PSH-20-0061

United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
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Filing Date: May 14, 2020 ) Case No.: PSH-20-0061
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Issued: August 10, 2020
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXX (hereinafter referred to as “the Individual”) to
hold an access authorization under the United States Department of Energy’s (DOE) regulations,
set forth at 10 C.F.R. Part 710, “Procedures for Determining Eligibility for Access to Classified
Matter and 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 access
authorization should not be restored.
I. BACKGROUND
A DOE contractor employs the Individual in a position that requires him to hold access
authorization. The Local Security Office (LSO) obtained derogatory information regarding the
Individual’s illegal use of a controlled substance. The LSO began the present administrative review
proceeding by issuing a Notification Letter to the Individual informing him that he was entitled to
a hearing before an Administrative Judge in order to resolve the substantial doubt regarding his
eligibility to hold a security clearance. See 10 C.F.R. § 710.21.
The Individual requested a hearing and the LSO forwarded the Individual’s request to the Office
of Hearings and Appeals (OHA). The Director of OHA appointed me as the Administrative Judge
in this matter. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e) and (g), the
Individual testified on his own behalf and presented the testimony of one witness along with six
exhibits, marked as Exhibits A through F (hereinafter cited as “Ex.”). See Transcript of Hearing,
Case No. PSH-20-0061 (hereinafter cited as “Tr.”). The DOE Counsel declined to present
witnesses but submitted ten exhibits, marked as Exs. 1-10.
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.
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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. That information pertains to Guideline H of the Adjudicative Guidelines. Ex. 4 at 4.
Under Guideline H (Drug Involvement and Substance Misuse), “illegal use of controlled
substances . . . can raise questions about an individual’s reliability and trustworthiness, both
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.”2 Adjudicative Guidelines at ¶ 24(b), (f). With respect to Guideline H, the LSO
cites that the Individual underwent a post-accident drug screen administered on January 24, 2020.
On January 30, 2020, the Medical Review Officer (MRO) determined the results were positive for
marijuana. Ex. 4 at 4. The LSO further cited that the Individual has held a security clearance since
March 22, 2001, and was found to have used an illegal drug while holding a sensitive position or
while being granted access to classified information. In light of these facts, the LSO’s invocation
of security concerns under Guideline H is justified.
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),
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
2 Marijuana falls within the Adjudicative Guidelines’ definition of controlled substance. Adjudicative Guidelines at
¶ 24.
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An Incident Report from the Individual’s employer dated March 12, 2020, stated that the
Individual underwent a post-accident drug test that was administered on January 24, 2020. Ex. 10
at 1. On January 30, 2020, the Medical Review Officer (MRO) determined that the Individual’s
drug test results were positive for marijuana, as evidenced in the MRO Report.3 Ex. 10 at 2. A
second sample was also tested. As reflected on the Medical Review Officer Report dated February
6, 2020, the second sample reconfirmed a positive test result for THC (i.e., one of the chemical
constituents of marijuana). Ex. 10 at 3.
At the hearing, the Individual did not dispute the allegations in the Notification Letter. He testified
that he has held a security clearance since February 2001, that he is subject to random drug testing
as required by his position as a DOE contractor employee, and that prior to his drug test in January
2020 has never had a positive drug test result. Tr. at 9–10. At the hearing, he testified that during
his employment with the DOE contractor, he has probably taken at least 20 random drug tests. Id.
at 17. He continued that he usually has a random drug test once a year, although sometimes it is
more frequent. Id. The Individual further testified that on January 24, 2020, he was involved in an
accident at his job site, and underwent a post-accident drug test on that same date. Id. at 10, 12.
Afterwards, he underwent a drug test. Id. at 12–13. While he did not dispute the allegations in the
SSC, he asserted at multiple times during the hearing that he has only used marijuana on one
occasion, the weekend before his January 24, 2020, drug test. Id. at 13–14. He testified, “The
weekend before I had tried some [marijuana] Sunday…That has been the only time I’ve tried it.”
Id. at 13. The DOE Counsel then asked him how often he used marijuana prior to his worksite
accident and positive drug test, and the Individual replied, “None. Never.” Id. at 14. The Individual
also denied any current use of marijuana and stated that the Sunday prior to his accident was his
only marijuana use. Id. at 13–15.
In response to questioning by the DOE Counsel and subsequently by the Administrative Judge,
the Individual provided additional details regarding his marijuana usage that produced a positive
drug test result. He testified that he was by himself on the date he used marijuana. Id. at 14. He
initially testified that he obtained the marijuana from “some buddies.” Id. Then, when the DOE
Counsel asked him if he associates with or has friends who use marijuana or other illegal
substances, he replied, “No.” Id. at 15. When the DOE Counsel asked him if the persons he
obtained the marijuana from were friends of his, he replied, “No. I hardly ever see them.” Id.
When the Administrative Judge asked the Individual to clarify whether he asked for the marijuana
or if he was offered the marijuana by his friends, he replied, “No, they kind of offered it. Because,
no, I didn’t ask for it. I didn’t request for it, but I just--just asked--I didn’t ask them for it, took it.
It was very minute, a little bit…It was rolled up like a cigarette.” Id. at 19. He also testified, “I
only smoked about half of it [marijuana cigarette], and threw the rest away.” Id. at 20. The
3 While unclear from the drug test report itself, federal government materials indicate that the Individual’s specimen
was likely a urine specimen. DOE Order 3792.3 (Drug-Free Federal Workplace Testing Implementation Program)
defines a collection site as “a place…for the purpose of providing urine specimens….” DOE Order 3792.3 § 4(b).
Also, the Substance Abuse and Mental Health Services Administration (SAMHSA) states, “At this time, urine is the
only specimen allowed for Federal agency workplace drug testing.” Substance Abuse and Mental Health Services
Administration Medical Review Officer (MRO) Manual for Federal Agency Workplace Drug Testing Programs
§ 3.1.2 (2018), http://samhsa.gov/sites/default/files/workplace/mro_guidance_manual_508_final_march_2018.pdf
(MRO Manual). The MRO Manual applies to federal agency drug testing programs subject to Executive Order 12564.
Id. at ii. DOE Order 3792.3 describes the actions taken to comply with Executive Order 12564. DOE Order 3792.3
§ 2(v).
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Individual admitted that “it was a very poor decision on my part. I just don’t believe in using it
[marijuana].” Id. at 15. Regarding his future intentions concerning marijuana use, he testified that
he intends not to use marijuana in the future, and intends not to use any other illegal substances in
the future. Id. at 16.
The Individual’s co-worker, who is also the Individual’s friend, testified that he met the Individual
approximately eight years prior at their place of employment and that he currently sees the
Individual once every week either at the workplace or at home. Id. at 25–26. In describing the
Individual’s work performance, he stated that the Individual is a trustworthy person, is very
conscientious at work, is respected by everyone, and has excellent job knowledge. Id. at 26, 29–
30. The Individual’s co-worker testified that he was aware that the Individual was involved in an
accident at his work site. Id. at 28–29. When asked if he was aware that the Individual’s post-
accident drug test showed that he had tested positive for marijuana, he testified that he was unaware
of that fact and he was surprised to learn of the positive drug test results. Id. at 29. When questioned
regarding his opinion concerning the Individual’s security clearance, the Individual’s co-worker
testified that he would “absolutely” recommend the Individual for a security clearance. Id. at 30.
Regarding his social interactions with the Individual, he testified that he spends time with the
Individual outside of work doing activities such as deer hunting and bicycle riding. Id. at 27. He
stated that he has no knowledge of the Individual’s use of marijuana or illegal substances. Id. at
28.
The Individual submitted a total of six written character statements from five colleagues including
the witness who testified at the hearing and two of his prior managers, as well as a character
statement from his sister. Ex. A–F. All of his character statements provided excellent references
and stated the Individual was trustworthy. Id.
V. ANALYSIS
The Individual’s post-accident drug test on January 24, 2020, which reflected that the Individual
tested positive for marijuana, raises security concerns under Guideline H. Adjudicative Guidelines
at § 25(b). An individual may mitigate security concerns under Guideline H if:
(a) 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;
(b) the individual acknowledges his or her drug involvement and substance misuse,
provides evidence of actions taken to overcome this problem, and has established a
pattern of abstinence, including, but not limited to:
(1) disassociation from drug-using associates and contacts;
(2) changing or avoiding the environment where drugs were used;
and
(3) providing a signed statement of intent to abstain from all drug
involvement and substance misuse, acknowledging that any future
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involvement or misuse is grounds for revocation of national security
eligibility;
(c) abuse of prescription drugs was after a severe or prolonged illness during which
these drugs were prescribed, and abuse has since ended; and
(d) satisfactory completion of a prescribed drug treatment program, including, but
not limited to, rehabilitation and aftercare requirements, without recurrence of
abuse, and a favorable prognosis by a duly qualified medical professional.
Adjudicative Guidelines at § 26(a)–(d).
The mitigating conditions described by Guideline H at § 26(a) are not present in this case. At the
hearing, the Individual claimed that he smoked half a marijuana cigarette on only one occasion,
the Sunday prior to his work accident. In addition, he asserted that he passed at least 20 prior drug
tests during his 20 years of employment. There is no corroborating evidence in the record
concerning the Individual’s frequency and/or duration of his marijuana use. The Individual’s
testimony appears to be an attempt to claim that his use was infrequent and minimal, or happened
under such circumstances that it is unlikely to recur. Adjudicative Guidelines at § 26(a).
I did not find the Individual’s testimony to be credible for a number of reasons. For example, the
Individual made inconsistent statements regarding how he obtained the marijuana. At one point
during the hearing, he claimed he got the marijuana from “some buddies,” but another time, he
claimed that he “hardly ever see[s] them.” I find the first claim, that people that the Individual
“hardly ever see[s]” would just give him marijuana, incredible. I also find it incredible that he
would ask someone he hardly ever sees for marijuana. It is more likely that the people that
provided the marijuana were “buddies,” but his waffling on the matter of who gave him the drug,
and how he got it, leads me to find that his testimony was improbable.
The Individual’s one character witness who testified at the hearing cannot corroborate his claimed
one-time marijuana use. In fact, the witness had no knowledge about why the Individual’s
clearance had been suspended. In addition, while the Individual’s written character statements
from his colleagues stated that the Individual was trustworthy, none of those written statements
addressed the Individual’s marijuana use. Thus, the written character statements cannot
corroborate the Individual’s claim of one-time marijuana use. In light of all of the evidence
discussed above, I am not convinced of the Individual’s assertion that his use of marijuana was
limited to only one occasion, nor am I convinced that his marijuana use happened under such
circumstances that it is unlikely to occur.
Further, none of the other mitigating conditions are applicable in this case. The mitigating
conditions described by Guideline H at § 26(b) do not present in this case. The Individual provided
no testimony stating that he has affirmatively disassociated from drug-using associates and
contacts. He also provided no testimony stating that he has affirmatively changed or avoided the
environment where drugs were used; in fact, he claimed that he was by himself on the date he used
marijuana, implying that he used the marijuana at home. Finally, the Individual did not submit any
evidence of a signed statement of intent to abstain from all drug involvement. The mitigation
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conditions set forth in Guideline H at § 26(c) and § 26(d) are also inapplicable in this case. The
Individual does not assert that he was prescribed marijuana for medicinal purposes. Therefore,
§ 26(c) does not apply. Moreover, Paragraph 26(d) does not apply because the Individual did not
complete a drug treatment program and no medical professional recommended that the Individual
needed to complete a drug treatment program. Accordingly, I conclude that the Individual has not
established that the mitigating conditions described in § 26(a) are present in this case.
VI. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Guideline H of the
Adjudicative Guidelines. After considering all of the evidence, both 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 Summary of Security Concerns.
Accordingly, the Individual has not demonstrated that restoring his security clearance would not
endanger the common defense and would be clearly consistent with the national interest.
Therefore, the Individual’s security clearance should not be restored. Either party may seek review
of this Decision by an Appeal Panel under the procedures set forth at 10 C.F.R. § 710.28.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals