PSH-18-0025

*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: February 12, 2018 ) Case No.: PSH-18-0025
)
__________________________________________)
Issued: July 2, 2018
____________________________
Administrative Judge Decision
____________________________
Richard A. Cronin, Jr., Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXX (hereinafter referred to as “the
Individual”) to retain an access authorization under the Department of Energy’s (DOE) 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, 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) (Guidelines), I conclude that the
Individual’s security clearance should not be restored.
I. BACKGROUND
The Individual is currently employed by DOE and possessed a DOE security clearance.In 1988,
prior to commencing his employment with DOE, the Individual signed a certification committing
not to use illegal drugs. DOE Ex 13; see also Transcript of Hearing (Tr.) at 47–48. On
November 28, 2017, DOE subjected the Individual to a random screening for illegal drug use. See
DOE Ex. 4 at 3; see also Tr. at 57–58. The Individual tested positive for marijuana use. Individual
Ex. 13; see also DOE Ex. 12 at 1. On December 7, 2017, the local security office (LSO) conducted
a Personnel Security Interview (PSI) with the Individual concerning the results of the random drug
screening. DOE Ex. 11 at 3.
In February 2018, the LSO sent the Individual a letter (Notification Letter) advising him that his
security clearance was suspended and that DOE possessed reliable derogatory information that
created substantial doubt regarding his eligibility to retain an access authorization. In an
1 The Regulations define access authorization 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). This
Decision will refer to such authorization as access authorization or security clearance.
- 2 -
attachment to the Notification Letter, the LSO explained that the derogatory information fell within
the purview of Guidelines H (Drug Involvement) and E (Personal Conduct). DOE Ex. 4 at 3. The
Individual requested a hearing and the LSO forwarded the Individual’s request to DOE’s Office
of Hearings and Appeals (OHA).
The Director of OHA appointed me as the Administrative Judge in this matter. I convened the
hearing pursuant to 10 C.F.R. § 710.25(d), (e) and (g), at which time I took testimony from the
Individual and two (2) witnesses offered by the Individual. The LSO submitted thirteen (13)
numbered exhibits (hereinafter cited as “DOE Ex.” followed by the applicable exhibit number).
The Individual submitted thirteen (13) numbered exhibits (hereinafter cited as “Individual Ex.”
followed by the applicable exhibit number) and a cover letter (Individual Ex. Cover Letter).
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY
CONCERNS
The LSO alleged, under Guideline H (Drug Involvement), that the Individual tested positive for
marijuana during a random drug screening, admitted to testing positive for marijuana, and used an
illegal drug while possessing a security clearance. DOE Ex. 4 at 3. Use of an illegal drug can raise
questions about an individual’s reliability and trustworthiness, both because it may impair
judgment and because it raises questions about a person’s ability or willingness to comply with
laws, rules, and regulations. Guideline H at ¶ 24. Marijuana is an illegal drug under the Guidelines.
Id. at ¶ 24(a)(1). Therefore, the Individual’s admission to testing positive for marijuana use justifies
the LSO’s invocation of Guideline H.
In the Notification Letter, the LSO also alleged under Guideline E (Personal Conduct) that the
Individual admitted to testing positive for marijuana use, despite having signed a DOE drug
certification pursuant to which he agreed not to use illegal drugs while employed at DOE. DOE
Ex. 4 at 3. 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 E at ¶ 15. Violation of a
written commitment made by the Individual to his employer as a condition of employment justifies
the LSO’s invocation of Guideline E. Id. at ¶ 16(f).
III. REGULATORY STANDARDS
A DOE administrative review proceeding under Part 710 requires me, as the Administrative Judge,
to issue a Decision that reflects my comprehensive, common-sense judgment, made after
consideration of all of 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
- 3 -
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 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.
IV. FINDINGS OF FACT AND ANALYSIS
The Individual does not dispute the facts set forth in the Notification Letter. See Individual Ex.
Cover Letter. The Individual was arrested in connection with an incident involving marijuana use
in the early 1980s. See Tr. at 46–47. In 1988, prior to beginning his employment with DOE, the
Individual was required to execute a DOE drug certification pursuant to which he agreed not to use
illegal drugs while employed by DOE. DOE Ex. 13; see also Tr. at 47–48. The Individual tested
positive for marijuana use in a random drug screening conducted in November 2017. Individual Ex.
13. The Individual introduced evidence and testimony to try to establish that he unknowingly
consumed the marijuana in baked goods at a party, and that the Individual would never knowingly
use illegal drugs in the future.
I have thoroughly considered the record of this proceeding, including the exhibits and the testimony
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 Guidelines. The security concerns at issue center on the Individual’s testing positive for
marijuana during a random drug screening, despite having executed a DOE drug certification
committing not to use illegal drugs. The Individual presented evidence to try to establish that his
consumption of marijuana was a one-time accident, and that he would not knowingly consume
illegal drugs. After due deliberation, I find that the Individual’s DOE security clearance should not
be restored. Specifically, I cannot find that restoring the Individual’s security clearance would not
endanger the common defense and security, and would be clearly consistent with the national
interest. 10 C.F.R. § 710.27(a). The relevant evidence and my specific findings in support of this
decision are discussed below.
A. Guideline H Security Concerns
The Notification Letter asserted that the Individual raised security concerns under Guideline H as a
result of testing positive for marijuana use on the November 28, 2017, random drug screening. DOE
Ex. 4 at 3. The Individual testified that he received the test results on December 6, 2017. Tr. at 60.
The Individual also testified that he purchased a home test kit on December 6, 2017, and that the
- 4 -
results of the home test kit were positive for marijuana. Id. at 62. The Individual does not contest
that he consumed marijuana. Individual Ex. Cover Letter.
The Individual testified adamantly at the hearing that he has not intentionally consumed marijuana
while employed by DOE. See id. at 61–62. According to the Individual, his arrest for marijuana
possession in the early 1980s was a “scary and [] eye-opening event” that significantly changed his
life. Id. at 46–50. The Individual testified that consuming illegal drugs is against his personal code,
that he does not allow smoking or illegal drug use in his home, and that he has called the police on
drug-using parents of children who he coached in youth sports programs when he perceived the
drug use to be a threat to the children. Id. at 50–51. The Individual also described his teachings to
his children concerning the harms of drug use, that marijuana use by one of his sons had a negative
impact on the son’s life, and how he supported his son’s abstinence from marijuana so that his son
could join the U.S. Army. Id. at 52–55.
Prior to the hearing, the Individual arranged to take a polygraph test concerning his use of illegal
drugs. The Individual submitted the credentials of the test administrator, as well as information on
the test equipment and methodology, into the record. Individual Ex. 6. The polygraph test showed
no intent on the part of the Individual to deceive the test administrator when he responded in the
negative to questions as to whether he had used marijuana, or any recreational drugs, since he began
working at DOE. Id. at 2. While the DOE attorney did not object to the admission of this evidence
into the record, I have assigned it minimal evidentiary weight due to the well-documented
limitations of polygraph testing.2
At the hearing, the Individual also asserted that he had advance notice of the random drug screening,
and that he could have easily avoided it if he had knowingly consumed marijuana. The Individual
offered into evidence an email to which he was copied, dated November 27, 2017, indicating that
DOE would conduct random drug screenings on November 28th and 29th. Individual Ex. 7. The
Individual testified that he read the email on November 27th, and confirmed the use of rooms for
the drug screening with a scheduler. Tr. at 59. The Individual also introduced a report showing that,
as of April 2018, he had accrued over one thousand (1,000) hours of sick leave. Individual Ex. 3.
According to the Individual, “[i]f [he] had any idea of what lied in [his] body [], [he] could have
easily called [his] supervisor and [] took a sick day [].” Tr. at 60.
The Individual offered the testimony of two (2) witnesses, his best friend and a former coworker,
who had both known him since the 1980s, who both testified that they had never seen the Individual
consume illegal drugs and that doing so would be out of his character. Id. at 12, 14–16, 29–33. In
addition, the Individual offered letters from some of the leading members of his community
2 Polygraph test results are of dubious probative value. See United States v. Scheffer, 523 U.S. 303, 312 (1998) (“there
is simply no way to know in a particular case whether a polygraph examiner’s conclusion is accurate, because certain
doubts and uncertainties plague even the best polygraph exams.”). Moreover, OHA has assigned no weight to the
results of polygraph tests in numerous prior cases. See, e.g. Personnel Security Hearing, OHA Case No. PSH-12-0144
at 8 (2012) (“I assign no probative value to the testimony of the polygraph technician or the results of his polygraph
examination [].”); see also Personnel Security Hearing, OHA Case No. TSO-1023 (2011) at n. 7 (explaining that, due
to “reliability issues associated with polygraph examinations, I did not consider this evidence in my deliberations.”).
Decisions issued by OHA are available on the OHA website located at http://www.energy.gov/OHA.
- 5 -
concerning his upstanding character. Individual Ex. 4. The Individual also offered an affidavit from
his fiancé attesting that the Individual is not a user of any illegal drugs. Individual Ex. 12.
The Individual sought to explain testing positive for marijuana use by asserting that he consumed
the marijuana in snacks that he ate at a party on November 24, 2017. Tr. at 68–71. The Individual
reported that he initially believed that doctor-prescribed medication he takes for several conditions
may have caused the positive drug test. Id. at 60–61. However, a doctor with whom the Individual
discussed the results of the random drug screening dismissed this possibility. Id. After discussing
the matter with his fiancé, the Individual changed his focus to a party he attended with his fiancé to
socialize with one of her coworkers. Id. at 62–63. The Individual recalled that he smelled marijuana
at the party. Id. at 86–87. The Individual testified that he ate “a couple brownies, a couple cookies,
[and] Chex Mix . . . .” Id. at 86. The Individual did not report feeling any effects of marijuana
consumption after eating the aforementioned snacks, did not see any marijuana at the party, and did
not hear anyone mention that marijuana was in any of the food. Id. at 72, 92–93. According to the
Individual, after he received the results of his drug test, his fiancé called her friend who was present
at the party and “her friend . . . said ‘yeah, there was some stuff.’” Id. at 71. However, the affidavit
of the Individual’s fiancé made no mention of this conversation. Individual Ex. 12. The Individual
did not offer any witness testimony, besides his own, or evidence supporting his claim that the
snacks at the party contained marijuana.
An individual may mitigate security concerns under Guideline H if “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, trustworthiness, or good judgment.” Guideline
H at ¶ 26(a). In cases where individuals have cited accidental consumption of illegal drugs as a
mitigating factor, OHA has restored access authorization where such individuals have come
forward with compelling evidence to that effect, and has not restored access authorization on the
basis of individuals’ unsupported guesses as to how they consumed the illegal drugs. Compare
Personnel Security Hearing, OHA Case No. PSH-15-0056 (2015) (restoring an individual’s access
authorization when the individual’s son testified at the hearing that he left an unmarked bag of
baked treats containing marijuana in the individual’s home, and the individual testified that he ate
the baked treats without knowing they contained marijuana), with Personnel Security Hearing,
OHA Case No. TSO-0976 at 4 (2011) (denying the restoration of an individual’s access
authorization when the individual merely “speculate[d] that he may have accidentally ingested
marijuana that could possibly have been baked into cookies at one of several ‘pot-luck’ parties he
had attended.”).
In this case, the Individual has presented character evidence to the effect that it is out of his
character to consume illegal drugs and an email showing that he had advance notice of the drug
screening and could have called out of work sick if he knew he had recently consumed marijuana.3
3 I note that the Individual might have used the advance notice to delay the drug screening only if he both knowingly
used marijuana and believed that he would test positive. The Individual testified during the hearing about his past
miscalculation of how long marijuana would remain detectable in a person’s body when he attempted to help his son
join the U.S. Navy, stating that the Individual “went and got a drug test for him and we did one at home and he passed.
And then he went to [the testing location] and they caught him on a positive before going in the Navy. He had not
- 6 -
However, the only evidence the Individual has offered to support his claim that he accidentally
consumed the marijuana in a baked good at the party is his deduction that marijuana might have
been in the baked goods because he smelled marijuana at the party and his testimony that a friend
of his fiancé confirmed to his fiancé that there was “stuff” at the party. This speculation is not
sufficient to establish that the Individual unknowingly consumed marijuana.
An individual may also mitigate security concerns under Guideline H by demonstrating his or her
intent not to abuse any drugs in the future, including submitting “a signed statement of intent with
automatic revocation of clearance for any violation.” Guideline H at ¶ 26(b)(3). The Individual
submitted a statement into the record stating that he used illegal drugs, that he agreed to refrain
from drug use in the future, that he understood that DOE would test him for drug use in the future,
and acknowledging “that action will be initiated to remove me from the Federal service if a
determination is made that I have used illegal drugs after signing this form.” Individual Ex. 1. This
form clearly does not waive any of the Individual’s rights in the event he is found to have used
drugs in the future through automatic revocation of his security clearance. Further, there is no
evidence that the LSO has concurred with this statement. Therefore, the Individual’s signed
statement does not mitigate the Individual’s drug use under Guideline H.
It is possible that the Individual is the victim of an extraordinarily unlucky accident. However, his
burden in a Part 710 hearing is a heavy one because “security determinations should err, if they
must, on the side of denials.” Dorfmont, 913 F.2d at 1403. For the above reasons, I find that the
LSO properly asserted Guideline H based on the Individual testing positive for marijuana during a
random drug screening and that none of the mitigating factors set forth under Guideline H are
applicable.
B. Guideline E Security Concerns
The Guideline E security concerns arise from the Individual testing positive for marijuana use
despite signing a DOE drug certification pursuant to which he agreed to refrain from illegal drug
use as an employee of DOE. DOE Ex. 4 at 3. The Individual signed this agreement, albeit at the
beginning of his long career, because of his prior marijuana-related arrest and “with the full
knowledge and expectation that should something [] ever happen in the future [he] would be
dismissed.” Tr. at 47–48. The LSO properly asserted the Individual’s violation of this commitment
under Guideline E. Guideline E at ¶ 16(f). Despite the laudatory character letters submitted on the
Individual’s behalf, there is insufficient evidence in the record to conclude that the Individual
unintentionally violated the terms of the DOE drug certification. Further, the breach of the DOE
drug certification is recent and significant. Consequently, I find that none of the mitigating factors
under Guideline E are applicable.
V. CONCLUSION
completely cleaned out. Evidently their test was a lot more thorough than the home one I bought.” Tr. at 54. Moreover,
the fact that the Individual reported testing positive for marijuana on a home test at least twelve (12) calendar days
after he claimed to have consumed the marijuana calls into question whether he could have used sick days to
adequately delay the drug screening. See id. at 62.
- 7 -
In the above analysis, I found that there was sufficient derogatory information in the possession of
DOE that raised security concerns under Guidelines H and E. After considering all of 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 find that the Individual
has not brought forth sufficient evidence to resolve the security concerns set forth in the
Notification Letter. I therefore cannot find that restoring the Individual’s access authorization
would endanger the common defense and would be clearly consistent with the national interest.
Accordingly, I have determined that the DOE should not restore the Individual’s access
authorization.
Richard A. Cronin, Jr.
Administrative Judge
Office of Hearings and Appeals