Case No. VSA-0018, 25 DOE ¶ 83,006 (OHA Aug. 30, 1996)

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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

Opinion of the Director

Case Name: Personnel Security Review

Date of Filing: June 28, 1995

Case Number: VSA-0018

This Opinion concerns the eligibility of XXXXX ("the individual") for continued "Q" access authorization under the regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material."<1> The Department of Energy's (DOE) XXXXX Operations Office (DOE/XXXXX) suspended the individual's access authorization under the provisions of Part 710. The individual subsequently requested a hearing before a DOE Hearing Officer pursuant to 10 C.F.R. § 710.21. On May 22, 1995, the Hearing Officer issued an Opinion recommending against restoring the individual's access authorization. On June 28, 1995, the individual filed a request for review of the Hearing Officer's Opinion pursuant to 10 C.F.R. § 710.28. This Opinion considers the primary questions raised by the request for review, which are whether, on the basis of the regulations and the record before me, the individual's access authorization should be restored or in the alternative, whether interim relief should be granted.

I. Background

The provisions of 10 C.F.R. Part 710 govern the eligibility of individuals who are employed by or are applicants for employment with DOE or its contractors, agents, DOE access permitees, and other persons designated by the Secretary of Energy for access to classified matter or special nuclear material. Part 710 generally provides that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.7(a).

On December 22, 1994, the DOE/XXXXX issued a Notification Letter to the individual informing him that information in the possession of DOE created a substantial doubt concerning his continued eligibility for access authorization. The Notification Letter specified two areas of derogatory information: (i) the individual has a mental condition, i.e., alcohol abuse, which, in the opinion of a board-certified psychiatrist causes or may cause a significant defect in judgment or reliability (see 10 C.F.R. § 710.8(h)["Criterion H"]) and (ii) the individual has been diagnosed by a board-certified psychiatrist as suffering from alcohol abuse (see 10 C.F.R. § 710.8(j) ["Criterion J"]). The Notification Letter concluded that since the individual had failed to provide adequate evidence showing that he had been rehabilitated or reformed, his access authorization would continue to be suspended. The letter also informed the individual of his right to a hearing on these issues under Part 710.

The individual requested a hearing in order to resolve the issue of his eligibility for access authorization. That hearing was held on April 11, 1995. The individual, his father and a counselor with the Employee Assistance Program (EAP) testified on behalf of the individual. A DOE Personnel Security Specialist and XXXXX, M.D., the board-certified psychiatrist who had evaluated the individual at DOE/XXXXX's request, testified on behalf of the DOE.

At the hearing, the DOE presented evidence that the individual has habitually used alcohol to excess and that he has been charged with driving while intoxicated (DWI) or similar alcohol-related offenses six times in his life, despite stating numerous times in Personnel Security Interviews (PSIs) that he would no longer drink and drive. The individual received two DWI charges in the last two years, including the most recent DWI charge 37 days after his May 1994 PSI. The individual's primary defense was that because he had stopped drinking five months prior to the hearing and begun individual counseling sessions with the EAP counselor, he has been successfully rehabilitated.

After considering all relevant information, the Hearing Officer issued an Opinion on May 22, 1995, in which he found that the individual had: (1) engaged in a long-term pattern of alcohol abuse; (2) been diagnosed by a DOE-sponsored psychiatrist as suffering from alcohol abuse, an illness or mental condition which causes or may cause a significant defect in his judgment or reliability; and (3) failed to establish that he was rehabilitated or reformed. See Personnel Security Hearing, Case No. VSO-0018, 25 DOE ¶ 82,758 (1995) (the May 22 Opinion). Accordingly, the Hearing Officer found that the individual's access authorization should not be restored since he was unable to conclude that such restoration would not endanger the common defense and security and would be clearly consistent with the national interest. Id.

On June 28, 1995, the individual's request for review was received by the Office of Hearings and Appeals (OHA). On July 17, 1995 the individual's statement of issues ("statement") was received by the Office of Security Affairs, and on July 27, 1995 the statement was received by the OHA. The Office of Security Affairs (OSA) declined an opportunity to respond to the individual's request for review. See Memorandum from Edward J. McCallum, Director, Office of Safeguards and Security, to Director, OHA (July 31, 1995). On August 1, 1995, the administrative record of this proceeding was closed.

II. Analysis

Under 10 C.F.R. § 710.28(a), either the Office of Security Affairs or the individual involved may file a request for review of a Hearing Officer's opinion with the OHA Director. In considering requests for review, I will generally confine my inquiry to those issues raised in the statement or response. The regulations provide that, under limited circumstances, I may consider additional information which was not before the Hearing Officer. 10 C.F.R. § 710.28(c); 10 C.F.R. § 710.29(b)(2). In the present case, neither party has submitted any additional evidence or otherwise disputed the factual basis of the Hearing Officer's Opinion, with the minor exception of the error described in Footnote 3 of this Opinion. Instead, the only issues before me are the contentions advanced by the individual in his request for review and statement. Before I discuss the substantive issues presented, there are two matters raised by the individual that should be addressed first.

Apparently in response to implications arising from statements by the DOE Counsel during the hearing, the individual now asks that he be considered for a position as plumber at DOE/XXXXX and be granted an "L" level access clearance.<2> Although it is not within my jurisdiction to grant either request, I must correct the individual's belief that a higher level of scrutiny is used to determine access eligibility for security guards or others needing "Q" clearances. There is no "sliding scale" under the Part 710 regulations based on the type of job an individual holds; the individual's ability to obey all pertinent security laws and regulations to the highest degree possible is at issue here. That ability is evaluated without regard to the extent of which the employee has an opportunity to endanger national security. Moreover, my analysis of the individual's eligibility to hold a security clearance is precisely the same for either access level. The procedures and criteria of Part 710 refer to all access holders both "Q" and "L". Accordingly, even if I could grant either request, my analysis and ultimate conclusion would not change.

The individual next asserts that the Hearing Officer failed to mention that the individual had avowed that because of his patriotism he would never be a security risk. This contention is false. The May 22 Opinion does in fact note the individual's statement regarding his patriotism, see 25 DOE at 85,558; May 22 Opinion at 9 (citing Hearing Tr. at 141). However, I infer that the Hearing Officer considered that statement to be not as significant as the evidence directly bearing on the question of the individual's alcohol use. I note that while clearance holders must be loyal to the United States, see Executive Order 12968 Section 3.1(b), 60 Fed. Reg. 40,245 (August 7, 1995), the individual's patriotism is not at issue here. Instead, we focus on his eligibility for a security clearance and whether he could, inadvertently or otherwise, disclose classified material while under the influence of alcohol. Nevertheless, under the circumstances of the present case, the individual should not consider the Hearing Officer's adverse recommendation to be a negative reflection on his patriotism; as Section 7 of Executive Order 10865, 3 C.F.R. 398 (1959-1963) states, "[a]ny determination under this order adverse to an applicant shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned."

A. Whether Dr. XXXXX Possessed a Sufficient Basis Upon Which to Evaluate the Individual

The individual asserts that the 45 minutes which Dr. XXXXX spent evaluating him is not a sufficient time period in which to diagnose his psychological condition. Although I agree the length of time a witness has spent with an individual can be important in determining the weight given his or her testimony, I find that in this case, Dr. XXXXX had a sufficient basis on which to evaluate the individual. The doctor, prior to his diagnosis, reviewed the individual's case file, which included his PSIs from 1985 and 1994, interviews with his friends, co-workers and family, and the individual's personnel security questionnaires. See August 1, 1994 Letter from Dr. XXXXX to XXXXX, Acting Chief, Personnel Security Operations Branch, DOE/XXXXX (Psychiatric Evaluation). During the evaluation, the psychiatrist asked the individual about his drinking patterns, relationship problems, family history and social life, as well as determined his mental status (i.e., mental functioning or capacities, see Hearing Tr. at 38-41). Within Dr. XXXXX's detailed 10-page summary of the July 22, 1994 evaluation, he carefully analyzed the reasons he finds the individual to be an alcohol abuser, and explained how the individual meets each of the criteria for alcohol abuse found in the Diagnostic and Statistical Manual of Mental Disorders, Third Edition, Revised (in effect at the time of the evaluation). Dr. XXXXX further explained why, in his opinion, the individual is not yet rehabilitated or reformed. From all of these factors, I find that Dr. XXXXX had a sufficient basis upon which to make his diagnosis.

B. The Individual's Alcohol-Related Arrests

The individual makes several arguments with respect to his six alcohol-related arrests (including one arrest for underage possession of alcohol). He notes that because he was a minor at the time of his 1978 DWI arrest and conviction, this incident is not part of his criminal record. He further states that neither the 1987 DWI nor the 1993 DWI resulted in convictions <3>and that the revocation of his driver's license stemming from the 1994 DWI has ended, although he is still on probation. I find the individual's distinctions carry little weight in reaching my conclusions in this case. He has admitted to driving while legally intoxicated in the 1978, 1987 and 1993 incidents. See 1994 PSI Tr. at 13, 35-36, 47. Furthermore, in response to Dr. XXXXX's opinion that the high number of DWI arrests indicates a substantial likelihood that the individual drove while intoxicated many other times but was not apprehended, see Hearing Tr. at 63, 66, the individual admitted for the first time that he has indeed driven while intoxicated other times but was not apprehended. See Hearing Tr. at 143. Most important, the DOE's concern is not whether a legal conviction resulted from any of these many incidents, but that the individual's condition of alcohol abuse has caused him to disregard, with unfortunate frequency, laws meant to protect public health and safety for the past 17 years. Accordingly, I find that the Hearing Officer was correct to consider each of the individual's alcohol-related incidents as significant derogatory information.

C. Whether the Individual is Rehabilitated or Reformed

The individual asserts that the Hearing Officer failed to state that the individual had stopped drinking. I take this assertion as a general challenge to the Hearing Officer's finding that rehabilitation had not occurred. I find that the Hearing Officer did consider that the individual had begun abstaining, see 25 DOE at 85,555; May 22 Opinion at 5-6 (citing Hearing Tr. at 107-08) and 25 DOE at 85,558; May 22 Opinion at 9 (citing Hearing Tr. at 148), but rightly found it to be more important that neither expert concluded that the individual was yet rehabilitated, due to the insufficient length of the individual's sobriety and the type of counseling he was receiving. See 25 DOE at 85,558-59; May 22 Opinion at 8-9; see also Hearing Tr. at 52-53, 124, 130. The individual has presented no new evidence to dispute either expert's findings, and, at the date of this writing, still fails to meet the one year time period for rehabilitation that the EAP counselor recommended and the two year period Dr. XXXXX prescribed.<4> Other important factors upon which the Hearing Officer relied were the recency of the individual's DWI arrests in 1993 and 1994, and the individual's poor judgment as shown by his continuing to drink to excess and drive while intoxicated even after knowing that DOE/XXXXX was considering suspending his clearance. The individual has made no attempt to challenge any of those significant reasons for suspending his security clearance. Accordingly, after considering the record before the Hearing Officer in the light most favorable to the individual, I find that he has not presented adequate evidence of rehabilitation.

D. The Individual's Request for Interim Relief

In his request for review and statement, the individual requests further time to show that his past conduct which led to the suspension of his security clearance will not occur again. He also states his unhappiness at having to work many miles from his family.<5> While it is not clear exactly what action the individual is requesting, I assume that he seeks either a conditional reinstatement of his "Q" clearance at DOE/XXXXX or for the OHA Director or the OSA Director to wait to make a final decision regarding his clearance, until he can meet some minimum period of abstinence. I am unable to grant any kind of interim relief. The concept of staying access authorization actions was specifically rejected on national security grounds in the Preamble of the Federal Register Notice announcing the recent amendments to the DOE security clearance regulations. 59 Fed. Reg. 35178, 35179 (July 8, 1994). With respect to interim relief generally, I have only limited discretion under 10 C.F.R. § 710.28 to allow the record to remain open in order to investigate any statement in the request for review or to obtain information that is relevant to the review from either the individual or the OSA. Clearly, neither the conditional reinstatement of individuals who may be serious national security risks or the allowance of time for them to establish a sufficient period of abstinence from substance abuse, is the sort of investigation contemplated by the DOE in this provision. See Personnel Security Hearing, 24 DOE ¶ 82,753 at 85,531 (1995)(appeal pending).

Furthermore, to grant the type of interim relief requested, would create a situation where the process could be prolonged indefinitely, thereby resulting in a waste of administrative resources and possible compromise of national security. It is for these reasons that the DOE elected not to provide a regulatory provision for granting stays or conditional reinstatements and established time limits for each step of the administrative review process. See, e.g., 10 C.F.R. § 710.9; § 710.21(a); § 710.21(b)(4); § 710.25(g) § 710.27(e). The purpose of the administrative review procedures is to allow a period within which a disinterested person can hear testimony, review the evidence and make findings and for those findings to be reviewed. Any extension of time during those procedures must be consistent with that purpose. Accordingly, it is my opinion that the individual's request for interim relief should be denied.

III. Conclusion

I have thoroughly considered the record of this proceeding, including the submissions of the parties and the evidence presented and the testimony of the witnesses at the April 11, 1995 hearing convened in this matter. In resolving the question of the individual's eligibility for access authorization, I have been guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c). After due deliberation, it is my opinion that the individual's access authorization should not be restored since I am unable to conclude that such restoration would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a).

As explained in this Opinion, I find that the individual has not established that he is rehabilitated or reformed. I therefore am not convinced that restoring his access authorization would not endanger the common defense and security and would be consistent with the national interest. Nor is there a basis on which to grant him the alternate relief he has requested. Accordingly, it is my opinion that his access authorization should not be restored, and his request for interim relief should be denied.

George B. Breznay

Director

Office of Hearings and Appeals

[On September 21, 1995, a final determination was made by the Director, Office of Security Affairs, to revoke the individual's Department of Energy access authorization.]

<1>/ A "Q" access authorization is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will be referred to variously in this Opinion as an access authorization, security clearance, or "Q" clearance.

<2>/ In her closing statement, DOE Counsel requested that the Hearing Officer especially consider that the individual's position of security guard is considered "highly sensitive," because guards have access to plutonium and uranium, as well as weapons. Further, in the DOE Counsel's questioning of the individual, she elicited the information that all security guards must hold a "Q" level clearance. Hearing Tr. at 147-149.

<3>/ As the individual pointed out, there is no evidence in the record to support the Hearing Officer's statement that the 1993 DWI resulted in a conviction, 25 DOE at 85,554; May 22 Opinion at 3. According to the individual, this charge was dismissed. See 1994 PSI Tr. at 43.

<4>/ According to the individual's testimony, he did not begin to abstain from alcohol use until approximately November 1994, Hearing Tr. at 148, several months after the DOE psychiatrist and the EAP counselor recommended he stop. Hearing Tr. at 126.

<5>/ According to the individual's statement, his new position is 270 miles further from his home than his previous position at DOE/XXXXX.