PSH-23-0054

*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: January 31, 2023 ) Case No.: PSH-23-0054
)
__________________________________________)
Issued: May 16, 2023
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Administrative Judge Decision
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Richard A. Cronin, Jr., Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXX (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 be granted.
I. BACKGROUND
The Individual is employed by a contractor at a DOE facility and is required to possess a security
clearance. Transcript of Hearing (Tr.) at 46–47. When selected for a random urine drug test in
March 2022, the Individual tested positive for marijuana. Exhibit (Ex.) 10 at 1 (urine drug test
results).
The local security office (LSO) issued the Individual a letter notifying him that it possessed reliable
information that created substantial doubt regarding his eligibility to possess an access
authorization. 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. 3.
The Individual exercised his right to request an administrative review hearing pursuant to
10 C.F.R. Part 710. Ex. 5. The Director of the Office of Hearings and Appeals (OHA) appointed
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.
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me as the Administrative Judge in this matter, and I subsequently conducted an administrative
hearing. The LSO submitted ten exhibits (Exs. 1–10). The Individual submitted seven exhibits
(Exs. A–G).2 The Individual testified on his own behalf and offered the testimony of a friend
(Friend) and his spouse. Tr. at 30, 77.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline H of the Adjudicative Guidelines as the basis for its suspension of the
Individual’s access authorization. Ex. 1. “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 Individual’s positive urine test result for marijuana as
Guideline H derogatory information. Given this test result, the LSO’s invocation of Guideline H
was justified. Id.
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) (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 or her eligibility for an access authorization.
The Part 710 regulations are drafted so as to permit the introduction of a 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
2 The Individual submitted these exhibits designating them as Exhibits Nos. 1–6 and Exhibit G. For purposes of this
Decision, I have redesignated them as Exhibits A–G.
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The Individual has been employed by DOE contractors at the DOE site since 1996 and has
possessed a security clearance during his entire employment.3 Tr. at 46–47. At the hearing, the
Individual testified that in 2019 he was playing basketball with several of his relatives and fell. Id.
at 11. It was determined that the Individual had fractured his heel and required surgery to insert
surgical screws to repair the injury. Id. After the Individual’s surgeon had removed a cast from the
Individual’s heel, a soft cast was placed on his heel, and he was given a scooter for mobility. Id.
at 12. Shortly thereafter, the Individual was going to the bathroom and fell, reinjuring his heel. Id.
This new injury required additional surgery and physical therapy. Id.
Because of these injuries, the Individual experienced significant amounts of pain such that the pain
would cause him trouble with sleeping. Id. The Individual had been prescribed pain killing narcotic
medication, but the Individual did not want to overuse these drugs and, as a result, researched other
ways of relieving his pain. Id. at 49. His research indicated that CBD oil could relieve pain.4 Id.
Other individuals advised him to use only CBD oil derived from hemp plants since it did not have
significant amounts of the active (and illegal) substance of tetrahydrocannabinol (THC) found in
marijuana. Id. Consequently, the Individual purchased products that were hemp based. Id. at 50,
59.
The Individual further testified that around December 2021, the Individual began to use topical
CBD oil to reduce the pain in his injured heel. Id. at 12. In purchasing the CBD oil, he would look
for brands that were derived from hemp and had less than two percent THC. Id. at 47. He purchased
the CBD oil from a health food store or from various gas stations. Id. at 47. Over the following
three months the Individual would use the CBD oil in the evenings to reduce his pain and would
apply it approximately three times in an evening before going to bed. Id.at 48–49. Typically, he
would use the CBD oil when he would get back home from work and would reapply it after
showering. Id. at 48. The Individual testified that he would use the CBD oil “quite a bit” because
the CBD oil made several activities less painful. Id. at 48.
In March 2022, he was selected for a random urine drug test. Ex. 10 at 1. A few days after taking
the test, the Individual was informed that he had tested positive for marijuana. Id. The Individual
testified that, upon receiving the test result, he stopped using the CBD oil. Tr. at 48. The Individual
then personally paid for another urine drug test on April 1, 2022, by another laboratory. Id.; Ex. F
at 4. The results of this test were negative for marijuana. Ex. F at 4. Another urine drug test required
by the DOE facility where he worked was collected on April 21, 2022, and was negative for
marijuana. Id. at 3. The Individual submitted into the record a report, produced by the drug testing
laboratory at the DOE facility, which confirmed that but for the March 2022 test, the Individual
had tested negative for all drugs during the period June 2018 to March 2023. Id. During the period
before the March 2022 positive test for marijuana, the Individual was randomly tested once every
two years. Ex. 6 at 3. After the positive test, the Individual was tested once a month. Id.
3 Because the Individual was placed on unpaid administrative leave by his employer for a period of six months because
of his positive urine test, the DOE terminated his clearance. Tr. at 14. The Individual was subsequently rehired but
had to reapply for a clearance, which is the subject of this Decision. See infra; Id. at 14–15.
4 CBD oil is an oil containing cannabidiol (CBD), an active ingredient in marijuana. It can also be found in another
plant, hemp. Tr. at 49.
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As a result of his positive test for marijuana, his employer placed the Individual on unpaid
administrative leave for six months so that he could resolve his suspended clearance. Tr. at 14.
Because the Individual did not have need for a security clearance for six months the LSO
terminated his security clearance. Id. at 15. Nonetheless, his employer placed him in a different
position in April 2022, and he was informed by the LSO that he would have to reapply for a
security clearance. Id.
As a requirement to continue at work after being reinstated, the Individual was required to
complete a drug abuse assessment. Ex. E at 1. The treatment facility that conducted the assessment
found that the Individual was a “high functioning, responsible and trustworthy employee” who did
not meet any of the criteria for a diagnosis of substance abuse or addiction. Id. The treatment
facility recommended that the Individual be allowed to return to work immediately and complete
three individual psychoeducation hours on pain management techniques within 60 days of his
return to work.5 Id. The Individual successfully completed the pain management techniques
educational program in the required time period. Ex. G at 1. The Individual also testified that he
has never been arrested or used any illegal drugs or medication not prescribed for him. Id. at 62.
The Individual testified that when he had to “look [his spouse] in the eye” and inform her about
his losing his security clearance, she became concerned about possible financial problems that
could result if he lost his job. Id. at 56. He also felt compelled to tell his son about the situation so
that he might learn from the Individual’s mistake. Id. at 57. The Individual feels that he alone is
responsible and accountable for the loss of his security clearance. Id. at 57–58. The Individual has
learned from this experience and now knows he should have consulted with the facility’s medical
department or the Medical Review Officer (MRO) for the DOE facility before using the CBD oil.
Id. at 57.
The Individual submitted into the record a copy of an email to the Individual from the Chief
Operating Officer of the firm that processes drug testing at the DOE facility. Ex. C at 1. The March
17, 2022, email quotes text from a memorandum (memo) sent from the firm’s MRO to the
Individual’s employer’s human resources department. Id. The email quotes the memo in relevant
part:
In regards to his recent [urine drug test], [the Individual] screened positive for THC
with a very low level. I have interviewed [the Individual] in my capacity as the
Medical Review Officer for our Federal Drug Screening program and in my
capacity as the Site Medical Director. Federal Law does not allow me to convert
this [test] to a negative regardless of the level/concentration or circumstance that
may have created it and therefore it will remain a positive [test] for THC. However,
I do wish to offer my medical opinion after closely evaluating the situation. It is my
medical opinion that the [Individual’s] low level THC likely represents
consumption or usage of commercially available CBD products sold over the
counter at most every type of market place in this country. I do not feel he
knowingly consumed THC and I do not feel he has ever represented a safety or
5 The treatment center’s report is dated May 6, 2022, and implies that the Individual had not yet returned to work. Ex.
5 at 1. The Individual testified that he returned to work in April 2022. I need not resolve this factual discrepancy since
it has no bearing on the issue of the Individual’s suitability to hold a security clearance.
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security risk. He unfortunately is a victim of a CBD industry that is not regulated
well and therefore advertises CBD products to be “free or void” of THC but this is
almost never the case. Therefore, they often can trigger these low level positive
screens. These levels are not ever likely to be impairing and in my opinion are low
risk.
Id.
The Individual’s spouse testified that she has known the Individual for 17 years, and they have
been married for 11 years. Tr. at 31. Her testimony confirmed the Individual’s account regarding
the facts surrounding his injury and his medical treatment. Id. at 32–33. She stated that she
supported his decision to try CBD oil. Id. at 34, 38. She also testified that she found the Individual
to be a “man of his word” and a “by the book” type. Id. at 37. She stated that the Individual, during
social occasions, will only consume two beers. Id. at 41. The spouse also testified that she has
never observed the Individual misusing prescription pain medication. Id. at 42. Further, she has
never been aware of any issues regarding the Individual’s integrity. Id. The Individual has coached
most of the youth teams for which their son has played. Id. at 39. The spouse testified that regarding
the Individual’s reliability, judgment, and truthfulness, the Individual is “spot on.” Id. at 40.
The Friend testified that he has known the Individual for five or six years. Id. at 18. The Friend’s
family and the Individual’s family go out to dinner together and will take trips out of town together.
Id. During a year both will coach three youth sports teams together. Id. at 19. Typically, he will
see the Individual on average three times a week. Id. The Friend trusts the Individual “100 percent”
and would entrust his children to be cared for by the Individual and his spouse. Id. The Friend
testified that he knows about the Individual’s injury and his subsequent CBD oil use. Id. at 20, 22.
Because the Friend is a recovering alcoholic, he is aware of alcohol misuse and has not observed
the Individual appear under the influence of alcohol or marijuana. Id. at 23, 30.
V. ANALYSIS
The Guideline H security concerns in this case center on the Individual’s one positive test for
marijuana. Conditions that could mitigate a security concern 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
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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.
Adjudicative Guidelines at ¶ 26.
In the present case, I find that mitigating factors (a) and (b) are applicable.
Regarding mitigating factor (a), I find that the Individual’s absorption of THC was caused by his
use of CBD oil and was inadvertent. I find convincing the MRO’s statement that the inadvertent
absorption of THC by use of CBD oil is the cause of the Individual’s positive urine test. I also find
convincing the Individual’s account regarding the significant injury that prompted his use of CBD
oil along with the supporting testimony of the Individual’s spouse and the Friend confirming the
injury. After examining the entire record, I find the Individual’s injury that prompted the
Individual’s use of CBD oil and consequent absorption of THC happened under such
circumstances that it is unlikely to recur. There is no evidence that, outside his use of CBD oil, the
Individual has ever used marijuana, and this is supported by the Individual’s negative urine tests
from the past five years. The testimony of the spouse and the Friend supports a finding that the
Individual’s judgment, reliability, and trustworthiness has never been impaired. Consequently,
mitigating factor (a) is applicable in this case.
As for mitigating factor (b), the Individual has openly admitted his use of CBD oil that resulted in
the positive marijuana drug test. He has further convincingly established his abstinence from CBD
oil/marijuana and has submitted eleven negative monthly drug tests beginning from the date of his
positive test (April 2022 to March 2023) to verify his non-use of these substances and establish
that he has changed the circumstances, use of CBD oil, which resulted in his positive marijuana
test. Additionally, the testimony from the spouse, the Friend, and the memo from the MRO support
a finding that the Individual is not a user of exogenous marijuana. Considering the record before
me, I find that mitigating factor (b) applies in the present case.
Lastly, I have considered the factors described in 10 C.F.R. §710.7(c) regarding the application of
the Adjudicative Guidelines: the nature, extent, and seriousness of the conduct; the circumstances
surrounding the conduct, to include knowledgeable participation; the frequency and recency of the
conduct; the age and maturity of the individual at the time of the conduct; the voluntariness of
participation; the absence or presence of rehabilitation or reformation and other pertinent
behavioral changes; the motivation for the conduct; the potential for pressure, coercion,
exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and
material factors. In the Individual’s case, as discussed above, I find that there were unusual
circumstances leading to his positive test for marijuana and that he did not understand that his use
of CBD oil would result in a positive marijuana test result. I also find that there is a low likelihood
that the Individual will use CBD oil or otherwise consume marijuana in the future. Apart from the
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spouse’s and the Friend’s testimony concerning the Individual’s integrity, the Individual’s own
testimony reflects the fact that this incident has made a significant impression on him.
Additionally, the Individual’s history of negative urine tests supports this conclusion. These
findings further convince me that the Individual has mitigated the LSO’s security concerns.
In sum, based upon the evidence before me, I find that the Individual has mitigated the Guideline
H security concerns raised by his positive urine test for marijuana.
VI. 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 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 brought forth sufficient evidence to resolve these concerns.
Accordingly, I have determined that the Individual’s access authorization should be granted. This
Decision may be appealed in accordance with the procedures set forth at 10 C.F.R. § 710.28.
Richard A. Cronin, Jr.
Administrative Judge
Office of Hearings and Appeals