Case No. VSA-0170, 27 DOE ¶ 83,004 (OHA February 6, 1998)

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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.

February 6, 1998

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: January 6, 1998

Case Number: VSA-0170

This Opinion considers a Request for Review filed by XXXXX (hereinafter referred to as "the individual") concerning his eligibility to retain an access authorization. (1)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.”

I. Background

This case concerns the suspension of the individual’s access authorization. The DOE received information indicating that the individual had been hospitalized for a substance abuse problem. A DOE Security Representative conducted a personnel security interview (PSI) with the individual, which did not resolve security concerns, involving the individual’s use of alcohol and illegal drugs. The individual was then referred for evaluation by a DOE consultant psychiatrist (the psychiatrist). His evaluation report also did not resolve the security concerns. Consequently, the DOE Office suspended the individual’s access authorization, and issued

a Notification Letter. The Notification Letter specified four areas of derogatory information described in 10 C.F.R. § 708.8. First, under Section 710.8(f) (Criterion F), the letter alleges that the individual deliberately misrepresented, falsified, or omitted significant information in his response to a question about illegal drug use in a Questionnaire for Sensitive Positions (QSP) that he completed. Specifically, on the QSP form, the individual denied using illegal drugs in the five years prior to filing that document, but in a subsequent PSI admitted to having used marijuana during that five-year period.

The letter also alleges that the individual has been or is “a user of alcohol habitually to excess, or [has] been diagnosed by a board-certified psychiatrist as alcohol dependent or as suffering from alcohol abuse,” which is derogatory information under Section 710.8(j) (Criterion J). The letter further claims that the individual has “trafficked in, sold, transferred, possessed, used or experimented with” illegal drugs, which is derogatory information under Section 710.8(k) (Criterion K). These two allegations are based on the individual’s history of alcohol abuse and illegal use of crack cocaine, his hospital treatment for alcohol and drug abuse, and the psychiatric report by the DOE psychiatrist, which found that the individual suffers from mixed substance abuse.

Finally, the Notification Letter alleges that derogatory information exists under Section 710.8(l) (Criterion L). That criterion involves derogatory information to the effect that an individual has engaged in unusual conduct or is subject to circumstances that 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. The specific conduct referred to in the Notification Letter is the individual’s use of marijuana and cocaine, despite his knowing that DOE policy prohibits illegal drug use by a person who possesses an access authorization.

The Notification Letter advised the individual of his right to request a hearing before a Hearing Officer in the DOE’s 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. At the hearing, the only persons who testified were the psychiatrist and the individual.

Based upon the testimony at the hearing and other evidence in the record, the Hearing Officer issued an Opinion recommending that the individual’s access authorization not be restored. Personnel Security Hearing (VSO-0170), 26 DOE ¶ 82,802 (1997). The individual filed a Request for Review, and then a statement of the issues to be reviewed (hereinafter “the Statement” or “the Statement of Issues”). 10 C.F.R. § 710.28(a),(b). 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

With respect to Criterion F, the Hearing Officer did not believe the individual’s contention that his false statement in the QSP about his marijuana use was insignificant and not deliberate. The Hearing Officer found that the individual had failed to mitigate the concerns surrounding the falsification as to drug use.

With respect to Criterion J, the Hearing Officer found that the individual suffers from alcohol abuse, and used alcohol habitually to excess. Considering Criterion K, the Hearing Officer found that the individual was a regular user of crack cocaine. The Hearing Officer noted that although the individual did not claim that he was fully rehabilitated from these conditions, the individual did assert that he had mitigated the agency’s security concerns with respect to his alcohol and illegal drug use. In this regard, the Hearing Officer referred to the individual’s ongoing rehabilitation efforts. However, as the Hearing Officer pointed out, the psychiatrist believed that although the alcohol and drug use problems were “in remission” and currently not problems, the psychiatrist did not believe that the individual no longer suffers from polysubstance abuse. The Hearing Officer was not convinced by the individual’s uncorroborated testimony as to his abstinence from cocaine and alcohol. Moreover, the Hearing Officer found that the individual had had treatment that lasted only for a few weeks and had not presented any evidence to show that anyone that provided him drug and alcohol treatment considered him to be rehabilitated. The Hearing Officer found that there is an unacceptable risk that the individual will abuse alcohol or use illegal drugs in the future.

In considering the security concerns raised under Criterion L, the Hearing Officer found that the individual’s illegal marijuana and cocaine use raises significant doubts as to the individual’s trustworthiness and reliability, and that no mitigating evidence was presented with respect to this issue.

Accordingly, the Hearing Officer recommended that the individual’s access authorization 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).

B. Statement of Issues

The Statement of Issues refers to the DOE’s Substance Abuse Referral Program (SARP). This program permits participants with substance abuse problems to retain their access authorizations while completing their effort at rehabilitation. The individual states that SARP allows a minimum of 24 months for rehabilitation. He believes that he should at least be afforded the same period of time to complete his own rehabilitation, and requests that the DOE delay further action with respect to the review of his access authorization until his own rehabilitation has been completed. He further asks that all issues pertaining to his eligibility for SARP be reviewed.

The individual raised the matter of his eligibility for SARP at the hearing, and the Hearing Officer addressed this issue in his Opinion. As the Hearing Officer stated: “the Part 710 regulations do not authorize me to consider this issue.” Personnel Security Hearing (Case No. VSO-0170), 26 DOE ¶ 82,802 at 85,859 (1997). The Hearing Officer was correct in that determination. A decision as to eligibility for this program is left to the DOE Office of Security Affairs. In my review of Hearing Officer Opinions, I do not have authority to consider that decision. Personnel Security Review (Case No. VSA-0121), 26 DOE ¶ 83,014 (1997). Accordingly, there is no basis for reversal of the Opinion below with respect to this issue.

I further find no merit in the individual’s argument that the DOE should delay further action in this case until his rehabilitation has been completed. The Hearing Officer addressed this very issue in his Opinion, and found that such an extension was not appropriate. I must agree. The law on this point is quite clear:

The purpose of the hearing procedures is to allow a period within which a disinterested person can hear testimony, review the evidence and make findings. Any extension of time during those procedures must be consistent with that purpose. Individuals will not be allowed to abuse these procedures as a means of creating evidence of rehabilitation.

Personnel Security Review (Case No. VSA-0005), 25 DOE ¶ 83,013 at 86,566-67 (1995). Thus, I cannot delay reaching a determination in this case in order to permit an additional period for rehabilitation. (2)

Finally, the individual asks that I “take into consideration Part II of the Department of Labor office of Federal Contract Compliance Programs, 41 C.F.R. Part 60-741.” These regulations set forth nondiscrimination obligations of government contractors and subcontractors regarding persons with disabilities. The regulations require a government contractor-employer to make reasonable accommodation for employees with disabilities. The individual considers his alcohol and drug abuse problems to constitute disabilities within the meaning of those regulations.

The individual does not state what requirements he believes these regulations impose in this proceeding. If he believes that I must reinstate his access authorization as “reasonable accommodation” for his disabilities, he is mistaken. The cited regulations do not apply to granting or reinstating access authorizations. In this case, I must make a determination as to the individual’s eligibility for access authorization using the criteria set out in Part 710. There is no requirement for making reasonable accommodation for disability with respect to granting or reinstating access authorizations set forth either at Part 710 or in Part 60-741.

The individual is also mistaken if he believes that I must consider in this proceeding whether, in spite of his disabilities, he may be properly terminated from his employment if his access authorization is not reinstated. See Personnel Security Hearing (Case No. VSO- 0125), 26 DOE ¶ 82,774 (1997). The instant proceeding, conducted under 10 C.F.R. Part 710, simply requires the Office of Hearings and Appeals to issue an opinion regarding the individual’s eligibility to hold an access authorization. The final determination with regard to the individual’s eligibility for access authorization is made by the DOE Office of Security Affairs (OSA). However, neither the OHA nor the OSA makes a determination as to whether the individual’s employment should be continued if his access authorization is revoked. That decision rests with his employing office. (3)In the administrative review process set forth in Part 710, it is neither my role, nor that of the Hearing Officer, to consider compliance with the reasonable accommodation provisions of Part 60-741.

In sum, the arguments raised in the Statement of Issues do not establish that there was any error on the part of the Hearing Officer in this case. I therefore cannot find that restoring this individual’s access authorization would not endanger the common defense and security and will be clearly consistent with the national interest.

IV. Conclusion

As indicated by the foregoing, 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: February 6, 1998

(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.

(2)At the hearing, the individual testified that he had abstained from alcohol for more than 15 months and had not used cocaine in more than one year. However, the Hearing Officer noted in his Opinion that the individual had not corroborated those assertions, and he accorded them no weight. Thus, the record in this case does not even establish a baseline date from which the rehabilitation period could be measured.

(3)The Hearing Officer noted in his Opinion that the individual’s alcoholism is the basis for his request to his employer to accommodate him in accordance with the provisions of the Americans with Disability Act of 1990, 42 U.S.C. § 12101 et seq. 26 DOE at 85,859, n. 7. See also Blankenship v. Martin Marietta Energy Systems, Inc., 83 F.3d 153 (6th Cir. 1996).