PSH-22-0118

*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 12, 2022 ) Case No.: PSH-22-0118
)
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Issued: November 15, 2022
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Administrative Judge Decision
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Katie Quintana, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXX (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, entitled “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 her to hold a security
clearance. In March 2022, her employer subjected her to a drug test, which indicated the presence
of Hydrocodone and Hydromorphone in her urine. Exhibit (Ex.) 6.
Due to security concerns related to the Individual’s drug use, the Local Security Office (LSO)
informed the Individual in a Notification Letter that it possessed reliable information that created
substantial doubt regarding her eligibility to hold a security clearance. In the Summary of Security
Concerns, attached to the Notification Letter, the LSO explained that the derogatory information
raised security concerns under Guideline H (drug involvement) and Guideline J (criminal conduct)
of the Adjudicative Guidelines. Ex. 2. It also informed the Individual that she was subject to the
Bond Amendment, which provides that a federal agency may not grant or renew a security
clearance to a person who is an unlawful user of a controlled substance or an addict. Id.
1 Access authorization is defined 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). Such
authorization will be referred to variously in this Decision as access authorization or security clearance.
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Upon receipt of the Notification Letter, the Individual exercised her right under the Part 710
regulations by requesting an administrative review hearing. Ex. 1. The Director of the Office of
Hearings and Appeals (OHA) appointed me the Administrative Judge in the case, and I
subsequently conducted an administrative hearing in the matter. At the hearing, the DOE Counsel
submitted seven numbered exhibits (Ex. 1-7) into the record. The Individual introduced eight
lettered exhibits (Ex. A-H) into the record and presented the testimony of four witnesses, including
the Individual herself. The hearing transcript in the case will be cited as “Tr.” followed by the
relevant page number.
II. Regulatory Standard
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 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) (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 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.
III. Notification Letter and Associated Security Concerns
As previously mentioned, the Notification Letter included the Summary of Security Concerns,
which set forth the derogatory information that raised concerns about the Individual’s eligibility
for access authorization. The information in the letter specifically cites Guideline H and Guideline
J of the Adjudicative Guidelines as well as the Bond Amendment. Ex. 2. Guideline H relates to
security risks arising from drug involvement and substance misuse. “The illegal use of controlled
substances, to include the misuse of prescription and non-prescription drugs…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.
Guideline J relates to criminal conduct which creates doubts about a person’s judgment, reliability,
and trustworthiness. Id. at ¶ 30. “[I]t calls into question a person’s ability or willingness to comply
with laws, rules, and regulations.” Id. The Bond Amendment provides that “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).
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In citing Guideline H, Guideline J, and the Bond Amendment, the LSO relied upon the Individual’s
March 2022 drug screening, in which she tested positive for Hydrocodone and Hydromorphone,
which the LSO noted are both Schedule II controlled substances. Ex. 1.
IV. Findings of Fact
As stated above, the Individual tested positive for Hydrocodone and Hydromorphone during a
March 2022 employer conducted drug screening. Ex. 6. It is undisputed that Hydrocodone and
Hydromorphone are Schedule II controlled substances.
At the hearing, four witnesses testified on the Individual’s behalf: her partner (Partner), the
Individual herself, her daughter (Daughter), and her son-in-law (Son-In-Law). The Partner testified
that he and the Individual have been together for 25 years, and although they are not legally
married, he considers her to be his wife. Tr. at 22. Regarding the events preceding the positive drug
test, the Partner explained that the Individual suffers from migraines, and on one occasion, “she
was feeling really ill and asked me for…a pain pill, and…I mistakenly gave her one.” Id. at 23.
The Partner clarified that he gave her his prescription medication and stated that the Individual did
not know what he was giving her. Id. at 23-24. The Partner stated that he understood that the
Individual was subjected to a random drug screening the following morning, which produced a
positive result. See id. The Partner testified that he has never known the Individual to take a
prescription medication that was not prescribed to her, and he described her as always being “drug
free.” Id. at 24.
The Partner stated that he now keeps his medications hidden, and the Individual does not know
where they are located. Id. at 26. The Partner testified that he keeps his medications “locked up,”
but he later clarified that he does not keep them “under lock and key.” Id.
The Individual testified on her own behalf and did not dispute that she took the prescription
medication that appeared on her positive drug test. See id. at 32. The Individual testified that, since
2019, she had undergone random drug screenings from her employer on at least a monthly basis,
and she had never received a positive result. Id. at 29. She submitted seven random drug test results
spanning from April 2022 to August 2022, all of which were negative. Ex. E-F. 2 She explained
that she has a history of migraines, and on the day she took the prescription medication, she was
suffering from a migraine. Tr. at 29. The Individual stated that she asked the Partner to give her
“migraine medication.”3 Id. at 32. She noted that both she and the Partner kept their medications in
the “same location” in the kitchen, where the Partner keeps them “locked up.” Id. at 35. The Partner
gave her a pill, and she fell asleep. Id. The following morning, her employer informed her that she
2 It should be noted that the Individual’s Exhibits E and F contain identical copies of the testing results. Id. The
Individual’s exhibits also show a random test that was conducted in September 2022; however, the results of the test
are absent. Id. The Individual testified that she did not know why the results of that test were missing. Tr. at 40. At the
hearing, DOE Counsel suggested that the Individual submit additional drug screening results following the hearing,
but the Individual did not submit any additional testing into the record. Id.
3 The Individual testified that she has a valid prescription for a migraine medication. Tr. at 34.
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would be subject to a drug screening, which was positive for Hydrocodone and Hydromorphone.
Id.
The Individual explained that although her migraine medication pills were medium-sized, white,
oval shaped pills, and the Partner gave her a “big…almost like horse pill,” she did not question the
Partner because she “was just in a lot of pain.” Id. at 41-42. She also stated that on the morning
after she had taken the Partner’s medication, she told him “I don’t think that was my medication”
because she “felt a little weird, like…if it was…stronger than my migraine medication.” Id. at 42.
The Individual indicated that the Partner then told her, “I couldn’t find your medication.”4 Id. at
43. Although she realized that she took “something other than [her] migraine medication,” she did
not “think to tell anyone that [she] had taken a medication” that was not prescribed to her when she
was ordered to report for her drug screening. Id. at 43-44. When she learned she had tested positive,
the Individual testified that she was “shocked” as she did not “take drugs.” Id. at 31. She stated that
she immediately called the Partner and “found out that he had given [her] one of his prescription
medication[s].” Id.
The Individual testified that, since testing positive on her drug screening, she has now changed how
her medications are stored in order to prevent future mistakes. Id. at 37-38. She stated that she now
keeps her medications in her purse, and she is the only person who retrieves them. Id. at 38. When
asked why the Partner testified that he hides his medications from her, the Individual stated that
she did not know, but he has “always been that way.”5 Id. at 45. She further testified that, since her
positive drug test, the Partner has removed his medications from the kitchen and now stores them
in a safe. Id. at 45.
The Daughter testified that, on the day the Individual tested positive for “pain medicine,” the
Individual was “very disappointed in herself.” Id. at 14. The Daughter stated that she has never
known the Individual to have “a problem with taking pain medication [or] … taking medication
that was not prescribed to her.” Id. She testified that the Individual is trustworthy and does not “do
anything illegal to jeopardize her job in any way.” Id. at 15. The Daughter also testified that the
Partner keeps his medications “locked up.” Id. at 16.
The Son-in-Law testified that he has known the Individual for over 20 years, and he has never
known the Individual to use medication that was not prescribed to her or in a manner that was
outside its intended purpose. Id. at 18, 20-21. He also felt that the Individual was honest and had
never questioned her ability to follow rules. Id. at 21.
V. Analysis
I have thoroughly considered the record of this proceeding, including the submissions tendered in
this case and the testimony of the witnesses presented at the hearing. In resolving the question of
4 It is not clear from the Individual’s testimony whether she learned that the Partner had given her his prescribed
medication at the time of this conversation. Additionally, it is unclear as to whether the Individual learned that she was
given something other than her prescribed migraine medication prior to receiving her positive drug screening results
as she provided two differing accounts regarding the timing of her realization. See Tr. at 36, 43.
5 I note that this testimony appears to be contrary to the Individual’s testimony that her migraine medication and the
Partner’s medications were stored in the same location in the kitchen. Tr. at 35.
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the Individual’s eligibility for access authorization, I have been guided by the applicable factors
prescribed in 10 C.F.R. § 710.7(c) and the Adjudicative Guidelines. After due deliberation, I have
determined that the Individual has not sufficiently mitigated the security concerns noted by the
LSO regarding Guideline H, Guideline J, and the Bond Amendment. I cannot find that restoring
the Individual’s DOE security clearance will not endanger the common defense and security and is
clearly consistent with the national interest. 10 C.F.R. § 710.27(a). Therefore, I have determined
that the Individual’s security clearance should not be restored. The specific findings that I make in
support of this Decision are discussed below. Due to the interconnected nature of the Guideline H
and Guideline J security concerns, I will analyze them together.
Misuse of a prescription medication can raise a security concern under Guideline H and disqualify
an individual from holding a security clearance. Adjudicative Guidelines at ¶ 24-25. Conditions
that could mitigate a security concern under Guideline H include: (a) the behavior was so infrequent
or so long ago that it is unlikely to recur and does not cast doubt on an individual’s current
reliability, trustworthiness, or judgment; or (b) an individual acknowledges his or her drug
involvement, provides evidence of actions taken to overcome this problem, and has established
pattern of abstinence, including dissociating from drug-using associations, avoiding the
environment where he or she used drugs, and providing a signed statement of intent to abstain from
all drug-involvement.6 Id. at ¶ 26(a), (b).
Turning to Guideline J, evidence of criminal conduct, regardless of whether the individual was
formally charged, prosecuted, or convicted, could raise a security concern that may disqualify a
person from holding a security clearance. Id. at ¶ 31(b). A condition that could mitigate a security
concern under Guideline J is that so much time has elapsed since the criminal behavior occurred,
or it occurred under such unusual circumstances, that it is unlikely to recur and does not cast doubt
on the Individual’s reliability, trustworthiness, or good judgment.7 Id. at ¶ 32(a).
In this case, it is undisputed that the Individual took a Schedule II controlled substance that was
not prescribed to her. Id. at ¶¶ 25(a), 32(a). It appears that the Individual used the Partner’s
medication in an unusual circumstance, as she was suffering a migraine and the Partner was unable
to locate her prescribed medication. See id. at ¶ 26(a). However, based on my analysis below, there
is insufficient evidence in the record for me to find that this situation is unlikely to recur and that
it does not cast doubt on the Individual’s current reliability, trustworthiness, or judgment. See id.
at ¶¶ 26(a), 32(a).
First, I found the Individual’s testimony to be, at times, confusing, contradictory, and concerning.
I, therefore, question the credibility of her testimony. The Individual testified that she knew the
Partner did not give her own migraine medication, as the pill he provided her was a different size
than hers; however, despite this awareness, she took the medication. Additionally, although the
Individual provided two differing accounts in her testimony of when she realized she took a
medication other than her own, it appears that, prior to going to work on the day of the drug
screening, she knew she took a medication other than her migraine prescription based upon the way
6 Although Guideline H lists two other mitigating conditions as well, see Adjudicative Guidelines at ¶ 26(c), (d), these
are not relevant to the Individual’s case and therefore I do not consider them.
7 Although Guideline J lists three other mitigating conditions as well, see Adjudicative Guidelines at ¶ 32(b), (c), (d),
those are not relevant to the Individual’s case and therefore I do not consider them.
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she was feeling and her conversation with the Partner. Nonetheless, she did not attempt to find out
from the Partner what medication he gave her. Furthermore, when the Individual was notified that
she would be subject to a drug screening, she did not disclose that she took a medication that had
not been prescribed for her migraines.
Turning to whether this situation is unlikely to recur, insofar as the Individual testified that she now
keeps her migraine medication in her purse and is the only one to retrieve it, I cannot find that this
will ensure that she does not take medications that are not prescribed to her. The problematic
conduct in this situation occurred, not because her medication was stored improperly and not
because someone else went to retrieve it, but because she took a medication for her migraine,
knowing it was not her migraine pill. Furthermore, I find it concerning that the Partner feels the
need to hide his medication from the Individual. The Partner did not explain why he does so.
Although the explanation could be as practical as ensuring that his medication is not mistaken for
something else, his lack of explanation leaves open the question of whether he hides the medication
from the Individual out of a concern that she may inappropriately access it. The Individual testified,
without any adequate explanation, that the Partner has always hidden his medication from her;
however, according to the Individual, on the day of her migraine, all of their medication was kept
together in the kitchen. Ultimately, I found the Individual’s testimony and her Partner’s testimony
insufficient to persuade me that it is unlikely the Individual will take medication that is not
prescribed to her in the future.
Finally, although the Individual provided evidence of seven negative drug tests, I note that these
tests were taken over a four-month period and merely provide a brief insight into the Individual’s
history of drug testing and potential drug misuse. As such, I cannot find that the Individual has
established a pattern that she has not used a medication other than that which is prescribed for her
migraines. See id. at ¶ 26(b). As stated above, I must resolve any doubts in favor of national
security, denying a security clearance when there is any uncertainty about an individual’s
eligibility. See 10 C.F.R. § 710.7(a); see also Egan, 484 U.S. 518, 531 (1988). In this situation,
although it is quite possible that the Individual’s use of the Partner’s medication was a one-time
mistake, given the Individual’s contradictory and confusing testimony and the limited drug testing
results that were entered into the record, I cannot find that the Individual has provided sufficient
evidence to show that she has mitigated the security concerns. As such, for the foregoing reasons,
I conclude that the Individual has not sufficiently resolved the security concerns set forth in the
Notification Letter with respect to Guideline H and Guideline J.
Regarding the Bond Amendment, the DOE defines an “unlawful user of a controlled substance” as
follows:
[A]ny 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.
In the Matter of: Personnel Security Hearing, OHA Case No. PSH-21-0031 (2021) at 7-8 (applying
DOE’s new policy outlined in Memorandum from David Turk, Deputy Secretary of Energy, to
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Kathleen Hogan, Acting Under Secretary for Science and Energy, et al., “Revision of DOE Policy
Regarding Application of the Bond Amendment” (April 23, 2021)).
I cannot find that there is sufficient evidence in the record to determine that the Individual is not
an unlawful user of a controlled substance pursuant to this definition. First, as noted above, the
Individual knowingly took a prescription medication for her migraine that was not prescribed to
her and failed to report it prior to undergoing a random drug screening as recently as approximately
seven months prior to the hearing. In light of the contradictory testimony regarding the
circumstances of this event and the limited number of drug test results submitted into evidence, I
cannot find that this was a one-time occurrence and that the Individual does not or has not used the
Partner’s medication on other occasions. Additionally, the Partner’s testimony that he hides his
medication from the Individual raises a concern as to why he feels he must keep his medication
from the Individual and whether he has some apprehension regarding her usage of the medication.
As such, I cannot find that the Bond Amendment is inapplicable in this situation.
VI. Conclusion
After considering all of the relevant information, favorable and unfavorable, in a comprehensive,
common-sense manner, including weighing all of the testimony and other evidence presented at
the hearing, I have found that the Individual has not brought forth sufficient evidence to resolve
the security concerns associated with Guideline H, Guideline J, and the Bond Amendment.
Accordingly, the Individual has not demonstrated that restoring her security clearance would not
endanger the common defense and would be clearly consistent with the national interest. Therefore,
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.
Katie Quintana
Administrative Judge
Office of Hearings and Appeals