PSH-20-0020

*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: December 10, 2019 ) Case No.: PSH-20-0020
)
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Issued: September 2, 2020
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Administrative Judge Decision
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James P. Thompson III, Administrative Judge:
This Decision concerns the eligibility of XXXXX (“Individual”) for access authorization under
the Department of Energy’s (DOE) regulations set forth at 10 C.F.R. Part 710, entitled,
“Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear
Material.”1 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”), I conclude that the Individual’s security clearance should be restored.
I. BACKGROUND
The Individual worked in a position which requires him to possess a security clearance. In July
2019, he tested positive for marijuana after being randomly selected for testing as part of his
employer’s drug test program. The Individual was subsequently interviewed by a Medical Review
Officer and his employer’s employee relations office, where he provided information surrounding
the circumstances that resulted in his positive drug test. He then responded to an August 2020 DOE
Letter of Interrogatory (LOI). DOE subsequently requested additional information because the
Individual failed to include a response to one of the questions posed in the LOI.
In November 2019, the Local Security Office (LSO) issued the Individual a letter (“Notification
Letter”) which indicated that the LSO possessed reliable information that created substantial doubt
regarding the Individual’s eligibility for access authorization. See 10 C.F.R. § 710.21. In the
attachment to the Notification Letter, the LSO explained that the derogatory information fell within
the purview of Guideline H of the Adjudicative Guidelines.
1 Under the regulations, “access authorization” means 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 also be referred to in this Decision as a security clearance.
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Upon receipt of the Notification Letter, the Individual exercised his right to request an
administrative review hearing pursuant to 10 C.F.R. Part 710. The LSO forwarded the Individual’s
request to the Office of Hearings and Appeals (OHA). On December 11, 2019, the Director of
OHA appointed me as the Administrative Judge in this matter. Prior to the hearing, DOE submitted
20 exhibits, marked as Exhibits 1 through 20 (cited as “Ex.”). The Individual submitted 28 exhibits,
marked as Exhibits A1 through V. At the hearing, the Individual presented his own testimony.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY
CONCERNS
As indicated above, the Notification Letter informed the Individual that information in the
possession of the DOE created a substantial doubt concerning his eligibility for a security
clearance. The LSO cited Guideline H (Drug Involvement and Substance Misuse) as the basis for
denying the Individual a security clearance. Guideline H addresses “[t]he illegal use of controlled
substances, to include the misuse of . . . non-prescription drugs, and the use of other substances
that cause physical or mental impairment or are used in a manner inconsistent with their intended
purpose” because “such behavior may lead to physical or psychological impairment and because
it raises questions about a person’s ability or willingness to comply with laws, rules, and
regulations.” Adjudicative Guidelines at ¶ 24. Concerning behavior includes “[t]esting positive for
an illegal drug” or “[a]ny illegal drug use while granted access to classified information or holding
a sensitive position.” Id. at ¶ 24(b), (g). The undisputed fact that the Individual tested positive for
marijuana while holding a security clearance justifies the LSO’s invocation of Guideline H.
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
1399, 1403 (9th Cir. 1990) (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 or her 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.
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The discussion below reflects my application of these factors to the testimony and exhibits
presented by both sides in this case.
IV. FINDINGS OF FACT
There is no dispute the Individual tested positive for marijuana during a random drug test. Ex. 2.
The record before me documents the explanations the Individual provided for the cause of his
positive drug test. In his second response to the LOI, the Individual explained that his positive test
resulted from his use of Cannabidiol (CBD) oil that contained less than 0.3% THC per
recommended dose, and the product therefore fell within the “federally legal limit according to the
2018 Farm Act.” Ex. 8b at 1. He also explained that he used it as recommended by his doctor for
joint pain and anxiety, and he only used half of the manufacturer-recommended dose. Id.
The record also indicates that the Individual contacted his employer’s medical clinic and his
manager to discuss his intentions to use CBD oil prior to consuming it. Id. The Individual explained
that he was aware that CBD oil contained THC, and he consulted with the site’s medical clinic “in
an attempt to get more informed about the official company policy regarding CBD usage and the
current drug testing policy.” Ex. 8c at 1. The Individual reported that during his research, the Unit
Manager of Personnel Security in the Security Department (“Unit Manager”) informed the
Individual that by taking CBD oil he would be at risk for failing a drug test for
Tetrahydrocannabinol (THC), an active compound contained in marijuana. Id.; Ex. D.
The Individual explained that on June 21, 2019, he reviewed his employer’s new substance abuse
policy, which stated that his employer would consider the medical history, biomedical information,
and medications of an employee in order to determine whether a positive drug test resulted from a
legitimate medical explanation. Id. at 2. He therefore thought that because he would be using CBD
oil for medical purposes with his doctor’s consent, the legitimate medical explanation policy
provision would apply to his situation, and a failed drug test would be positively adjudicated
through his employer. Id. Consequently, he started using CBD oil, and five days later he was
randomly selected for the drug test that precipitated this case. Id. Upon learning of his selection
for random testing, he notified his manager of his use of CBD and his interaction with his doctor,
the medical clinic, and personnel security. Id.
According to the positive drug test report, the Individual’s specimen tested positive for marijuana
metabolite, 11-COOH-THC or Delta-9-carboxy THC, in the amount of 22 ng/mL. Ex. 11 at 6; Ex.
19 at 3. According to the Individual’s LOI response, after he learned of his failed drug test, he
stopped taking the CBD oil. Ex. 8c at 2. He later learned that the above substance abuse policy
was not intended to apply to THC and that THC is prohibited regardless of its source. Id. The
record contains a declaration from the Unit Manager, who stated that he told the Individual several
times that a positive test result would be treated as a positive test under the workplace substance
abuse policy, and that the Individual acknowledged that he understood the risk. Id.
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The record also contains two expert reports.2 Both experts had the benefit of the Individual’s self-
reported use and an independent lab analysis of the CBD oil provided by the Individual, which
confirmed the CBD oil analyzed contains .159% THC.3 Both experts also confirmed that the
labeling of the CBD oil provided by the Individual did not disclose the presence of THC. Ex. 19
at 3. The first report was provided by the Individual’s expert, who holds degrees in molecular
biology and biomedical sciences and currently operates an applied science firm that designs and
evaluates cannabis products and provides marijuana industry-related consultation services. Ex. V1.
After reviewing the information provided by the Individual and reviewing the testing protocol, the
Individual’s expert “concluded with scientific certainty” that the Individual’s “consumption of
hemp extract containing 0.159% THC for an interval of four (4) days preceding a random
urinalysis test[,] . . . together with the use of a procedure unsuited for extraction of THC
metabolites in the presence of CBD metabolites, caused his test score to be 22 ng/mL of 11-COOH-
THC . . . .” Ex. V1 at 3.
The second report was provided by the DOE’s expert, who is retained as an expert in Forensic
Toxicology for a major metropolitan city and is also an associate director of Toxicology for the
occupational testing service of the company that produced the Individual’s original drug test
results. Ex. 20 at 2. The DOE’s expert reviewed the record, including the Individual’s expert’s
report. Ex. 19 at 1. The DOE’s expert concluded that “[i]t is possible that the tincture allegedly
ingested by [the Individual] several days prior to his urinalysis, reportedly containing 0.159%
Delta-9-THC, as reported by the [analyzing lab][,] could be responsible for the 22 ng/mL 11-
COOH-THC found in [the Individual’s] . . . urine.” Ex. 19 at 4. However, the DOE’s expert also
opined that “[i]t is also possible that the reported finding was a result of ingestion or exposure to
another Delta-9-THC containing substance, including ‘marijuana.’” Id. The DOE’s expert stated
that, based on the evidence in the record, “it is not possible to state with a reasonable degree of
scientific certainty whether the tincture ingested was the cause of the positive result or if it was
from some other Delta-9-THC containing product.” Id. at 6.
The record also contained three affidavits from character references for the Individual. All three
provided positive recommendations regarding his honesty and good character. Two affidavits
reference discussions with the Individual regarding his use of CBD oil. Ex. A1; Ex. A3. These
same character references also state that they have never observed the Individual use drugs or
appear under the influence of drugs. Id.
Finally, the record indicates that the Individual is on administrative leave without pay pending the
resolution of the present administrative hearing. Ex. D. The record also includes evidence that the
Individual passed two additional drug tests. One negative test occurred one month prior to the test
at issue in this case. Ex. D; see also Tr. at 32. The second negative test occurred the month after
the test at issue.4 Finally, the Individual confirmed in his response to the LOI that he did not
2 The parties stipulated to the admission of both expert reports without the need to call the respective experts to testify
at the hearing.
3 The record also contains the CBD oil manufacturer’s certificate of analysis, which states that the product contains
“less than 0.3% THC per hemp regulation.” Ex. L3.
4 The latter test was not included in the DOE’s twenty exhibits. However, it was submitted by the DOE much earlier
along with a number of other exhibits, some which were included in the twenty hearing exhibits. Thus, I am including
the test in the record and referencing it as the July 24, 2019, employer drug screen.
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consume any other marijuana or marijuana-derived product in the years prior to the positive drug
test or subsequent to the drug test. Ex. 8b.
At the hearing, the Individual provided the following testimony. On June 21, 2019, the Individual
read his employer’s Workforce Drug Abuse policy, which indicated that after a positive test,
employees would be given the opportunity to report over-the-counter medication in an attempt to
substantiate the legality of the product. Tr. at 25-26. He also confirmed that he was aware CBD oil
contained trace amounts of THC, which is why he began reaching out to his employer to obtain
more information regarding the risk of using CBD oil. Tr. at 22-24.
The Individual initially spoke with a nurse at the laboratory’s medical clinic, who suggested he
reach out to the site’s Medical Review Officer (MRO). Tr. at 21. The MRO directed the Individual
to the Unit Manager. Tr. at 21. The Individual testified that the Unit Manager “recommended that
if [he] chose to try the CBD oil, that [he] should definitely wait until June 21, 2019[,]” the expected
issue date of the new Workforce Drug Abuse Policy. Tr. at 23. The Individual had also previously
contacted his doctor and discussed his interest in using CBD oil to treat anxiety and joint pain
while avoiding side effects. Tr. at 24. His doctor stated it would be worth trying a reputable over-
the-counter product. Tr. at 24-25. Upon receiving his doctor’s approval, the Individual spoke with
his manager about CBD oil. Tr. at 25. He stated that his manager did not provide an opinion. Tr.
at 25.
The Individual took the CBD oil, at half the recommended dose, for five days, including the
morning before he took the drug test. Tr. at 30. His rationale for taking half the recommended dose
was to be conservative and thereby avoid any potential side effects, limit his exposure to THC,
and extend the life of the relatively expensive product. Tr. at 30. The Individual also testified that
he has since learned that “CBD oil was, in fact, not an acceptable reason for a failed drug test due
to TCH [sic].” Tr. at 28. Rather, he came to learn that there are “two very specific medications that
are prescriptions [which] are the only valid reasons for failed drug tests due to THC.” Tr. at 26.
He also testified that, if given the chance again, he would not use the CBD oil because of the
consequences he has suffered: the impact on his “good job” and his ability to support his family
(including two young children), and pay his mortgage. See Tr. at 27-28; 43. He stated his decision
is based on his understanding that “there are only two acceptable reasons to fail a drug test due to
THC.” Tr. at 43. Given his current understanding, he “would not have taken CBD because that
would have been a very imprudent risk on [his] part.” Tr. at 28.
Finally, he confirmed that he had not used any illegal substance within the month leading up to the
drug test that contained THC. Tr. at 32. He also testified that he had not used any illegal substance
since testing positive for THC. Tr. at 51. Moreover, he stated that he “would not use [CBD oil]
again.” Tr. at 43-44.
V. ANALYSIS
I have thoroughly considered the record of this proceeding, including the submissions tendered in
this case and the testimony of the Individual. 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.
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§ 710.7(c) and the Adjudicative Guidelines. After due deliberation, I have determined that the
Individual’s access authorization should be restored. I find that restoring the Individual’s security
clearance will not endanger the common defense and security, and that it 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.
As previously stated, the fact that the Individual tested positive for an illegal drug while holding a
security clearance establishes a security concern under Guideline H. The conditions that can
mitigate Guideline H concerns include a finding that “[t]he 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.” Adjudicative
Guidelines at ¶ 26(a).5
I find that the Individual has demonstrated that the circumstances surrounding his positive drug
test are unlikely to recur. As a foundational matter, I must first reference the Substance Abuse and
Mental Health Services Administration’s (SAMHSA) July 24, 2019, memorandum regarding the
use of CBD oils and hemp products. Ex. K2. That guidance memorandum cites to the 2018
Agricultural Improvement Act [Act] (2018 Farm Bill, PL 115-334), which removed hemp from
the definition of marijuana within the Controlled Substances Act. Id. It explains that “the delta-9-
eetrahydrocannabinol (THC) level in hemp-derived products must be no greater than 0.3 percent
on a dry weight basis in order to satisfy the revised definition of ‘hemp’ provided in the [Act].” Id.
In other words, hemp-derived products with THC levels at or less than 0.3 percent by dry weight
are not considered marijuana. The SAMHSA further takes the position that “there is no legitimate
medical explanation for a marijuana positive test result other than a verified prescription for
Marino, Sativex, or generic equivalent.” Id.
In this case, the only direct evidence for the cause of the positive drug test is the Individual’s self-
reported consumption of a CBD oil. The CBD oil has been laboratory tested, and it contains less
than 0.3 percent THC on a dry weight basis. In other words, there is significant evidence to
demonstrate the Individual consumed an unregulated hemp-derived product. Furthermore, two
experts concluded that the THC in the Individual’s system could have resulted from his reported
use of the analyzed CBD oil. One stated that it is a scientific certainty; the other stated that it is
possible.
Furthermore, the evidence demonstrates that the Individual attempted to understand the parameters
around the use of CBD oil. He spoke with his doctor about the likelihood of therapeutic relief from
the product, reviewed his employer’s policy, and spoke with several relevant parties, including
security personnel. He was certainly informed of the risk if he tested positive, but nevertheless
decided to take the risk based on his understanding that even if he tested positive for THC, he
would be able to provide his explanation for the positive test, and, presumably, escape any further
consequences. He later discovered that, at least in the first instance, he was mistaken.
As a consequence of his action, he has been on unpaid administrative leave for a significant period
of time, and he has been at risk of permanently losing his security clearance. The evidence shows
5 The Adjudicative Guidelines list several additional conditions that may mitigate Guideline H concerns, however the
above condition most closely matches the factual circumstances in this case.
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that, during the administrative process, the Individual has increased his understanding of the
several policies that govern the use of hemp-deprived and THC products, reflected on the impact
and potential consequences for his career and family, and come to the conclusion that he misjudged
the risk associated with using CBD oil. In doing so, he has demonstrated improved judgement.
There is no evidence that the Individual consumed an illegal drug or used marijuana or other
products containing THC prior to the short use which resulted in the positive random drug test. He
has gone to great length to prove that the CBD oil he consumed was what he believed it to be, an
unregulated hemp product, and that his reported consumption of it could have produced the
positive drug test result. He further testified that he had no intention of using any illegal product
going forward. Further still, he stated he would not have used the CBD oil if he had known what
he has learned during the administrative process. In other words, though he may be correct that his
consumption of CBD oil was not illegal, it was not worth the risk of testing positive for THC and
suffering the associated consequences. Finally, he does not intend to use any CBD oil or any other
products containing THC in the future. Based on the circumstances in this case, I conclude that the
Individual’s behavior that resulted in his positive drug test happened under such circumstances
that it is unlikely to recur and does not cast doubt on the Individual’s current good judgment. I
therefore conclude that the Individual has mitigated the Guideline H security concerns.
VI. CONCLUSION
Upon consideration of the entire record in this case, I find that there was evidence that raised
concerns regarding the Individual’s eligibility for a security clearance under Guideline H of the
Adjudicative Guidelines. I further find that the Individual has succeeded in resolving those
concerns, and I conclude that restoring the Individual’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). Accordingly, I have determined that the Individual’s access authorization should be
restored. Either party may seek review of this Decision by an Appeal Panel pursuant to 10 C.F.R.
§ 710.28.
James P. Thompson III
Administrative Judge
Office of Hearings and Appeals