RECENT ALCOHOL AND DRUG CASE VICTORIES

* * * * *

security clearance expertU.S. DEPARTMENT OF DEFENSE; GUIDELINE “H” (August 23, 2021)

Our client in this matter was a DoD contractor accused of using marijuana during college 5 years prior while holding a security clearance.  We demonstrated that the client reasonably believed she did not have a security clearance during the time of use.  We further demonstrated that the use was confined to the college environment, that the client had matured significantly since that time, and that a variety of other factors demonstrated continued use was unlikely.  We succeeded in obtaining a withdrawal of the Statement of Reasons (SOR) based solely on the written response without the need for a hearing.  Security clearance granted. 

U.S. DEPARTMENT OF DEFENSE; GUIDELINES “H” and “E” (June 15, 2021)

Our client in this matter was a U.S. Army soldier accused of testing positive for cocaine in 2016 and subsequently failing to disclose his drug use on an SF-86.  We offered a robust defense to the drug use, demonstrating that it was a one-time lapse in judgment that had been substantially mitigated by the client’s successful completion of an Army substance abuse program (ASAP) and an otherwise stellar record.  We then identified key evidence undercutting the claim of intentional falsification.  Specifically, we obtained documentary proof that the client had accurately completed and submitted a draft of his SF-86 containing the drug use but was incorrectly instructed by a superior to remove it on the basis that his completion of ASAP had “wiped the slate clean.” Security clearance retained. 

U.S. DEPARTMENT OF HOMELAND SECURITY; GUIDELINES “H”, “J”, and “E” (May 27, 2021)

Our client in this matter was a TSA employee accused of omitting past drug use from his SF-86, using marijuana, and exhibiting a “significant response” during a pre-employment polygraph with another agency.  We prepared a substantial defense for the client, incorporating both pertinent facts and law.  Among other issues, we pointed out that the purported omissions were not within the required scope of reporting; that the singular alleged ingestion of marijuana was second-hand and unintentional (and thus irrelevant); and that government policy generally precludes the use of polygraph technical calls to deny or revoke a security clearance.  Despite obvious problems with TSA’s case, the revocation decision was upheld at the initial level.  We then appealed to the DHS Security Appeals Board, where we identified additional due process issues with TSA’s adjudication.  The SAB agreed with us, reversing TSA’s decision and reinstating our client’s security clearance.

U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT; GUIDELINES “H” and “E” (April 19, 2021)

In this matter, we were privileged to represent a U.S. Foreign Service Officer accused of using marijuana while holding a security clearance.  The use occurred one (1) time, in a state where marijuana had been legalized, and the client simply did not understand the nuance between state and federal legalization.  We prepared a comprehensive defense using character evidence, pertinent policy, and other means of alleviating security concerns.  It took appealing to the agency’s Security Clearance Review Panel, but our case ultimately prevailed.  Security clearance reinstated. 

U.S. DEPARTMENT OF DEFENSE; GUIDELINES “H” and “J” (April 14, 2021)

Our client in this matter was a DoD civilian employee accused of minor marijuana use while holding a security clearance.  Although traditionally a difficult fact pattern, we demonstrated that the behavior was an uncharacteristic lapse of judgment caused by extraordinary personal stressors.  We further demonstrated that the client had undertaken remedial measures, including counseling, and that the lapse of judgment was not a definitive one in light of favorable whole person evidence.  Security clearance retained.

U.S. DEPARTMENT OF DEFENSE; GUIDELINE “H” (March 29, 2021)

Our client in this matter was a DoD contractor who had smoked marijuana intermittently for 40 years before first applying for a security clearance.  The client had been self-medicating for an anxiety disorder instead of using a prescription medication that carried potentially dangerous side-effects and was known to be addictive.  Realizing, however, that he needed to stop in order to obtain the clearance, our client stopped using marijuana 20 months before his hearing – a fact which we verified via several drug tests over those 20 months – as part of a religious commitment.  To further solidify our client’s case, we obtained a favorable evaluation of the client from a noted psychologist; substantial evidence of good character; and evidence that the client had been regularly attending therapy.  Despite a lengthy track record of marijuana use, our case carried the day.  Clearance granted.  

U.S. DEPARTMENT OF DEFENSE; GUIDELINES “G” and “J” (March 22, 2021)

Our client in this matter was a DoD contractor and single father whose livelihood depended on his security clearance.  The government alleged a history of excessive alcohol consumption – specifically, arrests for DUI in 2006, 2007, and 2015 – coupled with two other minor charges from nearly twenty years prior.  In our appeal of the preliminary decision to revoke our client’s security clearance, we demonstrated extremely unusual circumstances surrounding the 2015 arrest and made a convincing case that it was an anomaly unlikely to be repeated after eight years without a similar issue.  These arguments were supplemented with a strong whole person case and evidence of substantial rehabilitation regarding alcohol consumption generally.  The totality of our case was sufficient to demonstrate that our client posed no current risk. Security clearance retained. 

U.S. DEPARTMENT OF STATE; SUITABILITY CASE (March 5, 2021)

In this matter we represented a State Department civil service applicant who was issued an unfavorable suitability determination based on a history of marijuana use.  We prepared an extensive case for mitigation, demonstrating “substantial rehabilitation” as required by the Code of Federal Regulations, and highlighting unusual steps the applicant had taken to demonstrate a willingness to disassociate from bad influences.  To our client’s delight, the Suitability Review Panel agreed to overturn the initial unfavorable decision and move her forward in the hiring process within just a couple weeks after submitting our appeal.  

U.S. DEPARTMENT OF DEFENSE; GUIDELINE “G” (December 16, 2020)

Our client in this matter was a DoD contractor with a lengthy history of alcohol abuse that allegedly made him a security risk. Despite an unfavorable evaluation from a DoD CAF psychologist, our attorneys demonstrated that the information relied upon by the government was significantly dated, lacked critical context, and omitted a substantial track record of rehabilitation that included attendance at AA, treatment by a substance abuse professional, and an appropriate period of sobriety. Coupled with a favorable evaluation from the substance abuse professional and a rebuttal of the CAF psychologist by our own expert (who demonstrated that the CAF psychologist’s diagnosis disregarded the DSM’s guidelines), we succeeded in convincing a judge that our client had successfully rehabilitated himself and no longer posed a security risk. Clearance granted.

U.S. DEPARTMENT OF DEFENSE; GUIDELINE “H” (November 18, 2020)

In this matter, we represented a DoD contractor re-applying for a security clearance through DOHA several years after a prior denial. We prepared a strong written response to DOHA’s “show cause” letter, outlining the various changes in circumstances that had occurred since the prior denial for a history of drug use; a positive whole-person assessment; and why sufficient time had passed to demonstrate that the applicant no longer posed a security risk. DOHA was persuaded by our case, allowing the client to move forward with the reapplication process.

U.S. COAST GUARD; GUIDELINES “H” and “J” (September 15, 2020)

In this matter, we represented a U.S. Coast Guard employee accused of using marijuana once overseas while holding a security clearance and omitting information about marijuana use 16 years prior from his SF-86. We quickly pointed out that the second allegation was baseless; the client did not hold a clearance 16 years ago, and the SF-86 otherwise only required that he list use occurring within the last 7 years. With respect to the single use itself, we raised a number of compelling factors in mitigation. Among them, that the use was a situational and momentary lapse of judgment unlikely to recur, and that Guideline J is inapplicable since the use was legal where it occurred and the U.S. lacks a federal statute explicitly extending jurisdiction for overseas drug use to U.S. citizens. Although this argument was not dispositive on the broader question of judgment, it raised important questions about the interpretation of Guideline J and its applicability to this case. In sum, our efforts were sufficient to favorably resolve all concerns. Security clearance reinstated.

U.S. DEPARTMENT OF ENERGY; GUIDELINE “H” (September 8, 2020)

Our client in this matter was a DOE contractor who tested positive for marijuana on a random drug test. We produced compelling evidence that the positive test was, in fact, the result of CBD oil which had been legalized under the 2018 federal Farm Bill. We then demonstrated that the testing laboratory had failed to administer a test which could have differentiated between marijuana and CBD use despite their awareness of the client’s claims and the availability of the test; and that our client had gone above and beyond in attempting to determine whether his use of the medically-prescribed CBD oil would be considered a security issue, notwithstanding its legalization. In what we believe to be a precedent-setting case, we ultimately forced the government to acknowledge that federally-legal CBD oil can, under certain circumstances, produce a false positive for marijuana. Read the redacted decision here.

U.S. DEPARTMENT OF DEFENSE; GUIDELINES “H”, “J”, and “E” (July 28, 2020)

Our client in this matter was a DoD civilian employee accused of involvement in drug sales decades prior, plus two (2) instances of marijuana use in 2017 while working for the Department (off-duty). We prepared a comprehensive response to the Statement of Reasons, highlighting the extremely dated nature of the drug sales allegations and pushing back on efforts to link those to the 2017 marijuana use — despite a gap of 20-30 years without similar issues — as a pattern of misconduct. We demonstrated that the 2017 marijuana use was an anomaly unlikely to recur; that our client was well-respected in the workplace; and that he had turned his life around completely since his younger years. Our compelling case was successful in knocking out the SOR without the need for any further proceedings. Security clearance retained.

NATIONAL INSTITUTES OF HEALTH; SUITABILITY CASE (July 28, 2020)

In this matter we represented a National Institutes of Health (NIH) employee accused of using marijuana on a couple of isolated occasions several years ago. We raised numerous issues in the client’s defense, including that the client did not hold a security clearance at the time; that the use occurred under unusual circumstances not likely to be repeated; and that the passage of time and favorable whole-person evidence both counseled in favor of mitigation. Our written response to the agency’s concerns was sufficient to resolve this matter favorably for our client. Suitability/public trust determination granted.

U.S. DEPARTMENT OF DEFENSE; GUIDELINE “H” (June 9, 2020)

Our client in this matter was a DoD contractor and recent college graduate who had experimented with recreational drugs during college. Although the past drug use was frequent at times, we demonstrated that it was confined to the college environment which our client had since left behind. We further demonstrated that the client’s circumstances had changed significantly since her graduation; that she had cut negative influences out of her life; that she had moved to a new state and started a new job in which she was thriving; and that she had demonstrably matured. This case could have ended our client’s promising career before it ever got off the landing pad. Instead, we succeeded in convincing a judge that she no longer posed a risk to national security and could now be trusted. Security clearance granted.

U.S. DEPARTMENT OF DEFENSE; GUIDELINE “H” (April 21, 2020)

Our client in this matter was a DoD contractor accused of using methamphetamine and cocaine on several occasions in 2016. We prepared a comprehensive defense that highlighted the isolated and experimental nature of the use; the fact that the client’s inhibitions were lowered by alcohol; the involvement of a bad influence from his past who the client has since severed ties with; and the client’s demonstrated remorse. We presented a sworn affidavit from the client’s wife demonstrating her knowledge of the incidents and the strain it caused on their marriage (thereby both eliminating blackmail potential and showing the client’s motive not to engage in such behavior in the future). The totality of our case, combined with favorable whole person evidence, was sufficient to demonstrate a lack of national security risk. Security clearance granted.

U.S. DEPARTMENT OF DEFENSE; GUIDELINE “H” (March 17, 2020)

In this matter, we represented a DoD contractor issued a Statement of Reasons for using marijuana with varying frequency from 1991 until 2018. Although the span and recency of use posed an initial challenge, we demonstrated that there was a low risk of recurrence. Among other factors we highlighted, the client had never used marijuana while holding a security clearance; had honestly self-reported his past use on his SF-86; had moved across the country to a new environment free of his old temptations; received a favorable evaluation by a substance abuse expert; signed a Statement of Intent; and credibly testified about the circumstances surrounding his cessation of use. The totality of our case was enough to convince a DOHA judge that our client posed no current risk to national security. Security clearance granted.

U.S. DEPARTMENT OF DEFENSE; GUIDELINE “H” (January 21, 2020)

Our client in this matter was a DoD contractor accused of smoking marijuana while holding a security clearance. Although this is traditionally a difficult fact pattern, we demonstrated that the client’s use was an unintentional and singular occurrence that did not cast doubt on his integrity, reliability, or good judgment. Specifically, the client borrowed a “vape pen” that he reasonably thought contained tobacco but actually contained marijuana. Our client’s credible testimony at a hearing in this unusual case, combined with strong whole person evidence and other favorable facts, convincingly demonstrated that the client could be trusted. Security clearance retained.

U.S. DEPARTMENT OF DEFENSE; GUIDELINES “H” and “J” (December 13, 2019)

Our client in this matter was a DoD civilian employee accused of posing a security risk due to having used marijuana roughly 15 times between 2010 and early 2019. We prepared a comprehensive and thoughtful response to the Statement of Reasons, demonstrating that the use diminished as our client matured; that the circumstances of the use did not demonstrate addiction; and that our client reasonably misunderstood the distinction between federal law and state legalization. We won the case solely off our written response to the SOR.

U.S. DEPARTMENT OF HOMELAND SECURITY; GUIDELINES “G” and “J” (October 28, 2019)

Our client, a DHS employee, was accused by the government of being arrested for DUI. The charge itself was relatively unremarkable – most first-time DUI’s don’t result in security clearance revocation – except for the fact that we had previously represented the client in a security clearance revocation case two years earlier, which we won.

In the earlier case, we succeeded in demonstrating that the allegations against our client stemmed from an adverse reaction to prescription medication, not alcohol. When the agency later attempted to link the two cases and claim a pattern of “alcohol problems” we pushed back hard. We then demonstrated serious problems with the arresting officer’s report in the DUI case, including blatant contradictions and what appeared to be a “recycled” narrative. Among many examples, we observed that the officer described our client as exhibiting watery eyes and slurred speech – but that a breath test post-arrest indicated that he was not intoxicated (and charges were never filed). Also problematic was the arresting officer’s claim that the probable cause for the initial stop was an illegal U-turn; we obtained photographic evidence that the intersection in question did not prohibit U-turns.

Ultimately, the DHS Security Appeals Board agreed that the government’s case in this matter was untenable and reinstated our client.

U.S. DEPARTMENT OF DEFENSE; GUIDELINES “H” and “E” (September 19, 2019)

In this matter, we were privileged to represent a disabled veteran currently serving the U.S. abroad as a civilian employee. The government alleged that our client’s past use of marijuana, combined with inconsistencies in her reporting of dates and volume of use, called into question our client’s integrity and fitness to hold a security clearance. We prepared a strong response to the Statement of Reasons (SOR), highlighting critical missing context, rebutting the integrity allegations, and laying out a solid “whole person” case. Our legal and factual arguments carried the day; the Client was allowed to retain her security clearance without the need for a hearing.

U.S. DEPARTMENT OF DEFENSE; GUIDELINES “H” and “J” (August 12, 2019)

Our client in this matter was a DoD civil service employee caught in possession of a small amount of marijuana on a military base. Although our client admitted to smoking the marijuana while he had a security clearance — a normally very challenging fact pattern — we were able to demonstrate that the circumstances surrounding the use were highly unusual and unlikely to recur. We presented evidence that our client was not addicted to marijuana, had demonstrated otherwise exemplary behavior, and that this singular lapse of judgment was not a definitive one in light of overwhelmingly favorable character evidence. After an appeal to the PSAB with a personal appearance before DOHA, our client was ultimately found not to present a risk to national security. Clearance retained.

U.S. DEPARTMENT OF DEFENSE; GUIDELINES “H” and “E” (July 9, 2019)

Our client in this matter was a DoD civil service employee accused of using marijuana twice, including once approximately three (3) years prior after having been granted a public trust position. We highlighted our client’s significant track record of good judgment, integrity, and reliability, which placed these two lapses of judgment in context. We then demonstrated that the facts and circumstances surrounding the marijuana use were unusual and unlikely to recur. Finally, we addressed some of the more technical mitigating factors available to our client, which included having him sign a stipulation agreeing to random drug testing in the workplace. As a result of our efforts, our client was issued a favorable Public Trust determination and allowed to continue with his career.

U.S. DEPARTMENT OF DEFENSE; GUIDELINES “H” and “E” (May 14, 2019)

Our client in this matter was a DoD contractor accused of smoking marijuana with a security clearance several times in 2014. The client’s security clearance had been previously revoked by a DOHA Judge and we were retained to assist in the reapplication process following a mandatory 1 year “cooling off” period. We prepared a strong case for mitigation that highlighted the unusual circumstances surrounding the use that were unlikely to recur, the client’s abstinence from marijuana for 5 years, and the client’s demonstrated changes in lifestyle that were incompatible with marijuana use. Reapplication post-denial successful.

*Each case is unique. Representations of past success are not a guarantee, warranty, or prediction of future results.