PSH-22-0084

*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: May 19, 2022 ) Case No.: PSH-22-0084
)
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Issued: October 3, 2022
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Administrative Judge Decision
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Phillip Harmonick, Administrative Judge:
This Decision concerns the eligibility of XXXXX XXXXX (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 and was first granted access authorization in
approximately 2008. Hearing Transcript (Tr.) at 54–55. On November 8, 2021, the Individual was
selected for a random drug test, the results of which were positive for marijuana metabolite. Exhibit
(Ex.) 5 at 1, 8.2 When notified of the results of the drug test, the Individual denied having used
marijuana and noted that he used cannabidiol (CBD) oil for lower back pain. Id. at 7. The
Individual requested a retest of the sample he provided, the results of which reconfirmed that the
sample was positive for marijuana metabolite. Id. at 2–7.
The local security office (LSO) suspended the Individual’s access authorization and issued him a
letter notifying him that it possessed reliable information that created substantial doubt regarding
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 The pagination of numerous exhibits submitted by the local security office does not correspond to the order in which
the pages appear. This Decision cites to pages in the order in which they appear without regard for their internal
pagination.
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his eligibility for access authorization. See Ex. 3 (summarizing the LSO’s review of the
Individual’s eligibility for access authorization). In a Summary of Security Concerns (SSC)
attached to the letter, the LSO explained that the derogatory information raised security concerns
under 50 U.S.C. § 3343(b) (Bond Amendment) and Guideline H (Drug Involvement and Substance
Misuse) of the Adjudicative Guidelines. Ex. 1.
The Individual exercised his right to request an administrative review hearing pursuant to
10 C.F.R. Part 710. Ex. 2. 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
hearing. The LSO submitted six exhibits (Ex. 1–6). The Individual submitted one exhibit (Ex. A).3
The Individual testified on his own behalf. Tr. at 3, 10. The LSO did not call any witnesses to
testify.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited the Bond Amendment as the first basis for its determination that the Individual was
ineligible for access authorization. Ex. 1. Pursuant to the Bond Amendment, “a Federal agency
may not grant or renew a security clearance for a [] person who is an unlawful user of a controlled
substance or an addict.” 50 U.S.C. § 3343(b). According to DOE policy, “[a]n unlawful user of a
controlled substance is any person who uses a controlled substance and has lost the power of self-
control with reference to the use of the controlled substance or who is a current user of the
controlled substance in a manner other than as prescribed by a licensed physician. Such use is not
limited to the use of drugs on a particular day, or within a matter of days or weeks before, but
rather that the unlawful use occurred recently enough to indicate the individual is actively engaged
in such conduct.” Memorandum from David M. Turk, Deputy Sec’y. of Energy, to Kathleen
Hogan, Acting Under Sec’y. for Sci. & Energy, et al., Revision of DOE Policy Regarding
Application of the Bond Amendment at 6 (April 23, 2021). Tetrahydrocannabinols (THC) are
controlled substances.4 21 U.S.C. § 812. The SSC cited the results of the Individual’s random drug
test, which was positive for marijuana metabolites. Ex. 1. The LSO’s allegation that the Individual
is a user of a controlled substance based on the results of the random drug test justify its invocation
of the Bond Amendment. 50 U.S.C. § 3343(b).
The LSO cited Guideline H (Drug Involvement and Substance Misuse) as the other basis for its
determination that the Individual was ineligible for access authorization. Ex. 1. “The 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. The SSC cited the results of the Individual’s random drug test,
which was positive for marijuana metabolites. Ex. 1. The LSO’s allegations that the Individual
3 The Individual marked each page of his submission as a separate exhibit. For ease of reference, the parties agreed
that the Individual’s entire submission should be designated Exhibit A. Tr. at 6–7.
4 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 Sep. 6, 2022).
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tested positive for marijuana metabolite while holding a DOE Q clearance justify its invocation of
Guideline H. Adjudicative Guidelines at ¶ 25(b), (f).
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).
An 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). An 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
The Individual was first granted access authorization in approximately 2008. Tr. at 54–55; see also
Ex. 6 at 51–52 (reflecting that the Individual was investigated for and granted access authorization
in 2013). Since being granted access authorization the Individual underwent annual training
concerning his obligations as a clearance holder. Tr. at 55. The Individual understood from this
training that he was prohibited from using illegal drugs, including THC. Id.
The Individual experienced several back injuries, most recently in August 2021, which caused him
to suffer from chronic back pain. Id. at 13–16, 41–42; Ex. A at 4. The Individual was prescribed
opioid pain medications after the August 2021 injury. Tr. at 15–16, 43. The Individual’s pain
caused him to change his role with the DOE contractor to a less physically demanding one and
receive temporary disability while out of work for several months. Id. at 14–15; Ex. A at 3. While
out of work on temporary disability, the Individual began researching alternative pain management
regimens due to fear of addiction to opioids. Tr. at 16–17. The Individual’s chiropractor introduced
him to CBD products, but the Individual decided not to purchase them from the chiropractor due
to their high costs. Id.
The Individual conducted personal research which led him to conclude that combinations of CBD
and THC were more effective for pain management than CBD alone. Id. at 18, 61–62; see also Ex.
A at 10 (reflecting an example of the research that led the Individual to conclude that a combination
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of CBD and THC would be effective for managing pain). The Individual’s wife suggested that he
use a transdermal compound containing THC which she used for her own pain management. Tr.
at 18–19; Ex. A at 11 (picturing the product, including a label indicating that the product “contains
cannabis, a Schedule I Controlled Substance”). Despite having reviewed the label at the time that
he first began using the transdermal compound, the Individual used the product for several
months.5 Tr. at 56, 58. The Individual also used vape pens containing various ratios of CBD to
THC, ranging from 20:1 to 1:1, three to four times daily. Id. at 19, 35–36; Ex. A at 13.6 The
Individual also used a tincture containing CBD, THC, or both, provided by his wife which he
discontinued after one or two uses because it was ineffective in managing his pain. Tr. at 33–34.
The Individual believed that using these products would not produce a positive drug test if he was
tested. Id. at 19, 22, 62–63.
On November 8, 2021, the Individual was selected for a random drug test. Ex. 5 at 1, 8. The results
of the drug test were positive for marijuana metabolite. Id. at 8. When he was notified of the results
of the drug test, the Individual denied that he had used marijuana but noted that he used CBD oil
for lower back pain. Id. at 7. At the Individual’s request, the sample he provided for the drug test
was retested and the presence of marijuana metabolite in the sample was confirmed. Id. at 2–7.
After receiving the second positive test result, the Individual conducted additional research which
led him to conclude that the THC products he had used caused him to test positive on the drug test.
Tr. at 20. The Individual also consulted with a therapist through the DOE contractor’s employee
assistance program who, after one meeting with the Individual, determined that he did not require
therapy for drug addiction or misuse.7 Id. at 11–13; Ex. A at 1–2. The Individual testified at the
hearing that he would not use CBD or THC products in the future to manage his pain.8 Tr. at 23.
However, he still maintains at least one THC product in his house which he indicated his wife
might use in the future. Id. at 56–57. The Individual testified that he is a highly experienced and
competent employee, and that reinstating his access authorization is in the interests of national
security in light of his reliability and trustworthiness in the workplace. Id. at 24–26.
V. ANALYSIS
5 The Individual testified that he “didn’t think [he] was going to have an issue” with the transdermal compound causing
him to test positive for THC, despite the label indicating that the product contained “cannabis, a Schedule I Controlled
Substance,” because “it didn’t scream like [sic] weed all over it” and “CBD oil does come from the cannabis plant.”
Tr. at 58–59. I find the Individual’s professed beliefs unreasonable and indicative of a lack of credibility on his part
in light of the clear and conspicuous labeling of the product as containing a controlled substance.
6 The Individual testified that the photos of vape pens included in Exhibit A were examples that he found online of
the brand of vape pen that he used, but were not the specific formulations that he used. Tr. at 19, 35.
7 The Individual continued to meet with the therapist following the initial consultation to address stressors in his life
unrelated to drug use. Tr. at 46–49.
8 The Individual did not identify the last date on which he used any THC product. His testimony concerning the last
date on which he used the transdermal compound was inconsistent and ranged from several months prior to the random
drug test to possibly as recently as March 2022. Compare Tr. at 34 (testifying at the hearing that he had not used the
transdermal compound in “over six months” with Tr. at 56 (testifying that he last used the transdermal compound in
“probably the end of September, early October” of 2021).
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A. Bond Amendment
Pursuant to the Bond Amendment, “a Federal agency may not grant or renew a security clearance
for a covered person who is an unlawful user of a controlled substance or an addict.” 50 U.S.C.
§ 3343(b). Thus, if the Individual is an unlawful user of marijuana or an addict, his access
authorization may not be restored based on a meritorious waiver or mitigation of the security
concerns associated with his drug use. Adjudicative Guidelines at app. B, ¶ 1.
The Individual bears the heavy burden of proof to overcome the presumption against restoring his
access authorization by showing that doing so “would not endanger the common defense and
security and would be clearly consistent with the national interest.” 10 C.F.R. § 710.27(a); Dep’t
of Navy v. Egan, 484 U.S. at 531. The Individual’s testimony that he no longer uses THC products,
unsupported by drug testing or other corroborating evidence, is insufficient to meet this burden.
Additionally, the Individual did not definitively testify as to the last date on which he claims to
have used any THC product, and I did not find his testimony as to when he last used specific
products, such as the transdermal compound, credible because it was vague and contradictory.
Supra note 8, at 4. The Individual’s credibility on the subject of his use of THC products was
further undermined by his convoluted reasoning as to why he did not believe that his use of the
transdermal compound constituted prohibited drug use despite clear and conspicuous labeling of
the product as a controlled substance. Supra note 5, at 4. Yet further, the Individual continued to
possess the transdermal compound in his home as of the date of the hearing despite DOE’s
concerns about his illegal drug use. Thus, I am not persuaded that the Individual has abstained
from using THC products since the positive drug test. Finally, even if I credited the Individual’s
testimony that he has not used THC products in over six months, his illegal drug use would still
have been more frequent and recent than that of persons OHA has determined were not disqualified
from holding access authorization under Bond Amendment.9
In light of the frequency of the Individual’s use of products containing THC, and the lack of
certainty as to when he last used such products, I find that he has not met his burden to establish
that he is not a user of a controlled substance or an addict. Therefore, I conclude that the Individual
is prohibited from holding access authorization under the Bond Amendment.
B. Guideline H
9 OHA has previously found that a person who used illegal drugs or misused controlled substances was not disqualified
from holding a security clearance under the Bond Amendment when the person’s drug use occurred in isolated
instances or had not reoccurred for several years. See Personnel Security Hearing, OHA Case No. PSH-21-0124 at 6
(2021) (determining that a person was not disqualified from holding access authorization under the Bond Amendment
based on his self-disclosure that he had consumed a cookie he did know at the time contained THC on a single
occasion); Personnel Security Hearing, OHA Case No. PSH-21-0057 at 5 (2021) (concluding that a person was not
an unlawful user of a controlled substance or an addict based on self-disclosed use of Adderall without a prescription
on two or three occasions more than two years prior to the hearing); Personnel Security Hearing, OHA Case No. PSH-
21-0031 at 8 (2021) (determining that a person’s self-disclosed use of marijuana on two occasions more than three
years prior to the hearing did not disqualify her from holding access authorization under the Bond Amendment).
Decisions issued by OHA are available on the OHA website located at http://www.energy.gov/OHA.
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The Individual’s positive drug test while granted access authorization justifies the LSO’s
invocation of Guideline H. Adjudicative Guidelines at ¶ 25(a), (f). Conditions that may mitigate
security concerns under Guideline H include:
(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 used products containing THC and tested positive for marijuana metabolite within
the past year, and he has not produced drug testing to corroborate that he has abstained from illegal
drug use since the positive November 2021 drug test. Therefore, I cannot conclude that the
behavior happened so long ago as to mitigate the security concerns. The Individual acknowledged
that he used products containing THC products on a daily basis for several months, and therefore
his use of the products was not so infrequent as to mitigate the security concerns.
The Individual argued that his illegal drug use occurred under unusual circumstances because he
did not understand that the products he was using contained sufficient quantities of THC for him
to test positive for marijuana metabolites and that the conduct was unlikely to recur because of the
information that he learned subsequent to the positive drug test. I do not find these assertions
convincing. First, the transdermal compound the Individual used was clearly and conspicuously
labeled as containing a Schedule I Controlled Substance. Moreover, the website for the company
that produces the vape pens that the Individual used indicates that its products formulated at a 1:1
ratio of CBD to THC, a potency which the Individual testified at the hearing to having used, are
“designed for experienced cannabis users who can tolerate more THC for a balanced feeling with
some psychoactivity.” Care By Design 1:1, CARE BY DESIGN, cbd.org/products/1:1 (last visited
September 2, 2022). I do not find it credible that the Individual could have failed to understand
that using marijuana-derived products labeled as controlled substances, and that were sufficiently
potent to produce intoxicating effects, constituted prohibited drug use. If the Individual was
genuinely unaware that use of such products constituted prohibited drug use, such an unreasonable
belief, in the face of obvious evidence to the contrary, would call into question his reliability and
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ability to comply with rules and regulations. For these reasons, I find the first mitigating condition
under Guideline H inapplicable. Adjudicative Guidelines at ¶ 26(a).
The Individual has acknowledged his use of THC products and expressed the intention not to use
them in the future. However, he has not established a pattern of abstinence from THC products,
such as through drug testing. Moreover, he maintained THC products in his home as of the date of
the hearing and did not provide a signed statement acknowledging that any future drug
involvement or substance misuse is grounds for revocation of his access authorization. Thus, the
second mitigating condition under Guideline H is inapplicable. Id. at ¶ 26(b).
The third mitigating condition is irrelevant to this matter because the LSO has not alleged that the
Individual abused prescription drugs, and the Individual was never prescribed THC products. Id.
at ¶ 26(c). The final mitigating condition is not applicable because the Individual has not
participated in a drug treatment program. Id. at ¶ 26(d).
For the aforementioned reasons, none of the mitigating conditions under Guideline H are
applicable to the facts of this case. Accordingly, the Individual has not resolved the security
concerns asserted by the LSO.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
DOE to raise security concerns under the Bond Amendment and Guideline H of the Adjudicative
Guidelines. After considering all 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. This Decision may
be appealed in accordance with the procedures set forth at 10 C.F.R. § 710.28.
Phillip Harmonick
Administrative Judge
Office of Hearings and Appeals