PSH-21-0124

*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: September 29, 2021 ) Case No.: PSH-21-0124
)
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Issued: December 28, 2021
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Administrative Judge Decision
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Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXX (hereinafter referred to as “the
Individual”) to hold an access authorization under the Department of Energy’s (DOE) regulations
set forth at 10 C.F.R. Part 710, Subpart A, entitled “General Procedures for Determining Eligibility
for Access to Classified Matter of 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 be restored.
I. Background
On April 26, 2021, the Individual self-reported that he had unintentionally ingested a cookie
containing Tetrahydrocannabinol (THC), the main psychoactive chemical in marijuana. Ex. 6 at
3. The Individual’s employer administered a drug test to him on that date, and on May 4, 2021, the
Individual’s April 26th positive test sample was confirmed as positive for a marijuana metabolite.
Ex. 4 at 1-2.
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 to
resolve the substantial doubt regarding his eligibility to hold a security clearance. See 10 C.F.R.
1 Access to authorization is defined as “an administrative determination that an individual is eligible for access to
classified mater 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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§ 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 seven other witnesses, along
with seven exhibits marked as Exhibits A through G (hereinafter cited as “Ex.”). See Transcript of
Hearing, Case No. PSH-21-0124 (hereinafter cited as “Tr.”). The DOE submitted seven exhibits
marked as Exhibit 1 through 7.
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 substantial doubt concerning his eligibility for a security clearance.
That information pertains to Guideline H 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). The LSO further cites the Bond
Amendment, codified at 50 U.S.C. § 3343, in support of its conclusion that the Individual is
ineligible for a security clearance.
Under Guideline H (Drug Involvement), “[t]he illegal use of controlled substances, to include the
misuse of prescription and 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
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. Under Guideline H, the LSO alleged that, while in possession of a DOE security
clearance, the Individual tested positive for an marijuana metabolite on April 26, 2021. Ex. 1 at 1.
I find that the LSO’s concerns under Guideline H are justified.
As stated above, the Notification Letter also cites the Bond Amendment. The Bond Amendment
states, in pertinent part, that an agency may refuse to grant or renew a security clearance for an
individual “who is an unlawful user of a controlled substance or an addict.” 50 U.S.C. § 3343(b).
The LSO made the same allegation, stating that the Individual tested positive for the marijuana
metabolite on April 26, 2021. Ex. 1 at 1. I find that the LSO’s concerns under the Bond Amendment
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
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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 eligibility for an access authorization. The Part
710 regulations are drafted 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. Hearing Testimony
The Individual testified that on the day of the incident, his partner’s child was called to visit the
home of her maternal aunt (his partner’s sister) so that she could give the Individual’s family food
items she no longer wanted. Tr. at 16-17. The food that was given to the child included a gift bag
containing cookies. Tr. at 17. After receiving the bag of cookies, the child distributed the cookies
among her household members, including the Individual. Tr. at 17. The same day, his partner’s
sister called the Individual’s partner to inform her not to eat the cookies she had previously given
the family, at which point the Individual discovered the cookies contained THC. Tr. at 17-18. Out
of concern for the minor children who had ingested the cookies, his partner’s sister came to the
Individual’s home to monitor the family. Tr. at 18. The Individual denied feeling any effects from
the psychoactive THC that night. Tr. at 18.
The next morning, the Individual reported to his duty station and reported the incident to his
supervisor and Occupational Medicine, an act that the Individual believes demonstrates his
trustworthiness and reliability, at which point he was evaluated by a doctor and subsequently
cleared to return to work without any restrictions. Tr. at 18-19, 33.2 The Individual was promptly
drug tested, and after testing positive for THC, he was escorted off the premises and his access to
the site was restricted. Tr. at 19.3 The Individual stated that his clearance was restored on April 27,
2021, after an investigation was conducted into the matter. Tr. at 20.4 In early May 2021, tests
2 An April 26, 2021, duty disposition letter electronically signed by the examining doctor indicates the Individual may
return to work without any restrictions. Ex. C.
3 Although subject to random drug testing by the terms of his employment, the Individual had not been drug tested in
approximately two years prior to the incident. Tr. at 31.
4 An April 27, 2021, email indicates that the Individual’s access to the laboratory had been restored. Ex. E.
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confirming the presence of the THC were returned, and the Individual received a suspension
briefing later that month. Tr. at 20.5 The Individual denied any illicit drug use or the use of illicit
substances by anyone in his household, and although he knew the maternal aunt’s husband
possessed a medical marijuana card, he denied any knowledge of whether the maternal aunt or her
husband had been using illicit substances. Tr. at 21-22, 24, 29-30.6 The Individual also denied
having any knowledge that there was THC in the cookies prior to being told as much. Tr. at 28,
38. Now, as a precaution, he refuses to consume anything if he is unable to verify its origins and
will discard any confections he receives as a gift. Tr. at 35, 38.
The Individual’s partner began her testimony by stating that she had never known or suspected the
Individual to use any illicit substances, after which she went on to confirm the Individual’s version
of events, stating that her sister provided them with cookies wrapped in a gift bag and told them
not to eat the cookies after they had all consumed some. Tr. at 43-45, 48.7 Although it was common
for her to retrieve food from her sister’s home, such an incident had never occurred before, and
further, she had never known her sister or her sister’s husband to use THC. Tr. at 50-52. She also
confirmed the fact that the Individual not only desired to report the incident, but that he did report
the incident the next day, an act which reflected on his good judgment and reliability. Tr. at 45,
56-57. She has discussed the incident with her sister and her husband to avoid any such event
taking place again. Tr. at 53-55.
The Individual’s supervisor denied suspecting any drug use on behalf of the Individual or being
given any reason to suspect drug use. Further, the Individual’s supervisor testimony was consistent
with the version of events recounted by the Individual in his testimony. Tr. at 67-68, 70. The
Individual’s supervisor asserted that prior to the pandemic, random drug tests were performed with
regularity, but since the pandemic, “it was very well known that there was no drug screening
happening[.]” Tr. at 68.8 Accordingly, his supervisor believes that the Individual’s motivation for
5 A May 25, 2021, email from the Individual’s supervisor regarding the status of the Individual’s clearance asks that
the Individual’s card access to the premises not be disabled so that the Individual can continue “work on uncleared
projects.” Ex. Ex. F at 1.
6 The maternal aunt’s husband, who suffers from back pain and obtained a medical marijuana card from his doctor,
testified that it is “very rare” that he ingests any marijuana himself, and that he intended to discard the cookies. Tr. at
124-25, 133. The Individual’s partner did not learn that her brother-in-law possessed such a card until after she
consumed one of the cookies. Tr. at 52.
7 The Individual’s partner’s supervisor also testified, stating that he has never suspected or known the Individual’s
partner to use illicit substances. Tr. at 92-93.
8 The Contractor’s personnel security employee confirmed in her testimony that random drug testing “was being
conducted on a much smaller scale.” Tr. at 98, 104. She stated the Individual was given a reasonable suspicion test
and underwent a medical examination because of reporting that he had accidentally ingested an illicit substance. Tr.
at 97-98. Although the Individual notified his supervisor that he had accidentally ingested THC, the incident had not
been reported to “clearance possessing[.]” Tr. at 102. The employee stated that they should have informed the
Individual of his mistake so that he could correct the matter, as there was no indication that the Individual was seeking
to conceal the incident. Tr. at 102. Accordingly, the same employee wrote an August 25, 2021, memorandum to the
DOE, stating that the Individual had reported an incident for which he was drug tested. Ex. B. The test came back as
a presumptive positive for THC, after which they were able to corroborate the Individual’s version of events, allowing
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self-reporting was the desire to be transparent, and not the fear of a random drug test. He stated his
belief that this reflects positively on the Individual’s judgment. Tr. at 68, 70-72. A second
supervisor, who sees the Individual approximately once a week, described the Individual as
trustworthy, reliable, and honest, and stated that he was impressed with the Individual’s leadership
skills. Tr. at 76-77, 82. He also stated that he had no reason to believe that the Individual used
drugs. Tr. at 78-79. The second supervisor confirmed that the Individual reported the incident to
him on April 26, 2021, and that the Individual had no reason to believe he would be drug tested
that day. Tr. at 80-81, 84. He feels the fact that the Individual reported “speaks a lot to his ethics,
his honesty, reliability.” Tr. at 86. He expressed surprise that the Individual’s access authorization
was suspended and believes the incident unfolded as the Individual recounted it. Tr. at 86-87.
The maternal aunt testified that she had been cleaning her husband’s office when she discovered a
bag of cookies that appeared to have been a birthday gift. Tr. at 110-11. She took the cookies home,
as her husband was going to be absent for some time, and she had no reason to believe the cookies
contained THC. Tr. at 111. She called her niece to retrieve the cookies as well as other food items
she wanted removed from her home. Tr. at 112. Later in the evening, while she was scolding her
husband for keeping cookies in his office, he informed her that the cookies contained THC, at
which point she immediately contacted her sister. Tr. at 113. When she was told the family had
already ingested the cookies, she left her home to aid her sister and her family. Tr. at 113-14.
Although her husband has a medical marijuana card, she has never used such substances, and
although she has frequently been gifted baked goods, she has not known any of them to contain
THC. Tr. at 117-19. Her husband testified that he not only knows the Individual as his sister-in-
law’s partner, but he also spends time with the Individual in the context of his business. Tr. at 129-
30. He testified that, although he infrequently consumes THC, he knew the cookies contained THC
when they were gifted to him, so he placed them in his office desk, to which only he and his wife
had access. Tr. 130-31, 133-34. He learned his wife had given the cookies to their niece later that
day, at which point he immediately told her the cookies contained THC. Tr. at 132. He has never
known the Individual to consume any illegal substances. Tr. at 132. He stated that does not
consume THC in front of anyone, including his wife. Tr. at 133-34.
V. Analysis
As the Guideline H and Bond Amendment concerns arose from the same concern, I will analyze
them together. As stated above, the Bond Amendment disqualifies an individual from holding a
security clearance if the Individual “is an unlawful user of a controlled substance or an addict.” 50
U.S.C. § 3343(b). However, it also provides for a waiver from disqualification. 50 U.S.C.
§ 3343(c)(2)(B). This section provides that "[i]n a meritorious case, an exception to the
disqualification...may be authorized if there are mitigating factors" authorized in accordance with
the Adjudicative Guidelines. Id. Additionally, among other mitigating factors, an Individual may
mitigate concerns under Guideline H if “[t]he behavior happened so long ago, was so infrequent,
the Individual to return to work without any restrictions. Ex. B. Accordingly, although the drug test came back positive
for THC in May 2021, the Individual remained employed, as it was an accidental ingestion. Ex. B.
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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). I find that this mitigating factor is present in the instant case.
Based on the credible testimony provided by all parties involved, the evidence bears out the fact
that this incident of accidental ingestion of THC happened under such circumstances that it is
unlikely to recur. As an initial matter, the THC was delivered to him in an inconspicuous cookie
from an individual he did not know to consume any illicit substances, and accordingly, he had no
reason to believe the cookie contained any psychoactive ingredients such as THC. It was also not
unheard of for the maternal aunt to provide his family with various food items she did not want in
her home from time to time. Although this incident was clearly an accidental ingestion, the
Individual’s testimony evidenced his understanding that such an incident should not be repeated;
he stated that, henceforth, he will not consume any food items if he is unable to verify their origin
and will discard these items if they are gifted to him. Once the Individual learned that he had
ingested THC baked into the cookie that he consumed, he reported the incident to his supervisor,
despite the unlikelihood that he was going to be chosen to submit to a random drug test. This act
does, in fact, show that the Individual exhibits good judgement, reliability, and trustworthiness, a
sentiment echoed by witness testimony.
Accordingly, I find that the Individual has mitigated the Guideline H security concerns, and I
additionally find that his disqualification from holding a security clearance pursuant to
the Bond Amendment is eligible for a waiver. 50 U.S.C. § 3343(c)(2)(B).
VI. Conclusion
For the reasons set forth above, I conclude that the LSO properly invoked Guideline H as well as
the Bond Amendment. After considering all the evidence, both favorable and unfavorable, in a
commonsense manner, I find that the Individual has mitigated the security concerns raised under
Guideline H and that waiver of the Bond Amendment is appropriate in this case. Accordingly, the
Individual has 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 be restored. The parties may seek review of this Decision by an Appeal
Panel under the procedures set forth at 10 C.F.R. § 710.28.
Steven L. Fine
Administrative Judge
Office of Hearings and Appeals