to explain to someone more than I needed
to,”7 when explaining why he stopped using the medical marijuana in 2008. Tr. at 76. Nonetheless,
the individual maintains that he “never knew that medicinal marijuana was not legal to DOE” and
that at the time, he believed that his use of marijuana was legal as it was recommended by a doctor.
Tr. at 82.
In the QNSP that he signed in July 2011, in response to questions asking whether he ever illegally
used drugs in the previous seven years or ever illegally used a controlled substance while possessing
a security clearance, the individual answered “no.” Ex. 5. He gave the same response to those
questions in the QNSP that he signed in July 2014.8 Ex. 4. He took the admonitions in the QNSPs
very seriously and he did not know that medical marijuana was deemed illegal by the DOE. Tr. at
77, 82. He was also not aware about the federal law with regard to medical marijuana.9 Tr. at 82-83.
As he believed that he did not illegally use drugs, he thought his responses to those questions were
truthful. Tr. at 80-82. I observed his demeanor while he testified and I credit his testimony that he
believed that his usage of medical marijuana was legal while he used it and when he completed his
QNSPs.
The individual has never used marijuana at any other time in his life or any illegal drug for
recreational purposes. Tr. at 72, 84. During his interview with the OPM investigator in 2014, when
6 In total, he has had three random drug tests since 2008, and he testified that they were all negative. Tr. at 77, 88.
7 To provide more context, here is the text from the transcript of the individual’s testimony on this issue:
A. But in 2008, or thereabouts, we were told at the laboratory that random drug screening would begin and that
this was basically a urine test and any – any drugs that were in your system would be detected and – and you
would be asked about those if they weren’t prescribed.
Q. Were you worried about the drug testing?
A. Well, basically, I wasn’t worried about it. I just didn’t want to borrow trouble that, you know, would mean
that I would have to explain to someone more than I really needed to.
Q. And you didn’t feel that you needed to explain, is that correct?
A. That’s correct.
Q. And can you be very clear as to why you felt you didn’t need to explain?
A. Well, because I had a recommendation from a physician, I felt this was a valid use of the medical marijuana
as a – medical treatment, I guess, and I did not feel in that context that it was illegal.
Tr. at 76.
8 The following are the questions in the 2014 QNSP to which the individual answered “no”: 1) “In the last seven (7)
years, have you illegally used any drugs or controlled substances?”; 2) “In the last seven (7) years, have you been
involved in the illegal purchase, manufacture, cultivation, trafficking , production, transfer, shipping, receiving, handling
or sale of any drug or controlled substance?”; and 3) “Have you ever illegally used or otherwise been involved with a
drug or controlled substance while possessing a security clearance other than previously listed?” Ex. 4. These questions
are almost identical to the questions in the 2011 QNSP pertaining to illegal drug use. Ex. 5.
9 When asked if he had “any knowledge about the federal law approach to medical marijuana,” he responded, “No. I -- I
knew that it was – you know, that I --- I basically knew that marijuana was illegal under both state and federal laws, but
for medicinal purposes, the state permits it under – under those circumstances,” which he relied on. Tr. at 82-83.
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the investigator specifically asked him whether he ever used marijuana, he replied “yes.” Tr. at 85.
The individual stated that it was the first time he was directly asked about whether he used marijuana
and he answered truthfully. Id. He reiterated during the hearing that he has not used marijuana since
he used it in 2007-2008, he has never used it for illegal purposes and he will not use it again for any
purpose. Tr. at 86.
The individual’s former colleague and friend, who has known the individual for over 20 years,
testified. Tr. at 22. The witness held high level positions at the facility where he worked with the
individual and at one point he was an associate director of a division. Tr. at 25. He testified that he
interviewed the individual to work at their facility and participated in his reviews at work. Tr. at 23.
He described the individual as having “impeccable” judgment, explaining that “[h]e was very careful
not to overstate his work, not to overstate anything, and to be, you know, very careful in this regard.”
Tr. at 27. He and the individual socialized together in the 1990s and he stated that they are both
“very drug phobic,” and that he has never observed the individual in a setting where anyone was
using marijuana or any drug. Tr. at 31. He also described the individual as very responsible, stating
that he would trust him with his children. Tr. at 33. He also acknowledged that he was never aware
of a DOE regulation specifically forbidding the use of medical marijuana, despite his management
responsibilities.10 Tr. at 33.
An employee of the same contractor, who is two levels above the individual and has known him for
20 years, testified. Tr. at 42. Their interactions are mostly professional and related to work. Tr. at
43. He characterized the individual’s judgment as “sound,” saying that he is “very, very thoughtful”
and that “he tends to be pretty conservative in his views.” Tr. at 45-46. Another colleague of the
individual, who has known him for 10 years, testified. Tr. at 49. She, too, stated that he is an
“extremely thoughtful person with very good judgment” and that he is “absolutely trustworthy.” Tr.
at 52, 55. Like the other witness and the individual, she was not aware of the DOE regulations
pertaining to the use of medical marijuana and while she remembers trainings and discussions on
illegal drugs, she does not remember any specifically related to medical marijuana. Tr. at 54.
A close friend of the individual and his wife testified about their relationship and his headaches. Tr.
at 57. She stated that his wife has had concerns about his headaches and that when the individual has
headaches, he goes into his room and is “incognito.” Tr. at 61-62. She corroborated his testimony
that he has tried various pharmaceutical medications to cope with his headaches and has also tried
other approaches, such as changing his diet. Tr. at 62. Furthermore, he stated that “[h]e has the self-
control and the self-discipline to regulate his own behavior.” Tr. at 62. She has never observed the
individual or his wife use drugs for recreational purposes, saying “that has been a point of some pride
and self-respect on their part.” Tr. at 62-63. She further stated that he is “consistent, reliable [and]
honest.” Tr. at 63.
10 In the discussing his lack of awareness of the regulations pertaining to medical marijuana use, the witness stated that
“we were absolutely buried in regs, . . . . For some reason that I don’t – can’t account for, I never encountered this
particular regulation. It never came up.” Tr. at 33-34.
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V. ANALYSIS
A. Criterion (k)
I find that the individual has mitigated the concerns associated with criterion (k) regarding his use of
medical marijuana on 10 to 12 occasions during an eight-month period in 2007-2008. He credibly
testified that his use of marijuana was only for medical purposes after other medications did not work
on his headaches and it was recommended by a doctor to treat his migraines; he tried it for a limited
period until realizing that it did not alleviate the pain or reduce his migraines. See Adjudicative
Guidelines H, ¶ 26(a) (mitigation when “the behavior happened so long ago, was so infrequent, or
happened under such circumstances that it is unlikely to recur or cast doubt on the individual’s
current reliability, trustworthiness, or good judgment.”). While he was aware that marijuana is
illegal under federal law, he was not aware that ingesting medical marijuana with a doctor’s
recommendation in a state where it legalized medical marijuana was unlawful under federal law. He
also credibly testified that he has never used any illegal drugs for recreational purposes and has no
intention to in the future. This was corroborated by the testimony of his witnesses, specifically by his
friend, who has known the individual for years and socialized with him and his wife on many
occasions. She stated that she knew that he and his wife did not use drugs for recreational purposes,
noting that it has “been a point of some pride and self-respect on their part.” See id., ¶ 26(b)
(mitigation through a “demonstrated intent to not abuse any drugs in the future.”). For these reasons,
I find that he has mitigated the concerns associated with his use of medical marijuana under criterion
(k). See Personnel Security Hearing, Case No. TSO-0586 (2007) (finding mitigation of criterion (k)
concerns raised by the individual’s use of medical marijuana to alleviate a headache, without a
doctor’s prescription or recommendation, due to the solitary nature and the pain reduction motivation
of the use, the lack of evidence that she has used it at any other time, the testimony of witnesses and
evidence provided by a psychologist’s report).
B. Criterion (l)
I also find that the individual has mitigated the concerns associated with criterion (l) pertaining to his
responses in the QNSPs in 2014, 2011 and 2001, regarding his use of illegal drugs. First, as to the
2001 QNSP, the individual clarified that he did not ingest any marijuana in 2001 and accordingly, he
never gave an inaccurate response in the questionnaire regarding his drug use. He credibly explained
why he informed the interviewer during his PSI that he used medical marijuana in 2001, instead of
2007-2008, because he was focused on the issue of the legality of his usage and just gave an estimate
of when the usage occurred. Moreover, he provided a note from the treatment center corroborating
his testimony on that point, and I thus find that the individual has resolved the concerns that relate to
his 2001 QNSP. See Adjudicative Guidelines E, ¶ 17(f) (mitigation when the information was
unsubstantiated).
I also credited his testimony explaining that he did not realize medical marijuana was deemed an
illegal drug for purposes of filling out his QNSP and his eligibility for a security clearance. Indeed,
the relevant questions in the QNSP ask about illegal use of drugs or illegal drug activity, without
specifying that the illegality should be considered under federal law, rather than state law, or
regardless of its prescribed use for medical purposes. While the responsibility ultimately falls on the
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clearance holder to understand the questions in the QNSP and respond accurately, I find that the
individually did not deliberately answer incorrectly in the QNSPs as he believed he was being
truthful because his use of marijuana was limited for medical purposes, which was legal in the state
where he resided.11 Id., ¶ 17(c) (mitigation when “the offense is so minor, or so much time has
passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is
unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good
judgment.”). He also credibly stated that he was not aware of the federal law or DOE view on the
use of medical marijuana. His testimony as to his lack of awareness of the DOE view on medical
marijuana is also corroborated by one of his former colleagues, who held a high level position, and
another colleague, who both testified that they were not aware of the DOE policy concerning medical
marijuana.
Moreover, when the individual was specifically asked about using marijuana by the OPM
investigator, he was honest and informed the investigator about when he used medical marijuana to
cure his migraines, which prompted this administrative process. I therefore do not find that his
responses in the QNSPs pertaining to his illegal drug use were a deliberate omission, concealment or
falsification.12 While there are no mitigating factors in the Adjudicative Guidelines that apply
specifically to this point, it is similar to ¶ 17(b), in that his omission was caused by his own
misunderstanding as to the federal law and DOE policy concerning usage of medical marijuana,
rather than through the improper or inadequate advice of authorized personnel or legal counsel.
Finally, the testimony provided by his witnesses as to his honesty and reliability was very credible
and further supported the individual’s contention that he does not use illegal drugs for recreational
purposes and that he is reliable and trustworthy. For these reasons, I believe that the individual is
honest, reliable and trustworthy,13 and that he has mitigated the concerns under criterion (l) regarding
his responses in the QNSPs in 2014, 2011 and 2001.
I have considered the nature, extent, and seriousness of the individual’s conduct pertaining to his use
of medical marijuana in 2007-2008 and his responses in the QNSPs, the circumstances surrounding
his conduct, the frequency and recency of his conduct, the likelihood of continuation or recurrence of
this conduct, and any other relevant and material factors, as I am required by the regulations. Based
11 When the individual stated that he did not want to “borrow trouble that, you know would mean that I would have to
explain to someone more than I really needed to,” in reference to his employer’s random drug testing in 2008, he was
actually concerned about the administrative hurdle in having to explain for his medical marijuana use, instead of
believing that it would reveal that he violated the law. In all, I deem his testimony to be forthright as to his belief that he
was being honest about his drug use and am persuaded by his own subjective belief in the legality of his use of medical
marijuana.
12 See Personnel Security Hearing, Case No. TSO-0586 (2007) (finding that the individual mitigated the concerns under
criterion (l) associated with her one time use of medical marijuana to treat her migraine after signing a security
acknowledgment form, stating, “it is clear that by signing the form the [i]ndividual indicated her understanding she was
not to use illegal drugs while holding a security clearance. However, the concerns regarding the [i]ndividual’s honesty in
connection with her one-time use of marijuana under the circumstances discussed above have been resolved.”).
13See id. (despite the individual providing inconsistent statements about her understanding of whether her use of
marijuana for medical reasons was legal because she acknowledged that the state required a doctor’s prescription, which
she did not have, the Hearing Officer noted that he believed the inconsistency to be minor and credited her testimony as
to the subjective belief in the legality in her use of marijuana).
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on all of these factors and the Adjudicative Guidelines, I conclude that the individual has resolved
the security concerns presented by the LSO. 10 C.F.R. § 710.7(c).
VI. CONCLUSION
In the above analysis, I have found that there was sufficient derogatory information in the possession
of the DOE that raised serious security concerns under criteria (k) and (l) of the Part 710 regulations.
After considering all the relevant information, favorable and unfavorable, in a comprehensive
common-sense manner, including weighing the testimony and other evidence presented at the
hearing, I have found that the individual has brought forth sufficient evidence to fully resolve the
security concerns at issue. I therefore find that restoring the individual’s DOE access authorization
will not endanger the common defense and is clearly consistent with the national interest.
Accordingly, I have determined that the DOE should restore the individual access authorization. The
parties may seek review of this Decision by an Appeal Panel under the regulations set forth at
10 C.F.R. § 710.28.
Shiwali G. Patel
Administrative Judge
Office of Hearings and Appeals
Date: August 24, 2015