PSH-22-0037

*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 22, 2021 ) Case No.: PSH-22-0037
)
__________________________________________)
Issued: March 28, 2022
____________________________
Administrative Judge Decision
____________________________
Phillip Harmonick, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX (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
The Individual is employed by a DOE contractor in a position that requires him to hold a security
clearance. On August 12, 2021, the Individual was selected for a random drug screening. The
results of the test were positive for marijuana metabolites. Ex. 11, Att. 1.
The local security office (LSO) issued the Individual a letter in which it notified him that it
possessed reliable information that created substantial doubt regarding his eligibility to hold a
security clearance. In a Summary of Security Concerns (SSC) attached to the letter, the LSO
explained that the derogatory information raised security concerns under Guideline H (Drug
Involvement and Substance Misuse) of the Adjudicative Guidelines. Ex. 2.
The Individual exercised his right to request an administrative review hearing pursuant to
10 C.F.R. Part 710. Ex. 6. The Director of the Office of Hearings and Appeals (OHA) appointed
me as the Administrative Judge in this matter, and I subsequently conducted an administrative
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 -
hearing. The LSO submitted eleven exhibits (Ex. 1–11). The Individual submitted three exhibits
(Ex. A–C). The Individual testified on his own behalf. Hearing Transcript (Tr.) at 6–7. The LSO
did not call any witnesses.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline H (Drug Involvement and Substance Misuse) as the basis for its
determination that the Individual was ineligible for access authorization. Ex. 2 at 2. “The 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. The SSC cited the results of the Individual’s
workplace drug screening which was positive for marijuana metabolites. Ex. 2 at 2. The LSO’s
allegations that the Individual engaged in substance misuse and tested positive for an illegal drug
justify the LSO’s invocation of Guideline H. Adjudicative Guidelines at ¶ 25(a)–(b).
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
Dep’t 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.
V. FINDINGS OF FACT
- 3 -
The Individual has held a DOE security clearance continuously since 2004. Tr. at 14. The
Individual was selected for a random workplace drug screening and tested positive for marijuana
metabolites in August 2021. Ex. 11, Att. 1. The Individual denied having ever used illegal drugs
and attributed the results of the August 2021 drug test to a topical lotion containing hemp that he
used for pain. Tr. at 7–8.
According to the Individual, his daughter provided him with a lotion which she recommended he
use for pain caused by his exercise regimen. Id. at 17–19. The Individual testified to having used
the lotion on a near daily basis for at least a week before he read the ingredients on the bottle and
learned that the lotion contained hemp.2 Id. at 19, 23. The Individual represented that he last used
the lotion two or three days prior to the drug screening. Id. at 19. The Individual denied recollection
of the name of the lotion. Id. at 18–19. Because the lotion contained hemp, the Individual believed
that “it could have had THC (tetrahydrocannabinol) in [it].”3 Id. at 25. There is no evidence in the
record establishing that the topical application of a lotion containing hemp could have caused the
Individual’s positive drug test.4
The Individual testified that he “would never put himself in a position like [this] again.” Id. at 21.
He also identified consequences he had experienced due to the positive drug test, including that
his employer suspended him from work for ten days without pay and required him to take a
marijuana awareness class. Id. at 8; see also Ex. B (reflecting the Individual’s completion of a
four-hour marijuana awareness class). The Individual was drug tested monthly following his
positive drug test in August 2021, and each test was negative for traces of controlled substances.
Tr. at 8; see also Ex. C (showing that the Individual provided samples for monthly drug screenings
from September 2021 through January 2022, each of which was negative for traces of controlled
substances).
The Individual denied ever having illegally used a controlled substance, including marijuana. Tr.
at 16. A co-worker of the Individual, who is his personal friend outside of work, authored a letter
in which he indicated that the Individual was an excellent employee, a positive member of the
community, and had never displayed signs of using illegal drugs. Ex. A. The Individual testified
that he intended to never use illegal drugs in the future. Tr. at 21.
VI. ANALYSIS
2 DOE has issued guidance cautioning personnel against the use of hemp and CBD products. DEPARTMENT OF
ENERGY, FREQUENTLY ASKED QUESTIONS ON CANNABIDIOL (CBD), MARIJUANA AND HEMP (2019), available at
https://hcnet.doe.gov/documents/faqs-cbd-marijuana-and-hemp (last visited Feb. 18, 2022). The Individual testified
that he is unaware of this guidance. Tr. at 25.
3 THC is a chemical compound in marijuana that is responsible for the drug’s intoxicating effects. NATIONAL
INSTITUTES OF HEALTH, WHAT IS MARIJUANA? (2020), available at https://nida.nih.gov/publications/research-reports
/marijuana/what-marijuana (last visited Mar. 28, 2022).
4 To the contrary, one study found that application of commercially available topical salves containing as much as
102ng/mg of THC every two to four hours for three days did not produce positive blood or urine tests for THC. C.
Hess, M. Krämer, & B. Madea, Topical application of THC containing products is not able to cause positive
cannabinoid finding in blood or urine, 272 FORENSIC SCI. INT’L 68–71 (2017), available at https://pubmed.ncbi.nlm.
nih.gov/28122323/#:~:text=blood%20or%20urine-,Topical%20application%20of%20THC%20containing%20prod
ucts%20is%20not%20able%20to,finding%20in%20blood%20or%20urine (last visited Mar. 28, 2022).
- 4 -
A. Guideline H
The Individual’s positive drug test justifies the LSO’s invocation of Guideline H. Adjudicative
Guidelines at ¶ 25(a)–(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 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.
Id. at ¶ 26(a)–(d).
The Individual denied that he has ever intentionally used illegal drugs and attributed his positive
drug test to THC in a hemp lotion he used for pain relief. This explanation potentially implicates
the first mitigating condition under Guideline H. The remaining mitigating conditions are not
applicable to this case because the Individual denied that he intentionally used illegal drugs, the
LSO has not asserted that the Individual abused prescription drugs, and the Individual has not
completed a drug treatment program or received a favorable prognosis from a medical
professional. Id. at ¶ 26(b)–(d).
I find the first mitigating condition under Guideline H inapplicable because the Individual’s
explanation for his positive drug test is improbable and not supported by evidence. OHA has
resolved security concerns associated with an individual’s positive test for marijuana metabolites
under this mitigating condition where the individual identified a specific CBD oil product that he
consumed, obtained a laboratory test quantifying the THC content in the CBD oil, and produced
the opinion of an expert molecular biologist who confirmed that consuming the CBD oil could
have caused the positive drug test. Personnel Security Hearing, OHA Case No. PSH-20-0020 at
4–5 (2020).5 Unlike that case, the Individual has not identified the specific product that he used or
proved that it contained marijuana metabolites. Furthermore, unlike edible cannabis products,
there is no evidence that it is chemically possible for marijuana metabolites to have entered the
Individual’s blood or urine through a topical lotion and produced the Individual’s positive drug
test. Absent stronger evidence that events transpired as the Individual claims, and that he did not
actually use marijuana, I cannot find that the positive drug test occurred because of an accident
5 Decisions issued by OHA are available on the OHA website located at http://www.energy.gov/OHA.
- 5 -
which is unlikely to recur. Although the Individual established through drug testing that he had
not used illegal drugs for five months, this period is not sufficient to show that the conduct is
unlikely to recur. Thus, the Individual has not carried his burden to establish the applicability of
the first mitigating condition under Guideline H. Adjudicative Guidelines at ¶ 26(a).
Under the Part 710 regulations, “[a]ny doubt as to an individual’s access authorization eligibility
shall be resolved in favor of the national security.” 10 C.F.R. § 710.7(a). It is admittedly unusual
that the Individual tested positive for marijuana metabolites for the first time after having worked
for over fifteen years at a DOE site without a positive drug test. The Individual also vehemently
testified that he is not a drug user and provided a letter from a co-worker as to his good character.
On the other hand, crediting the Individual’s claim that he received a hemp lotion, which he cannot
now identify, from his daughter a mere two weeks before the random drug test would require me
to accept an improbable coincidence. Additionally, as noted above, I lack sufficient evidence to
conclude that it is possible for a topical lotion containing marijuana metabolites to have caused the
Individual’s positive drug test. Accordingly, it is at least as likely that the Individual used
marijuana and was dishonest about having done so both to the LSO and in the hearing as it is that
a hemp lotion was responsible for the positive drug test. Confronted with such a situation, I must
resolve my doubts in favor of national security and conclude that the Individual has not resolved
the security concerns asserted by the LSO under Guideline H.
VII. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
DOE to raise security concerns under Guideline H of the Adjudicative Guidelines. 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 Summary of Security Concerns. Accordingly, I have determined that the
Individual’s access authorization should not be restored. Either party may seek review of this
Decision by an Appeal Panel pursuant to 10 C.F.R. § 710.28.
Phillip Harmonick
Administrative Judge
Office of Hearings and Appeals