Case No. VSA-0121, 26 DOE ¶ 83,014 (OHA July 14, 1997)

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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 XXXXXXX’s.

July 14, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: May 30, 1997

Case Number: VSA-0121

This Opinion determination considers a Request for Review filed by XXXXX (hereinafter referred to as "the individual") concerning his eligibility to retain an access authorization. The Department of Energy (DOE) regulations governing this matter are set forth at 10 C.F.R. Part 710, and are entitled “Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.(1)

I. Background

This case concerns the restoration of the individual’s access authorization. The facts leading to the suspension of the individual’s clearance are as follows. In April 1996, the individual voluntarily entered a substance abuse treatment facility where he was diagnosed by a board-certified psychiatrist as suffering from alcohol abuse and crack cocaine dependency. In May 1996, the DOE conducted a Personnel Security Interview (PSI) during which the individual revealed that he used crack cocaine “a couple of times” in 1990 and then regularly beginning in January 1995. The individual also admitted that he had lied on a Questionnaire for Sensitive Positions (QSP), in which he responded negatively to

the question regarding whether he had used any illegal drugs in the last five years. The individual also stated that prior to obtaining substance abuse treatment in April 1996, he routinely consumed a pint of vodka every weekend.

After the PSI, the DOE suspended the individual’s security clearance and, based on the facts described above, issued a Notification Letter to the individual. The Notification Letter stated that the DOE Office possessed derogatory information indicating that the individual:

· has been or is, a user of alcohol habitually to excess and has been diagnosed by a...licensed physician...as suffering from alcohol abuse, which is derogatory information under 10 C.F.R. § 710.8(j) (Criterion J);

· deliberately misrepresented falsified or omitted significant information from...a Questionnaire for Sensitive Positions...a personnel security interview, written or oral statements made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization, which is derogatory information under 10 C.F.R. § 710.8(f) (Criterion F);

· [e]ngaged in unusual conduct or is subject to 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 him to act contrary to the best interests of the national security. 10 C.F.R. § 710.8(l) (Criterion L);

· ...[p]ossessed, used or experimented with a drug or other substance listed in the Schedule of Controlled Substances established pursuant to Section 202 of the Controlled Substances Act of 1970. 10 C.F.R. § 710.8(k) (Criterion K).

The Notification Letter advised the individual of his right to request a hearing before a Hearing Officer in the Office of Hearings and Appeals (OHA) in order to resolve the cited security concerns. The individual requested a hearing, and a Hearing Officer was appointed. Three witnesses testified at the hearing: a DOE consultant psychiatrist; the individual, himself; and the individual’s supervisor.

The Hearing Officer issued an Opinion recommending that the individual’s access authorization not be restored. Personnel Security Hearing (VSO-0121), 26 DOE ¶ 82,775 (1997)(Hearing Officer Opinion). The individual filed the instant Request for Review, and then a Statement of the Issues to be reviewed (hereinafter “Statement” or “Statement of Issues”). The DOE Office of Safeguards and Security filed a response, stating that it concurred with the recommendation of the Hearing Officer and had no additional information to submit in this proceeding.

II. The Hearing Officer’s Opinion

The Hearing Officer made the following factual findings. She found that there was considerable evidence that the individual has a crack cocaine abuse problem. She pointed out that the individual had admitted using the substance in January 1990, and then in January 1995, began regular use of cocaine on weekends. In April 1996, he admitted himself to a substance abuse treatment center (Treatment Center I) for seven days of inpatient treatment for substance abuse. At this treatment center he was diagnosed by a board certified psychiatrist (psychiatrist) as suffering from crack cocaine dependency and alcohol abuse. The psychiatrist listed the individual’s prognosis as good, when he discharged the individual from Treatment Center I. He recommended that the individual attend narcotics anonymous (NA) meetings, participate in a 12-step program and attend aftercare at Treatment Center I. The individual indicated that he did not follow these recommendations and after three months suffered a relapse and resumed using cocaine. He then admitted himself to a different drug treatment facility (Treatment Center II). A medical doctor at this Treatment Center diagnosed the individual as suffering from cocaine dependence. Treatment Center II’s discharge summary lists the individual’s prognosis as good.

In her analysis, the Hearing Officer found with respect to the Criterion K concern that the individual’s admitted use of cocaine constituted a sufficient basis for the DOE to invoke Criterion K in suspending the individual’s security clearance. She then considered whether the individual had demonstrated that he was rehabilitated from his cocaine addiction.

The Hearing Officer found that the individual had failed to establish that he was rehabilitated. She stated that he had not provided any objective corroborating expert testimony on that issue. In this regard, the Hearing Officer pointed out that the DOE consultant psychiatrist had observed that it typically takes two years of abstinence and involvement in a program before one can have some degree of confidence that a person is rehabilitated. She noted the consultant psychiatrist’s opinion that in this case he found no reason to deviate from the two-year time frame. She concluded that given the individual’s long period of use of cocaine and the relatively short period of abstinence (60 days), there was simply not a sufficient period for rehabilitation to have been achieved.

With respect to Criteria J, F and L, the Hearing Officer found that the individual had failed to show rehabilitation from alcohol abuse, and had not mitigated security concerns related to the falsification and lack of reliability. It was her opinion that the individual’s access authorization should not be restored.

III. Analysis

A. Standard of Review

Part 710 provides that if, after considering all the factors in light of the relevant criteria, the OHA Director is of the opinion that it will not endanger the common defense and security and will be clearly consistent with the national interest to grant or continue access authorization to an individual, he shall render an opinion favorable to the individual; otherwise, he shall render an opinion adverse to the individual. 10 C.F.R. § 710.28(d). As discussed below, after reviewing the record in this case, I cannot conclude that it would be clearly consistent with the national interest to restore the access authorization of the individual.

As a general rule, I will not set aside findings of fact made by a hearing officer in these types of cases unless they are clearly erroneous. Compare Pullman Standard v. Swint, 456 U.S. 273 (1982), with Amadeo v. Zant, 486 U.S. 214, 223 (1988), quoting Federal Rule of Civil Procedure 52 (a). See also Oglesbee v. Westinghouse Hanford Co., 25 DOE ¶ 87,501 (1995). In rendering findings of fact, a hearing officer considers the demeanor and credibility of witnesses, as well as the appropriate weight to be given to their testimony.Personnel Security Review (Case No. VSA-0049), 25 DOE ¶ 83,002 at 86,512 (1995). Therefore I will not ordinarily supplant my judgment for that of a hearing officer in such matters. Id.

B. Statement of Issues

1. Lack of Adequate Time to Show Rehabilitation

The Statement of Issues first argues that the individual has not had an adequate period of time in which to show rehabilitation. It points out that the hearing was held less than one year from the time that the security clearance was suspended and that the individual had been released from Treatment Center II only 60 days prior to the hearing. The Statement of Issues concludes that, given the DOE psychiatrist’s judgment that a two-year period of rehabilitation was necessary, there was no possibility that this individual could establish rehabilitation. The Statement implies that the Hearing Officer adopted an unreasonable standard.

This argument indicates a fundamental misunderstanding of the administrative review process under Part 710. As the Hearing Officer indicated in her Opinion, “once the DOE has made a showing of derogatory information raising security concerns, the burden is on the individual to come forward at the hearing with evidence to convince the DOE that restoring his access authorization ?would not endanger the common defense and security and would be clearly consistent with the national interest.’” Personnel Security Review (VSO-0121), 26 DOE ¶ 82,775 at 85,674 (1997)(emphasis added).

Thus, it is the burden of the individual to show he is rehabilitated from his cocaine addiction. As the Hearing Officer pointed out in her Opinion, although the individual asserted that he was rehabilitated, he failed to bring forth objective corroborating testimony on this point. He did not present any expert testimony regarding his rehabilitation efforts, even though there were at least two medical experts who were familiar with his substance abuse problems, courses of treatment and prognosis. Id. at 85,676-77. Although the individual’s attorney had originally intended to present testimony of the physician who had most recently treated the individual for his substance abuse problem, shortly before the hearing, the individual’s attorney advised the Hearing Officer that no physician would testify on the individual’s behalf. Id. at 85,677, Note 2. Regardless of the rehabilitation period recommended by the DOE psychiatrist, it was the burden of the individual to bring forth his own witness(es) to show that he was rehabilitated. He offered no such witnesses.

In fact, there was significant evidence in the record indicating that the individual was not rehabilitated. For example, the individual had resumed using cocaine within three months after completing the program at Treatment Center I. By the time his hearing date was set, the individual had resumed using crack cocaine on a daily basis. The individual then entered the substance abuse treatment at Treatment Center II. As the Hearing Officer stated in her Opinion, the hearing had to be postponed so that the individual could adjust to his drug free state and assist in his defense to the charges contained in the Notification Letter. Id. at 85,676. The mere fact that the individual could not abstain from cocaine use during the period leading up to the hearing is a clear indication of the severity of his abuse problem. In this context, the 60 day abstinence period is by any reasonable measure insufficient to establish rehabilitation.

Further, the Hearing Officer clearly discussed her reasons for rejecting the medical records submitted by the individual as demonstrating rehabilitation. She did not give any weight to the “good” prognosis issued by a board certified psychiatrist at Treatment Center I, because the individual relapsed within three months of the date of that prognosis. She also noted that the prognosis given by the physician at Treatment Center II did not specify a time frame within which the individual could achieve rehabilitation. Given the recent use of cocaine, and the lack of any objective corroborating expert testimony regarding his rehabilitation, it was perfectly reasonable for the Hearing Officer to conclude that the individual had failed to show rehabilitation. The fact that the DOE psychiatrist believed that the individual needed a two year period of abstinence combined with involvement in a rehabilitation program was simply additional evidence to support her ultimate conclusion that the individual did not meet his evidentiary burden.

In sum, I see no error in the fact that the Hearing Officer considered as significant the two-year abstinence period set forth by the DOE psychiatrist. As I suggested above, it is incumbent upon the individual to bring forth evidence to show he is rehabilitated. Thus, it was the burden of the individual to provide testimony by other experts regarding an appropriate rehabilitation period in his case, and testimony that he was indeed rehabilitated. There is ample evidence in the record and in the Hearing Officer’s Opinion to support her conclusion that the individual simply has not met his burden of proof in this matter.

2. Due Process

The Statement of Issues contends that due to the short time frame between the start of the individual’s abstinence and the hearing, he was denied an adequate opportunity to present evidence of rehabilitation. This lack of opportunity, according to the Statement, constitutes a denial of due process under the Constitution of the United States.

This argument is unavailing. The constitutional requirements of due process do not apply unless there is a cognizable liberty or property interest in a security clearance. Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990)(Dorfmont). There is no protected property or liberty interest in maintaining a security clearance. Id. at 1403. Accordingly, the court in Dorfmont found that a claim for denial of due process stemming from the revocation of a security clearance is not a colorable constitutional claim. Id. at 1404. Similarly, the claim of denial of due process must be summarily rejected in this case.

3. Fairness

The Statement of Issues suggests that it was simply unfair to convene the hearing within only a 60 day period of the individual’s release from Treatment Center II. The Statement indicates that this short time frame prevents an individual from being able to show rehabilitation, given the two-year abstinence period set forth by the DOE psychiatrist. The Statement of Issues argues that the individual has presented all the evidence he possibly could have, given the circumstances of the timing of the hearing. The Statement implies that in order to be fair, the DOE should have provided the individual a longer, more adequate time frame in which to achieve rehabilitation prior to convening the hearing.

I see nothing unfair in the process accorded this individual. The purpose of this type of administrative proceeding under Part 710 is not to provide the individual with an opportunity to rehabilitate himself, but rather to allow him to show that he is not a security concern. Given the serious consequences of a breach of security, it is the focus of the DOE in these cases to insure that access authorization is not granted to an individual who presents an unacceptable security risk. Thus, the point of this administrative review is to consider whether an individual presents an unacceptable level of security risk, and not to engage in a process leading to his ultimate rehabilitation.

After reviewing the record, I believe that the overall process accorded to this individual has been extremely fair. He has had an ample opportunity to present evidence in this case. In fact, as I pointed out above, the hearing was even postponed beyond the regulatory time frame as set out at 10 C.F.R. § 710.25(g), in order to accommodate the individual’s need to adjust to a drug free state and to allow him time to assist in presenting his case at the hearing. See Letter dated February 28, 1997 from Ann S. Augustyn, Hearing Officer. (2)I therefore find that virtually every reasonable accommodation has been accorded in this case to ensure that the individual has had a full and fair opportunity to show that he is not a security concern.

Furthermore, if the DOE were to stay administrative review proceedings in order to allow individuals the opportunity to complete their rehabilitation, it 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. The DOE has already specifically declined to establish procedures for requesting stays of access authorization actions. 59 Fed. Reg. 35178, 35179 (July 8, 1994).

In sum, the purpose of the hearing procedures is to allow an expedited period within which a disinterested person can hear testimony, review the evidence and make findings regarding an individual’s suitability for access authorization. Personnel Security Review (VSA-0005), 25 DOE ¶ 83,013 (1995). See also 59 Fed. Reg. 35178, 35179 (July 8, 1994). The procedures further permit a review of the Hearing Officer’s Opinion in order to consider whether any errors of fact or law were made. It is this phase of the review process that is being undertaken in the instant Opinion. The individual has been accorded and has taken advantage of the full gamut of procedural rights available in this case. Considering the purpose of the Part 710 procedures and that of the hearing itself, I fail to see any unfairness whatsoever in this case.

4. The Individual’s Honesty

The Statement of Issues also points out that the individual notified his employer of his drug use problem and of the fact that he was entering a treatment program. The Statement indicates that it was thus the individual’s own honesty and integrity that gave rise to the instant administrative review proceeding. This argument does not establish any error in the Hearing Officer’s Opinion or demonstrate that a change in the ultimate outcome in this case is warranted. Use of illegal drugs constitutes derogatory information. 10 C.F.R. § 710.8(k). The use of illegal drugs is a concern because it reflects a deliberate violation of criminal laws, and it creates a potential for pressure, coercion or exploitation. See Personnel Security Hearing (VSO-0103), 26 DOE ¶ 82,761 (1996), aff’d Personnel Security Review (VSA-0103), 26 DOE ¶ 83,006 (1997); Personnel Security Hearing (VSO-0085), 26 DOE ¶ 82,751 (1996). The fact that the individual in the instant case eventually told the DOE about his drug abuse problems does little if anything to mitigate these serious security concerns surrounding his use of cocaine.

5. The Substance Abuse Program Referral Option

The Statement of Issues claims that the individual was never offered the opportunity to participate in the Substance Abuse Program Referral Option, and implies that there is some unfairness in this regard. Hearing Officers in Part 710 administrative review proceedings have no authority to consider determinations with regard to this type of employee substance abuse program. These matters are within the discretion of the Office of Security Affairs. See Personnel Security Hearing (VSA-0014) 25 DOE ¶ 83,002 (1995). Similarly, I do not have any authority in my review of Hearing Officer Opinions to consider this matter.

IV. Conclusion

As indicated by the foregoing, I see no error in the Hearing Officer’s Opinion, and no basis for reversing any of her findings. In the end, I cannot conclude that the continuation of this individual’s access authorization will not endanger the common defense and security and will be clearly consistent with the national interest. Accordingly, it is my opinion that the individual’s access authorization should not be restored. 10 C.F.R. § 710.28.(d).

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 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

Date: July 14, 1997

(1)”1/ An “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 in this Opinion as access authorization or security clearance.

(2)The record indicates that the individual’s treating physician at Treatment Center II advised against any stress for a two- week period following his release from his drug treatment program. According to the physician, such stress would include participation at the hearing. See Record of February 4, 1997 telephone conference. The individual is not entitled to a postponement beyond the 90 period allowed by the regulations. It is not a matter of right that the individual be accorded a period of time to recuperate from drug or other medical treatment. Rather, it was within the discretion of the Director of the Office of Hearings and Appeals to permit a specific extension of time. 10 C.F.R. § 710.25(g). I exercised that prerogative and allowed a short extension in this case.