Case No. VSA-0020, 25 DOE ¶ 83,008 (OHA Jan. 31, 1996)

Case No. VSA-0020, 25 DOE ¶ 83,008 (OHA Jan. 31, 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: August 9, 1995

Case Number: VSA-0020

This determination considers a Request for Review filed by the Office of Security Affairs (OSA) of the Department of Energy (DOE), concerning the eligibility of XXXXX (hereinafter referred to as "the individual") to hold a level "Q" access authorization under regulations set forth at 10 C.F.R. Part 710.<1> The DOE/XXXXX Operations Office (DOE/XXXXX) determined that the "Q" clearance previously granted to the individual should be suspended, and initiated the present administrative review proceeding. Pursuant to the individual's request, a hearing on this matter was held on XXXXX. Although the individual was in attendance, he did not participate in any meaningful way in the hearing. In an Opinion issued on May 12, 1995, the Hearing Officer did not make findings of fact or a recommendation concerning the individual's security clearance, but instead determined that because the individual did not participate in the hearing, the record in this proceeding should be closed, and the matter transferred to the Manager of DOE/XXXXX for a final determination as to whether the individual's access authorization should be restored. Personnel Security Hearing (Case No. VSO-0020), 25 DOE ¶ 82,756 (1995). In its Request for Review, OSA seeks to have this case remanded to the Hearing Officer for a recommendation as to whether the individual's security clearance should be restored.

I. Background

The individual has been employed by XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, a DOE contractor, since 1978. In 1994, the DOE/XXXXX Personnel Security Division began a re-investigation into the individual's background. As part of this re-investigation, the Security Division conducted a Personnel Security Interview (PSI) with the individual and initiated a DOE-sponsored evaluation of the individual by a board-certified psychiatrist. Following the issuance of the psychiatrist's report, the Director of the Personnel Security Division of DOE/XXXXX determined that information uncovered during the investigation was substantially derogatory and created questions regarding the individual's eligibility for continued access authorization. Accordingly, the DOE/XXXXX Manager suspended the individual's "Q" clearance and obtained authority from the Director of the Office of Safeguards and Security (OSS) to initiate an administrative review proceeding.

The administrative review proceeding was commenced by the issuance of a December 15, 1994 letter which notified the individual that information possessed by the DOE created a substantial doubt concerning his continued eligibility for a "Q" access authorization. I will hereinafter refer to this letter as the Notification Letter. In accordance with 10 C.F.R. § 710.21, the Notification Letter set forth in some detail the derogatory information in the possession of the DOE. This information pertained to paragraphs (f), (k) and (l) of the criteria for eligibility for access to classified matter or special nuclear material set forth at 10 C.F.R. § 710.8. Paragraph (f) defines as derogatory any information that the individual has "[d]eliberately misrepresented, falsified, or omitted significant information" from a Personnel Security Questionnaire (PSQ), a Questionnaire for Sensitive Positions or a Personnel Security Interview (PSI). Paragraph (k) refers to information indicating that the individual "[t]rafficked in, sold, transferred, possessed, used, or experimented with" illegal drugs. Paragraph (l) concerns information indicating that the individual 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 .... Such conduct or circumstances include, but are not limited to, criminal behavior, ...or violation of any commitment or promise upon which DOE previously relied to favorably resolve an issue of access authorization eligibility." The information cited in the Notification Letter under each of these criteria relates to the individual's admitted usage of illegal drugs and his attempts to conceal that usage.

In a letter to DOE/XXXXX dated January 23, 1995, the individual requested a hearing, but did not respond to the allegations set forth in the Notification Letter. Pursuant to 10 C.F.R. § 710.21(b)(5), the individual's request was therefore deemed a general denial of those allegations. A hearing was convened on XXXXXXXXXXXXX. During the hearing, counsel for DOE/XXXXX presented the testimony of a DOE personnel security analyst and of the psychiatrist who performed the individual's evaluation. The individual, who represented himself, did not make any arguments, submit any documents, present any testimony or other evidence or cross-examine either witness, despite being given repeated opportunities to do so by the Hearing Officer.

II. Opinion of the Hearing Officer

In the Opinion issued on May 12, 1995 ("Opinion"), the Hearing Officer determined that because the individual did not participate in any meaningful way in the hearing, the record in this proceeding should be closed and the matter transferred to the Manager of DOE/XXXXX for a decision as to whether the individual's access authorization should be restored. In making this determination, the Hearing Officer noted that there is no specific provision in the regulations set forth at 10 C.F.R. §§ 710.1 et seq. that addresses circumstances in which an individual requests and attends a hearing, but does not participate in that hearing. Accordingly, she reviewed Part 710 as a whole for guidance in this regard, and concluded that when an individual attends but does not participate in a hearing that he has requested, the Hearing Officer should not issue an Opinion providing a substantive review of the record, but should instead transfer the matter to the appropriate DOE Manager. The Hearing Officer cited 10 C.F.R. §§ 710.6, 710.21(b)(3) and (b)(6), and 710.25(e) as support for this determination.

Section 710.6 states that it is the responsibility of the individual to provide full and truthful answers to the DOE's relevant and material questions concerning his eligibility for access authorization. This section indicates that if the individual fails to cooperate fully and provide complete responses, the DOE may terminate access authorization or suspend processing of a request for access authorization. An individual aggrieved by one of these actions may then file a written appeal with the Director of the Office of Safeguards and Security (OSS Director). In the Opinion, the Hearing Officer noted that this provision applies to the investigative stage of the security clearance process, but stated that it is relevant here because it describes a set of circumstances under which there is no right to substantive review by a Hearing Officer.

Section 710.21 sets forth the proper elements of a Notification Letter, the means by which an individual receives notice of the derogatory information possessed by the DOE. Pursuant to paragraphs (b)(3) and (b)(6), the Letter must state that the individual has the option of having the questions concerning his access authorization resolved by the Manager, without a hearing, based on the existing information in the case, or by a Hearing Officer, who has convened a hearing for the purpose of affording the individual an opportunity to support his eligibility for a security clearance. In the Opinion, the Hearing Officer pointed out that these choices are mutually exclusive. She goes on to state that the "regulations do not appear to contemplate that an OHA Hearing Officer will review the matter in a case in which no new information is provided. In fact, the regulations indicate that, in a case in which no new information is submitted, it is the Manager who is to resolve the issue of access authorization." Opinion at 4.

The Hearing Officer found support for this reading of the regulations in Section 710.25(e). That section states that if the individual fails to appear at the time and place specified for the hearing, the record in the case will be closed and the matter returned to the Manager, who will then make a final determination regarding the individual's eligibility for access authorization. The Hearing Officer concluded that the individual's conduct at the hearing was so similar to a failure to appear that it should be accorded the treatment required by the regulations in the case of a failure to appear.

III. The OSA's Request for Review

In its Request for Review, the OSA contends that Section 710.21(b)(3) affords an individual a choice between having questions concerning his security clearance resolved by the Manager, without a hearing, or by "a personal appearance before a Hearing Officer (a 'hearing')." The OSA states that the individual in this proceeding chose review by a Hearing Officer by requesting, and appearing at, his hearing. The OSA argues that Section 710.25(e) is not applicable because it was intended to address only a situation in which an individual does not appear at his hearing. The OSA further states that the regulations do not require an individual to submit information, testify, or otherwise participate in a hearing. Consequently, the OSA contends that the individual is entitled to an impartial evaluation of the record and a recommendation concerning his security clearance made by a Hearing Officer. <2>

IV. Analysis

I have carefully reviewed the relevant regulations and the record in this proceeding, including the Hearing Officer's Opinion, and I respectfully disagree with the Hearing Officer's conclusion that the regulations, when taken as a whole, require that a security clearance matter be transferred to a DOE manager when an individual attends, but does not participate in, his hearing. Her conclusion was not an unreasonable one. However, I give more weight to the individual's decision to opt for a hearing. Therefore, for the reasons set forth below, I conclude that transferral of this matter to the DOE/XXXXX Manager would not further the regulations' intent to afford the individual a right to a hearing. Accordingly, I will remand this case to the Hearing Officer for findings of fact and a recommendation as to whether the individual's security clearance should be restored.

The Opinion correctly states that the regulations do not specifically address the circumstances of this case. However, in instances in which an individual has requested a hearing, the regulations governing this proceeding generally provide for the issuance of a written Opinion by a Hearing Officer in which that Officer evaluates the information in the record and makes a recommendation concerning the individual's eligibility for access authorization. Section 710.27(a) states that a "Hearing Officer shall carefully consider the record in view of the standards set forth herein and shall render an initial opinion as to whether the grant or restoration of access authorization to the individual would not endanger the common defense and security and would be clearly consistent with the national interest." (Emphasis added.) Section 710.27© provides that the "Hearing Officer shall make specific findings based upon the record as to the validity of each of the allegations contained in the notification letter and the significance which the Hearing Officer attaches to such valid allegations." (Emphasis added.) Once an individual has requested a hearing, the regulations set forth only two instances in which the administrative review proceeding involving that individual's security clearance may be transferred to a DOE Manager. Section 710.25(e) states that if the individual fails to appear at the time and place specified for the hearing, "the record in the case shall be closed and returned to the Manager, who will then make a final determination regarding the eligibility of the individual for DOE access authorization." Section 710.26(b) provides that if "the individual unduly delays the hearing, such as by failure to meet the deadlines set by the Hearing Officer, the record shall be closed, and a final decision shall be made by the Manager on the basis of the record in the case." Neither of these circumstances is present here. The individual appeared at the time and place specified for his hearing, and did not unduly delay that hearing.<3> Furthermore, I find that the regulatory provisions cited in the Hearing Officer's Opinion do not suffice to create a third circumstance under which security clearance matters may be transferred from a Hearing Officer to a DOE Manager. For purposes of clarity, I will address these provisions seriatim.

In the Opinion, the Hearing Officer cited Section 710.6 as supporting a transferral of this matter to the DOE/XXXXX Manager. As previously stated, this section sets forth an individual's obligation to provide complete and truthful answers to the DOE's questions concerning security matters. It indicates that if the individual fails to cooperate fully, the DOE may terminate access authorization or suspend processing of a request for access authorization, and that if the individual believes himself to be aggrieved by any such action, he may appeal the action to the OSS Director. As an initial matter, the individual's clearance was not suspended because he failed to answer questions posed by the DOE concerning security matters. The record indicates that the individual cooperated fully in the DOE's investigative efforts. Furthermore, this provision permits the individual to appeal an adverse action to the OSS Director; it does not address the circumstances under which the DOE may transfer an administrative review proceeding to a DOE Manager. I therefore find that Section 710.6 does not support a transferral of this matter to the DOE/XXXXX Manager.

The Hearing Officer also cited Section 710.21, paragraphs b(3) and b(6) in the Opinion. Those paragraphs state, in pertinent part:

(3) That the individual has the option to have the substantial doubt regarding eligibility for access authorization resolved in one of two ways:

(I) By the Manager, without a hearing, on the basis of the existing information in the case;

(ii) By personal appearance before a Hearing Officer (a "hearing").

...

(6)... if the individual so requests, a hearing will be scheduled before a Hearing Officer ... for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization.

10 C.F.R. § 710.21(b) (emphasis added.)

In accordance with these provisions, the individual in this proceeding opted to have the doubts regarding his eligibility for access authorization resolved "[b]y personal appearance before a Hearing Officer (a ?hearing')." Although the purpose of the hearing was to afford the individual an opportunity to submit information favorable to the reinstatement of his clearance, there is no requirement in the regulations that he do so.

In her Opinion, the Hearing Officer states that these provisions indicate that in a case in which no new information is submitted, it is the Manager who is to resolve the issue of access authorization. However, contrary to the assumption that is implicit in the Opinion, I find that new information was introduced into the record during the hearing. The psychiatrist who evaluated the individual provided testimony under oath concerning (I) the individual's loss of temper as evidence of faulty judgment (Hearing Transcript at 19), (ii) the scope of counseling that would be needed during any rehabilitation from drug or alcohol use (id. at 22-23), (iii) the guidelines that the psychiatrist used in his evaluation of the individual (id. at 23-24), (iv) the effect of the individual's panic attacks on his judgement and reliability (id. at 26), (v) the nature of rehabilitation for panic attacks (id. at 27-

32), and (vi), the relationship between lying and drug use (id. at 34-35). None of this information could be found in the record prior to the hearing. Because the Hearing Officer was able to observe the demeanor of the psychiatrist and the other witness, I conclude that she, and not the DOE/XXXXX Manager, is best suited to evaluate their testimony and render an opinion concerning the individual's security clearance. I therefore do not agree that Section 710.21, paragraphs b(3) and b(6) support a transferral of this case to the DOE/XXXXX Manager.

Finally, I disagree with the Hearing Officer's opinion that Section 710.25(e) justifies the transfer of this case to the Manager. As previously stated, this section is applicable in instances where the individual fails to appear at the hearing and the record is closed without the taking of additional testimony. However, the individual did appear at the hearing, additional testimony was taken, and new information was added to the record. Accordingly, I find that Section 710.25(e) is not applicable here.

The regulations set forth at 10 C.F.R. Part 710 do not specifically address the issue of whether the Director of OHA may remand a security clearance matter to a Hearing Officer. However, the preamble to these regulations states that "[i]n some instances, it may be more efficient for the OHA Director to develop the record on minor factual matters; in other instances, it may be better to remand a case to the OHA Hearing Officer for supplementing the record on matters of greater complexity." 59 Fed. Reg. 35184 (July 8, 1994). In view of the importance of the Hearing Officer's recommendation in the administrative review process and the fact that the Hearing Officer is best able to evaluate the testimony offered at the Hearing, I conclude that this matter should be remanded to the Hearing Officer for the issuance of a recommendation concerning the individual's eligibility for access authorization.

V. CONCLUSION

By requesting a hearing, the individual chose to have the substantial doubt regarding his eligibility for access authorization resolved by an impartial third party, i.e, an OHA Hearing Officer. I am unwilling to negate the individual's choice in the absence of a specific provision in the regulations requiring a transfer of this matter to the DOE/XXXXX Manager. I therefore remand

this proceeding to the Hearing Officer for findings of fact and a recommendation concerning the individual's eligibility for access authorization. The Hearing Officer should issue an Opinion within thirty days of the date of this Opinion.

George B. Breznay

Director

Office of Hearings and Appeals

Date:

[On May 8, 1996, a final determination was made by the Director, Office of Security Affairs, to revoke the individual's Department of Energy Access Authorization.]

<1>1/ A level "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 access authorization, security clearance, or "Q" clearance.

<2>2/ The individual was provided an opportunity to submit comments concerning the OSA's Request for Review. No such comments were received.

<3> 3/ The individual missed deadlines that were set for the submission of documents and the submission of a witness list. There is no indication, however, that the hearing was delayed as a result of these missed deadlines.