Case No. VSA-0014, 25 DOE ¶ 83,002 (OHA Aug. 4, 1995)

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* 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 XXXXX's.

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Request for Review

Case Name: Personnel Security Review

Date of Filing: June 7, 1995

Case Number: VSA-0014

This determination considers a Request for Review filed by XXXXX (hereinafter referred to as "the individual") concerning his eligibility to hold a level "Q" access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." <1> The individual's access authorization was suspended at the direction of the Manager of the Department of Energy's XXXXX Operations Office (DOE/OR) pursuant to the provisions of Part 710. The individual requested administrative review of this action before a Hearing Officer, and on May 8, 1995, the Hearing Officer assigned by the DOE Office of Hearings and Appeals issued an Opinion that the individual's access authorization should not be restored. On June 7, 1995, the individual filed a Request for Review of the Hearing Officer's Opinion pursuant to 10 C.F.R. § 710.28. In the

Request for Review, the individual requests that the Opinion be reviewed, and ultimately that the access authorization be restored.

I. Background

The individual has been employed by XXXXX, the DOE contractor that operates the XXXXX Plant, in XXXXXXXXXXXXXXXXXXXX, for the last XXXXX years. During this time, the individual received a "Q" clearance from the DOE enabling him to work at the facility. In early 1994, the individual reported his recent arrest for aggravated assault to the DOE/OR. This revelation prompted the DOE to conduct a personnel security interview with the individual. Information gleaned during the interview caused the DOE/OR to request a mental evaluation of the individual by a board-certified psychiatrist (hereinafter referred to as the DOE psychiatrist). Following the issuance of the DOE psychiatrist's evaluation, the Director of the Personnel Security Division of the DOE/OR determined that information uncovered as the result of its inquiry into the circumstances surrounding the individual's arrest, coupled with other information already contained in the individual's Personnel Security file, was substantially derogatory and created questions regarding the individual's eligibility for access authorization. Accordingly, the DOE/OR's Manager suspended the individual's level "Q" access authorization and obtained authority from the Director of the Office of Safeguards and Security to initiate an administrative review proceeding.

On November 3, 1994, the DOE/OR commenced the administrative review proceeding by issuing a letter to the individual notifying him that the DOE possessed information which created a substantial doubt concerning his continued eligibility for a "Q" access authorization. See Letter from Grover Smithwich, Deputy Manager, DOE/OR, to the individual (November 3, 1994) (hereinafter this letter will be referred to as the "Notification Letter"). The Notification Letter specifically identified the derogatory information at issue. It explained how that information came within the purview of the criteria set forth in 10 C.F.R. §§ 710.8 (h), (j), and (l).

Criterion (h) concerns information which reveals that a person has:

[a]n illness or mental condition of a nature which, in the opinion of a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist, causes, or may cause, a significant defect in judgment or reliability.

10 C.F.R. § 710.8(h).

Criterion (j) describes information that a person has:

[b]een, or is, a user of alcohol habitually to excess, or has been diagnosed by a board- certified psychiatrist, other licensed physician or a licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse.

10 C.F.R. § 710.8(j).

Criterion (l) pertains to information evidencing that a person has:

[e]ngaged in any unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable, or trustworthy; or which furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress which may cause the individual to act contrary to the best interests of the national security. Such conduct or circumstances include, but are not limited to, criminal behavior, a pattern of financial irresponsibility, or violation of any commitment or promise upon which DOE previously relied to favorably resolve an issue of access authorization eligibility.

10 C.F.R. § 710.8(l).

In addition, the Notification Letter informed the individual of his right under the regulations to file a written response to the derogatory information and to request a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his continued eligibility for access authorization. On November 8, 1994, the individual filed with the Manager of the DOE/OR a request for a hearing concerning this matter, together with a response to the allegations set forth in the Notification Letter. The DOE/OR transmitted the individual's hearing request to the OHA Director pursuant to the provisions of 10 C.F.R. § 710.25(a) on December 7, 1994. The hearing was convened in XXXXX, Tennessee, on XXXXX. See 10 C.F.R. §§ 710.25(e), and (g).

At the hearing, the individual was represented by an attorney and testified on his own behalf. In addition, the individual called the following four witnesses to testify on his behalf: a clinical psychologist employed by his DOE contractor (hereinafter referred to as the psychologist); his girlfriend; his supervisor; and a union steward, who was also a co-worker. The DOE/OR presented only one witness at the hearing, the DOE psychiatrist.

A procedural matter of significance occurred at the hearing which bears on an issue to be reviewed here. The Hearing Officer ruled at the conclusion of the hearing that it would be useful to take a post-hearing deposition of a psychiatrist who had treated the individual on a number of occasions prior to the hearing. (Hereinafter, he will be referred to as the individual's psychiatrist.)

It was the opinion of the Hearing Officer that the best evidence concerning the individual's rehabilitation prospects might reside with the individual's psychiatrist, and the parties agreed to attempt to secure that deposition no later than April 7, 1995. One month after the hearing, however, the individual's attorney advised that it would be impossible to depose that psychiatrist, as he was retiring from his medical practice and relocating to Alaska. The individual's counsel then requested permission for the individual to be seen by another psychiatrist, arguing that the new psychiatric examination would provide a complete record upon which the Hearing Officer could render an opinion concerning the individual's access authorization. She denied the request, finding that only the individual's psychiatrist might have prior first hand knowledge about the individual's medical condition which might be of value in assessing the individual's medical state at the time of the hearing, and his prospects for rehabilitation. For this reason, the Hearing Officer concluded that no other psychiatrist could stand in the stead of the individual's psychiatrist.

II. Opinion of the Hearing Officer

On May 8, 1995, the Hearing Officer issued the Opinion setting forth her determination that the Individual's Q access authorization should not be restored. This determination was based on the following findings. The Hearing Officer found that the individual was alcohol dependent, and that the DOE/OR therefore correctly invoked 10 C.F.R. §710.8(j) as a basis for suspending the individual's access authorization. She then found that the individual had not achieved rehabilitation from his alcohol dependence. May 8, 1995 Hearing Officer Opinion (hereinafter cited as Opinion) at 10.

The Hearing Officer also determined that in suspending the individual's Access Authorization, the DOE/OR properly relied on 10 C.F.R. §710.8(h), the criterion concerning emotional, mental and personality disorders. The Hearing Officer stated that there is no dispute that the individual suffers from depression. Opinion at 13. She was not convinced that the individual's mental health problems were in remission, nor that he would continue to take his anti-depressant medication for this condition on a regular basis.

Finally, the Hearing Officer found that there was sufficient evidence to support the DOE/OR's contention that the individual had engaged in unusual conduct, such as criminal behavior, which tends to indicate that a person is not honest, reliable or trustworthy. 10 C.F.R. § 710.8(l). Opinion at 14. This conclusion was based on the Hearing Officer's finding that on one occasion the individual consumed alcohol to excess and then in an inebriated state drove a motor vehicle and shot his brother with a 12-gauge shotgun.

In light of the above findings the Hearing Officer stated that she could not find that restoring the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, she found that the access should not be restored.

III. The Request For Review

The Request for Review alleges three areas of error in this proceeding. First, it states that it was an error to close the record without testimony or a statement from a psychiatrist chosen by the individual. Secondly, the Request contends that it was an error to fail to provide the individual with an opportunity to be considered as a candidate for the Employee Assistance Program Referral Option (EAPRO). Thirdly, the Request alleges error by the Hearing Officer in failing to give great weight to the steps taken by the individual to resolve his alcohol and depression problems.

A. It was Not Error to Close the Record Without Psychiatric Testimony of the Individual's Choosing

I find no merit in the contention that the Hearing Officer was required to hold open the record in the proceeding to allow the individual to submit the testimony of a psychiatrist of his choosing. At the hearing, the Hearing Officer made a determination that some additional evidence might be useful to provide an update of the individual's mental status. Transcript of Hearing at 123 (hereinafter cited as Tr.). The Hearing Officer, the attorney for the individual and the DOE Counsel discussed at length what type of information might be relevant and useful. Tr. at 123-147. This discussion centered solely on the taking of depositions of medical experts who at that time were familiar with the individual. Ultimately, there was general agreement that if additional testimony were to be admitted, it should be from the very psychiatrist who had seen the individual on several occasions. There was no discussion regarding permitting the individual to present new evidence "from a psychiatrist chosen by the individual."

The record in this matter indicates that the individual's attorney, upon learning that she would be unable to obtain the deposition of the agreed-upon psychiatrist, offered to "have the individual seen by another psychiatrist." See Letter of March 16, 1995. Thus, the attorney seems to have concluded that if the testimony of the individual's psychiatrist could not be obtained, it would be appropriate to renegotiate the arrangement made at the hearing. This was certainly not the agreement reached at the hearing. At the hearing, the Hearing Officer specifically stated that if the individual's psychiatrist "was not available for whatever reason, the record will close upon her notification to me that [his] testimony will not supplement the record." Tr. At 147. The contention that the Hearing Officer was in error because she declined to renegotiate the agreed upon course of action simply does not withstand scrutiny. <2>

The Request for Review further states that "it is the responsibility of the Hearing Examiner to see that the record is fully developed." Request for Review at 2. The Request then contends that since there was no information in the record at the time of the hearing concerning the individual's current mental status, it was an error not to allow the individual to submit additional information regarding this issue after the close of the hearing. Using this logic, the individual's attorney claims that additional information regarding her client's current mental status submitted during the review phase of this proceeding must be considered. See Note 2 supra.

The Request does not cite any section providing that it is the Hearing Officer's responsibility to see that the record is fully developed. I see no provision enunciating such a responsibility. Section 710.26(j) states that the "Hearing Officer shall endeavor to obtain all the facts that are reasonably available in order to arrive at findings." This Section does not suggest, however, that it is the Hearing Officer's responsibility to insure that the record is fully developed, or that a Hearing Officer must allow into the record any potentially relevant fact at any time in the proceeding, even after a hearing. To the contrary, this section simply means that the Hearing Officer must try to obtain relevant facts that are reasonably available.

In this case, the Hearing Officer was mindful of the delay to the closure of the proceeding that could result from attempts to supplement the record. Tr. at 141, 144-147. She made a determination as to what additional information it was reasonable to try to obtain in view of the legitimate timing concerns. Based on her enunciated concerns and consideration of all the relevant facts, she properly limited the scope of the post-hearing investigation. I find no error in her judgment.

Further, the assertion in the Request for Review that the Hearing Officer bears the responsibility of ensuring that the record is fully developed misperceives the burden of proof in these cases. It is true that the Hearing Officer may ask questions to assure the fullest possible disclosure of relevant and material facts. 10 C.F.R. §710.26(e). However, the primary responsibility for presenting a defense to the allegations contained in the Notification Letter rests with the individual. Under Section 710.26(a) the individual "is responsible for producing witnesses in his own behalf, including requesting the issuance of subpoenas, if necessary, or presenting other proof before the Hearing Officer to support his defense to the allegations contained in the Notification Letter." It was thus the duty of the individual and his attorney in this case to assess the need for the testimony of a psychiatrist and ensure his presence by requesting the issuance of a subpoena. The fact that the Hearing Officer was willing to accord the individual a small additional window of opportunity to supplement the record in this case does not change that burden. In sum, it is the obligation of each party to identify the appropriate witnesses, to ensure their appearance, and to examine them in the most effective manner. The Hearing Officer is not expected to assume this burden.

Finally, while the Part 710 regulations do permit the introduction of written evidence as part of the hearing process, a key focus of the hearing itself is to receive the oral testimony of witnesses. This is evident in the detail devoted to the presentation of witnesses in those regulations. E.g., 10 C.F.R. § 710.26(a), (c), (d), (e), (h), (i); § 710.27(b). Oral testimony of witnesses at the hearing is favored because it provides the Hearing Officer with the opportunity to view the demeanor of the individuals, listen to their examination and cross examination, pose questions and thereby judge their credibility. 10 C.F.R. § 710.27(b). By contrast, submission of the written testimony of witnesses after the hearing is less desirable because it does not permit the Hearing Officer this type of involvement and interaction. Therefore, as a general rule, parties involved in OHA personnel security review hearings should be prepared to present oral testimony of witnesses at the hearing.<3>They should not expect to receive the unusually generous treatment, holding open the record for submission of written testimonial evidence, that the Hearing Officer accorded the individual's attorney in this case. Except in extraordinary cases, parties should assume that the opportunity to present testimonial evidence will close at the end of the hearing. <4>

B. It was Not Error to Fail to Provide the Individual with the EAPRO Opportunity

The Request for Review also alleges that it was an error not to provide the individual with the opportunity to be considered as a candidate for the Employee Assistance Program Referral Option (EAPRO). The Request for Review claims in this regard that given the individual's progress, he is an excellent candidate for this program.

The EAPRO was established in July 1993 as an alternative to the hearing process for selected personnel security cases involving substance abuse. It is a program designed to permit employees to complete their effort at rehabilitation or reformation, instead of having their case referred for processing under 10 C.F.R. Part 710 procedures. Employees who accept the EAPRO as an alternative to the hearing process agree to subject themselves to a closely monitored program of total abstinence from all psychoactive substances. They also agree to the revocation of their security clearances should they violate the terms of the program, and to forfeit their right to a hearing under Part 710.

However, these regulations do not authorize Hearing Officers to make decisions with regard to EAPRO. The determination whether to offer the EAPRO to an employee is made by the Office of Security Affairs on the basis of its own guidelines. Under current DOE procedures, its decision in the matter is not subject to review by the OHA Hearing Officer. Accordingly, I must reject the assertion that it was an error by the Hearing Officer to fail to offer the individual the EAPRO.

C. The Hearing Officer Gave Appropriate Weight to the Individual's Rehabilitative Efforts

The Request for Review claims that it was error not to give great weight to the steps taken by the individual to resolve his alcohol and depression problems. The Request states that the individual has not drunk any alcohol since February 8, 1994, a period of 16 and one-half months. The Request indicates that the individual takes medication to control his depression, participates in a program to increase his skills and is engaged in a supportive personal relationship.

As an initial matter, the Request does not state why it was an error not to accord great weight to the individual's efforts, or why those efforts are even entitled to great weight. After reviewing the record, I see no reason why, as a matter of law, these efforts, commendable as they are, should be accorded great weight.

Further, there is no question that the Hearing Officer fully considered the efforts by the individual to rehabilitate himself. Opinion at 9-10. The Hearing Officer evaluated these efforts and the testimony of the individual's girlfriend and a co-worker. She then found that the testimony of two experts at the hearing, the DOE psychiatrist and the psychologist, was more convincing than that of a lay person. Opinion at 9-10. She concluded that the testimony of the experts, who had treated thousands of persons with problems like those of the individual, was entitled to more weight than that of personal acquaintances of the individual, who might be less objective about his progress.

Under the regulations, the Hearing Officer is responsible for considering the demeanor of the witnesses, the probability or likelihood of the truth of their testimony, and their credibility. 10 C.F.R. §710.27(b). The Opinion indicates that the Hearing Officer in this case gave due consideration to the weight to be accorded the testimony of the various witnesses. I can find no basis for overturning her judgment as to the weight to be accorded the testimony of the witnesses in the instant case.

As stated above, the Request also points out that 16 and one-half months have passed since the individual last drank any alcohol. The psychologist who testified at the hearing provided his opinion that the individual requires 18 months of sobriety before he can be considered rehabilitated. Tr. at 48-49. Thus, there is an implication raised here that by virtue of the passage of time since the hearing date, the individual has all but reached the period necessary to complete rehabilitation. Even if I were to accept the eighteen-month time frame posited by the psychologist, I do not believe that it is proper to consider the review pendency period in determining whether sufficient time has passed for rehabilitation to take place. <5> As a rule, it is simply not appropriate to use the time that elapses during the ongoing review proceeding as an opportunity to achieve rehabilitation.

IV. CONCLUSION

As discussed above, I concur with the Opinion of the Hearing Officer. Pursuant to 10 C.F.R. § 710.28(d), I am not convinced, based upon a review of the record and having considered the specific issues raised in the Request for Review, that restoring the access authorization of the individual would not endanger the common defense and security and would be clearly consistent with the national interest.

The regulations specify that within 30 days of receipt of this opinion, the Director, Office of Security Affairs, will make a final determination regarding restoration of the individual's access authorization based upon a complete review of the record. 10 C.F.R. § 710.28(e). The Director, Office of Security Affairs, shall through the Director, Office of Safeguards and Security, inform the individual and his counsel in writing of the final determination, and provide a copy of the present opinion. Copies of the correspondence shall be provided to the Director, Office of Hearings and Appeals, the Manager, DOE Counsel and any other party. In the event of an adverse determination, the correspondence shall indicate the findings by the Director, Office of Security Affairs, with respect to each allegation contained in the Notification Letter. 10 C.F.R. § 710.28(f).

George B. Breznay

Director

Office of Hearings and Appeals

[On September 15, 1995, the Director, Office of Security Affairs, made a final determination to revoke the individual's Department of Energy access authorization.]

<1>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 Opinion as access authorization, security clearance, or "Q" clearance.

<2>2/ The attorney for the individual has submitted a letter dated June 8, 1995, from the psychologist who testified at the hearing regarding the individual's mental status. At the time of the hearing this psychologist had last seen the individual in July of 1994. The letter indicates that the psychologist believes that the individual is making progress. However, in view of my determination that the record in this case was properly closed as of April 4, 1995, I will not give any consideration here as to the substance of the claims in the June 8 letter. For similar reasons I will not consider the May 22, 1995 affidavit of the individual describing his current mental status and his continued abstinence from alcohol.

<3>3/ It is true that submission of written testimony of witnesses is permissible prior to the hearing. However, this type of evidence, which also has the infirmities of not being subject to cross examination or involvement by the Hearing Officer, may well be accorded less weight in the review process because of these factors. Further, unlike written testimony submitted after a hearing, written testimony submitted before a hearing is at least subject to discussion, comment, and testing at the hearing. Moreover, when submitted before the hearing, written testimony does not have the disadvantage of delaying the closure of the record.

<4>4/ A procedure exists under Section 710.29 for admitting evidence after the record has been closed. That provision does not appear to have any application here, and in any case was not referred to or relied upon by the individual or his attorney.

<5>5/ It was the DOE psychiatrist's view that the individual requires 24 months of sobriety before he can be considered rehabilitated. Opinion at 6.