PSH-18-0004

*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: January 5, 2017 ) Case No.: PSH-18-0004
)
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Issued: March 27, 2018
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXX (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 discussed
below, after carefully considering the record before me in light of the relevant regulations and the
National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified
Information or Eligibility to Hold a Sensitive Position (June 8, 2017) (Adjudicative Guidelines or
Guidelines), I conclude that the individual’s access authorization should be granted.
I. Background
The individual is employed by a DOE contractor in a position that requires her to hold a DOE
security clearance. The individual’s Questionnaire for National Security Positions (QNSP) raised
potentially derogatory information regarding the individual’s illegal drug use. Ex. 5 at 26.
Therefore, in response, the Local Security Office (LSO) called the individual in for a Personnel
Security Interview (PSI) in July 2017. Ex. 6.
Because the PSI did not resolve the security concerns, the LSO informed the individual in a
Notification Letter dated November 2, 2017 (Notification Letter), that it possessed reliable
information that created substantial doubt regarding her eligibility to hold a security clearance. In
an attachment to the Notification Letter, the LSO explained that the derogatory information raised
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.
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security concerns under “Guideline E: Personal Conduct” and “Guideline H: Drug Involvement”
of the Adjudicative Guidelines (Guideline E and Guideline H). Ex. 1.
Upon her receipt of the Notification Letter, the individual exercised her right under the Part 710
regulations by requesting an administrative review hearing. Ex. 2. The Director of the Office of
Hearings and Appeals (OHA) appointed me the Administrative Judge in the case, and I
subsequently conducted an administrative hearing in the matter. At the hearing, the LSO
introduced seven numbered exhibits (Exhibits 1-7) into the record. The individual presented the
testimony of six witnesses, including herself. 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.2
II. Regulatory Standard
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
regulations require me, as the Administrative Judge, 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). 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 at the hearing with evidence to convince the DOE that granting
or 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). Hence, an individual is afforded the utmost latitude in the presentation of evidence to
mitigate the security concerns at issue.
III. The Notification Letter and the Security Concerns at Issue
As previously mentioned, the Notification Letter included a statement of derogatory information
that raised concerns about the individual’s eligibility for access authorization. The information in
the letter specifically cites Guidelines E and H of the Adjudicative Guidelines. Guideline E relates
to security risks arising from personal conduct. Conduct involving questionable judgment, lack of
candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about
an individual’s reliability, trustworthiness, and ability to protect classified information. Guideline
2 OHA decisions are available on the OHA website at www.energy.gov/oha. A decision may be accessed by entering
the case number in the search engine at that site.
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E at ¶ 15. In citing Guideline E, the LSO stated that it relied upon the individual’s admission that
her co-habitant currently uses marijuana and, that between 2008 and 2013, the individual would
smoke marijuana one to three times a week. Ex. 1 at 1.
Guideline H relates to an individual’s drug involvement, which raises questions about an
individual’s reliability and trustworthiness. Guideline H at ¶ 14. In citing Guideline H, the LSO
cited that the individual admitted: (1) smoking marijuana one to three times a week between 2011
and 2013; (2) giving her co-habitant $10 to $20 a month to purchase marijuana between 2011 and
2013; (3) giving her co-habitant $20 to $40 a month to purchase marijuana between 2008 and
2011; (4) smoking marijuana three to four times a week between 2008 and 2011; (5) smoking
marijuana eight to ten times a month between 2001 and 2008, including purchasing the marijuana
eight to ten times a month, spending between $10 and $40 each time; (6) driving while under the
influence of marijuana three to five times between 2001 and 2003; (7) attempting to grow
marijuana in 2010 or 2011; (8) trying cocaine approximately 12 times between 2004 and 2005,
including purchasing it on three occasions; (9) using ecstasy three or four times between 2004 and
2005, including purchasing it on each occasion; (10) trying mushrooms on two occasions between
2004 and 2005, including purchasing it on each occasion; (11) illegally ingesting Vicodin on two
occasions in 2007, although she did not have a prescription. Ex. 1 at 1-2.
In light of the information available to the LSO, the LSO properly invoked Guidelines E and H.
IV. Findings of Fact and Hearing Testimony
The individual does not dispute the facts alleged in the Notification Letter. Tr. at 68. As such, I
adopt the factual allegations in the Notification Letter as my factual findings in this case. The
individual presented five character witnesses, including her co-habitant, her grandmother, her
uncle, her supervisor, and her best friend’s mother.
The individual testified that she stopped using marijuana in 2013 because she wanted to start a
“real career.” Tr. at 56. She testified that she was totally honest on her QNSP and during the PSI
in July 2017. Id. at 61, 70. When she was hired at DOE, the individual asked her co-habitant to
not have marijuana in their home and to not smoke marijuana in her presence. Tr. at 58. She
testified that he acquiesced to her requests, but she still smelled marijuana’s odor on her co-habitant
occasionally. Id. at 68. The individual asserted that her co-habitant stopped smoking marijuana
the day she had her PSI, in July 2017. Id. at 66. She continued that they are more active together
and their relationship has grown since they both stopped smoking marijuana. Id. at 74. The
individual declared that marijuana will not “affect my future, because it's completely out of my
life and [his] life.” Id. at 63. She concluded that her co-habitant’s first reason for ceasing his
marijuana usage was to “help her career,” but after he researched its physical side effects and
determined that his use could affect their ability to have children, he decided that he will never
smoke marijuana again. Id. at 60, 64.
The individual’s grandmother and her uncle testified that the individual is very trustworthy and
reliable, and that whenever the family needs help, the individual is the first to respond. Tr. at 15,
19, 49, 50, 52. The best friend’s mother confirmed their assessment. Id. at 23, 24. All three of
these witnesses also testified that the individual is honest. Id. at 14-15, 24, 25, 48. The individual’s
supervisor testified that the individual is trustworthy and very honest. Id. at 32, 33. She continued
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that the individual has not attempted to violate any terms of her current work situation, where she
must be escorted everywhere she goes. Id. at 46.
The individual’s co-habitant testified that they have been residing together since 2008. Tr. at 81.
He continued that the individual asked him to stop smoking around her when she got her job at the
DOE facility. Id. at 83. The co-habitant stated that, after the individual asked him not to have
marijuana in their house nor to smoke around her, he would smoke in the side yard or back yard
and hid his marijuana from her. Id. at 83, 84. The co-habitant asserted that, even when he was
using marijuana, he would only smoke a little directly before going to sleep. Id. at 93. The
co-habitant testified that, immediately after the individual’s PSI in July 2017, he stopped smoking
marijuana and has not used any illegal drugs since that date. Id. at 85. He confirmed the
individual’s assertion that their relationship is better and that they have more in-depth
conversations. Id. at 95. The co-habitant claimed that will never use marijuana again. Id. at 96.
He confirmed the individual’s testimony that he researched the side effects of marijuana and was
appalled by what he ascertained, including that it can cause anxiety, depression, increased risk for
heart attack or stroke, and fetal cell deformities. Id. at 88, 89. The co-habitant concluded, “her
life is my life and vice versa.” Id. at 90.
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) and the Adjudicative Guidelines. After due deliberation, I have
determined that the individual’s security clearance should be granted. I find that granting 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.
A. Guideline E
As an initial matter, I note that legitimate security concerns exist as a result of the individual’s
personal conduct. Associating with a person involved in criminal activity can raise a security
concern and may disqualify an individual from continuing to hold a security clearance. See
Guideline E at ¶ 16(g). Furthermore, engaging in activities which, if known, could affect the
person’s personal, professional, or community standing can also raise a security concern and may
disqualify an individual from continuing to hold a security clearance. See Id. at 16(e)(1). Here,
the individual admitted that her co-habitant used marijuana and that, until 2013, she used marijuana
with him.
Guideline E provides that the following conditions (in relevant part) may mitigate security
concerns: (1) 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; (2) the individual has taken
positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress; and (3)
association with person involved in criminal activities was unwitting, has ceased, or occurs under
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circumstances that do not cast doubt upon the individual’s reliability, trustworthiness, judgment,
or willingness to comply with rules and regulations. Guideline E at ¶ 17(c), (e), and (g).
In the present case, the individual has readily admitted that she used marijuana with her co-habitant
between 2008 and 2013. Given the passage of time, almost five years prior to the hearing date, I
find that the individual’s illegal drug use happened so long ago that the Guideline E mitigating
factor described in ¶ 17(c) is applicable to the individual, as her past marijuana use no longer casts
doubt upon her current reliability, trustworthiness or judgment. In addition to the passage of time,
the individual ceased marijuana use, and in fact all illegal drug use, prior to her being hired by the
DOE contractor. It is evident to me that her desire to mature and have a “real career” outweighed
her desire for illegal drugs. Accordingly, the individual has demonstrated mitigation of the
concerns, pursuant to Guideline E at ¶ 17(e).
Further, the individual acknowledged that she asked her co-habitant to stop using marijuana in her
presence when she started working at the DOE, thinking that would be sufficient to satisfy any
concerns the DOE might have regarding her illicit drug involvement. When the individual and her
co-habitant determined that associating with a person who continued to use marijuana would cause
an issue with her security clearance, the individual’s co-habitant immediately ceased smoking
marijuana. His cessation of use occurred nearly eight months prior to the date of the hearing. I
found the individual and her co-habitant to be honest and credible. In fact, after reading the record
but prior to hearing any of the testimony, I was impressed with the individual’s honesty in
answering the questions addressed to her in a complete and truthful manner. Further, the co-
habitant appeared extremely remorseful that his conduct was affecting the individual’s ability to
have her security clearance granted. Both the individual and co-habitant testified that, after he
ceased using marijuana (which occurred as soon as he realized his usage would affect her ability
to get a security clearance), he researched the physical repercussions of his long-term marijuana
use and was surprised by the results. They both testified that neither of them will use marijuana
again, due both to the potential impact on her security clearance and to the physical ramifications
of its use. Accordingly, the individual has demonstrated mitigation of the concerns, pursuant to
Guideline E at ¶ 17(g).
B. Guideline H
I note that legitimate security concerns exist as a result of the individual’s illegal drug involvement.
The illegal use of controlled substances can raise questions about an individual’s reliability and
trustworthiness. Guideline H at ¶ 24. Here, the individual admitted that she had used marijuana,
cocaine, ecstasy, and mushrooms. Guideline H at ¶ 25(a).
Guideline H provides that the following conditions (in relevant part) may mitigate security
concerns: (1) the behavior happened so long ago that is does not cast doubt on the individual’s
current reliability, trustworthiness, or good judgment; and (2) the individual acknowledges her
drug involvement and has established a pattern of abstinence, including disassociation from drug-
using associates. Guideline H at ¶ 26(a) and (b).
As stated above under Guideline E, the individual has admitted that she used illegal drugs,
primarily marijuana, between 2001 and 2013, stopping nearly five years prior to the hearing.
Consequently, I find that the individual’s prior illegal drug use happened so long ago that it no
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longer casts doubt upon the individual’s reliability, trustworthiness or judgment. Accordingly, the
individual has demonstrated mitigation of the concerns, pursuant to Guideline H ¶ 26(a). Further,
with the cessation of use of marijuana by her co-habitant, the individual is no longer associating
with a drug user. Given the individual’s abstinence from illegal drug use and her successful efforts
to end illegal drug use by her co-habitant, I find that the Guideline H mitigating factor described
in ¶ 26(b) is applicable to the individual.
For these reasons, I find that the individual has resolved the security concerns under Guidelines E
and H.
VI. Conclusion
In the above analysis, I have found that there was sufficient derogatory information in the
possession of the DOE that raises serious security concerns under Guidelines E and H. After
considering all of the relevant information, favorable and unfavorable, in a comprehensive
common-sense manner, including weighing all of the testimony and other evidence presented at
the hearing, I have found that the individual has brought forth sufficient evidence to resolve the
security concerns under Guidelines E and H. Accordingly, I have determined that the individual’s
access authorization should be granted. Either party may seek review of this Decision by an Appeal
Panel under the regulations set forth at 10 C.F.R. § 710.28.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals