PSH-21-0086

*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: July 21, 2021 ) Case No.: PSH-21-0086
)
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Issued: January 4, 2022
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Administrative Judge Decision
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Kristin L. Martin, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXXX (hereinafter referred to as “the
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 For the reasons set forth below, I conclude that the
Individual’s security clearance should be granted.
I. BACKGROUND
The Individual is employed by a DOE Contractor in a position which requires that he hold a security
clearance. The Local Security Office (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.
At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e) and (g), the Individual testified
on his own behalf. See Transcript of Hearing (hereinafter cited as “Tr.”). The LSO submitted six
exhibits, marked as Exhibits 1 through 6 (hereinafter cited as “Ex.”). The Individual submitted 10
exhibits, marked as Exhibits A through J.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY
CONCERNS
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.
2
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 E of the National Security Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive
Position, effective June 8, 2017 (Adjudicative Guidelines). These guidelines are not inflexible rules
of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in
conjunction with the factors listed in the adjudicative process.
Guideline E (Personal Conduct) relates to conduct involving questionable judgment, lack of
candor, or unwillingness to comply with rules and regulations, which raises questions about an
individual’s reliability, trustworthiness and ability to protect classified information. Any failure to
provide truthful and candid answers during the security clearance process is of particular concern.
See Adjudicative Guidelines ¶ 15. The LSO alleges that the Individual admitted that his spouse
smokes marijuana in his presence two to three times per year, that the Individual had accompanied
his spouse to a dispensary to purchase marijuana, and that the Individual contributes $50 per year
toward his wife’s marijuana purchases annually. Accordingly, the LSO’s security concerns under
Guideline E are 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 entire process
is a conscientious scrutiny of a number of variables known as the “whole person concept.”
Adjudicative Guidelines ¶ 2(a). The protection of the national security is the paramount
consideration. 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.
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
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The Individual lives in a state in which the purchase and use of marijuana for recreational purposes
has been legalized. Ex. A. At the time of his wife’s marijuana purchase and use, the Individual and
his wife believed that her activities were legal.2 Ex. E at 3. The Individual submitted written
testimony stating that his financial involvement with his wife’s marijuana use was her use of about
$50 per year from a joint checking account to which he was the primary contributor. Ex. E at 4.
The Individual stated that he had never purchased marijuana for his wife and that she had only
purchased marijuana at dispensaries. Id.
At the hearing, the Individual testified that, to his knowledge, the dispensary from which his wife’s
marijuana was purchased was licensed by the state. Tr. at 11–12. The Individual self-reported the
situation and did not attempt to hide his involvement. Id. at 13–14; Ex. E at 2. After learning that
her marijuana use affected the Individual’s career, the Individual’s wife stopped using completely
and committed to abstaining indefinitely. Tr. at 13, 15. The Individual testified that he does not use
marijuana and does not intend to use it in the future. Id. at 14. Neither he nor his spouse has
purchased marijuana since receiving the Notification Letter and he testified that they do not intend
to do so in the future. Id. at 14–15. In support of his testimony, the Individual submitted the results
of drug tests he and his wife had taken; both tests produced negative results. Ex. B; Ex. C.
The Individual testified that he understood the concerns of the government regarding his proximity
to use of a controlled substance. Tr. at 16. He knew that if someone attempted to blackmail him,
he needed report the attempt to DOE and testified that he would do so. Id. at 17. He also stated that
he has a plan to seek advice and clarification in the event that he is unsure about how to comply
with any rule or law in the future. Id. at 19. The Individual committed to following all rules in the
future. and stated that he takes the responsibilities of holding a security clearance seriously. Id.;
Ex. E at 5.
V. ANALYSIS
A person who seeks access to classified information enters into a fiduciary relationship with the
government predicated upon trust and confidence. This relationship transcends normal duty hours
and endures throughout off-duty hours. The government places a high degree of trust and
confidence in individuals to whom it grants access authorization. Decisions include, by necessity,
consideration of the possible risk that the applicant may deliberately or inadvertently fail to protect
or safeguard classified information. Such decisions entail a certain degree of legally permissible
extrapolation as to potential, rather than actual, risk of compromise of classified information.
The issue before me is whether the Individual, at the time of the hearing, presents an unacceptable
risk to national security and the common defense. I must consider all the evidence, both favorable
and unfavorable, in a commonsense manner. “Any doubt concerning personnel being considered
for access for national security eligibility will be resolved in favor of the national security.”
Adjudicative Guidelines ¶ 2(b). In reaching this decision, I have drawn only those conclusions that
are reasonable, logical, and based on the evidence contained in the record. Because of the strong
presumption against granting or restoring security clearances, I must deny access authorization if I
2 The Individual submitted a guidance on his state’s marijuana legalization policy issued by the state’s court system.
Ex. A. The guidance makes no mention of federal law or policy prohibiting marijuana purchase, possession, or use.
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am not convinced that the LSO’s security concerns have been mitigated such that granting the
Individual’s clearance is not an unacceptable risk to national security.
Guideline E provides that the following conditions (in relevant part) may mitigate Personal
Conduct security concerns: (1) the individual made prompt, good-faith efforts to correct the
omission, concealment, or falsification before being confronted with the facts; (2) 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; (3) the individual has acknowledged the behavior
and obtained counseling to change the behavior or taken other positive steps to alleviate the
stressors, circumstances, or factors that contributed to untrustworthy, unreliable, or other
inappropriate behavior, and such behavior is unlikely to recur; and (4) association with persons
involved in criminal activities was unwitting, has ceased, or occurs under circumstances that do
not cast doubt upon the individual's reliability, trustworthiness, judgment, or willingness to comply
with rules and regulations. Adjudicative Guidelines at ¶ 17(a), (c), (d), (g).
Mitigating factors (2), (3), and (4) are applicable in this case. The Individual’s wife purchased and
used small amounts marijuana on rare occasions, and did so under the impression that such use was
completely legal. The Individual also believed at the time that these activities were legal. This
indicates that the Individual did not demonstrate an unwillingness to comply with rules and,
therefore, these minor, infrequent offenses do not cast doubt on his judgment, reliability, or
trustworthiness. Moreover, upon learning that marijuana remains illegal under federal law, the
Individual and his wife immediately changed their behavior toward the drug and have committed
to abstinence and staying away from others’ use. Finally, the Individual’s association with criminal
activity was unwitting in that he was unaware that state legalization did not change the criminality
of marijuana under federal law. His association with such activities has ceased and he has
committed to avoiding such association in the future. He has a plan for addressing this issue as it
may arise in his personal life and for ensuring his compliance with rules and laws in the future.
For the foregoing reasons, I find that the Individual has mitigated the Guideline E 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 E of the
Adjudicative Guidelines. I further find that the Individual has succeeded in fully resolving those
concerns. Therefore, I conclude that granting DOE access authorization to the Individual “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 find that the DOE should grant access authorization to the
Individual at this time.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth at
10 C.F.R. § 710.28.
Kristin L. Martin
Administrative Judge
Office of Hearings and Appeals