Case No. VSA-0226, 27 DOE ¶ 83,016 (OHA February 18, 1999)

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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 18, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Opinion of the Director

Case Name: Personnel Security Review

Date of Filing:December 11, 1998

Case Number: VSA-0226

This Opinion considers a Request for Review filed by XXXXXXXXXXX(hereinafter referred to as “the Individual”) concerning the suspension of his access authorization. As explained below, I cannot conclude that restoring the Individual’s access authorization would be clearly consistent with the national interest.

I. Background

A. The Applicable Regulations

The Department of Energy (DOE) regulations governing this matter are set forth at 10 C.F.R. Part 710 (“Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material”). As the title indicates, these regulations specify both the criteria and the procedures for determining eligibility for access to classified matter or special nuclear material. The administrative determination that an individual is eligible for access to classified matter or special nuclear material is referred to as an “access authorization” or a “security clearance.”

B. The Notification Letter

A DOE office issued a Notification Letter to the Individual informing him that his access authorization was suspended due to derogatory information that created substantial doubt about his continued eligibility. The specific information was set forth in an enclosure to the Notification Letter. In that enclosure, the DOE office stated that this information falls within the purview of two of the criteria set forth in 10 C.F.R. § 710.8, subsections (h) and (j). The DOE office alleged that the individual has "[a]n illness or mental condition of a nature which, in the opinion of a board- certified psychiatrist . . . causes, or may cause, a significant defect in judgment or reliability."

10 C.F.R. § 710.8(h). In addition, the DOE office invoked Criterion J on the basis that the individual has "been, 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).

The Individual requested a hearing, and a Hearing Officer was appointed. At the hearing, the DOE presented the testimony of four witnesses: the DOE consultant psychiatrist, a DOE personnel security specialist, a personnel official with the individual's employer and the individual. The Individual presented the testimony of five witnesses: his Employee Assistance Program (EAP) counselor, his union's business manager and three supervisors.

The Hearing Officer issued an Opinion recommending against restoration of the Individual’s access authorization. Personnel Security Hearing, 27 DOE ¶ 82,780 (1998) (Hearing Officer Opinion). The Individual filed the present Request for Review, which included a Statement of the Issues to be reviewed. 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. The record was closed on January 8, 1999.

C. The Hearing Officer’s Opinion

In recommending against the restoration of access authorization, the Hearing Officer considered the extent of the Individual's alcohol use, the diagnosis of the Individual as alcohol dependent, the Individual's efforts toward rehabilitation, and the expert opinion that there was insufficient evidence of rehabilitation.

First, the Hearing Officer considered the Individual's own description of his alcohol problem. At the hearing, the Individual testified that he had stopped consuming alcohol about two months before the hearing and that his abstinence resulted from his involvement in counseling and his security clearance problems. Hearing Officer Opinion at 85,683. The Individual now believes that he is a recovering alcoholic and is committed to maintaining his sobriety. In addition, the Individual testified that his family and friends are fully supportive of his commitment to sobriety. Id.

Second, the Hearing Officer considered the opinion of the DOE consultant psychiatrist that the Individual was alcohol dependent and had not yet demonstrated rehabilitation. Id. The Hearing Officer cited the DOE consultant psychiatrist's opinion that at his stage of sobriety, the Individual has a 90 percent lifetime chance of beginning to drink again. According to the DOE consultant psychiatrist's recommendation, the Individual should complete "nine months of therapy consisting of 50 hours of outpatient professionally-led therapy and some period of after-care.” Id. The Hearing Officer also noted the opinion of the Individual's EAP counselor that he believes the diagnosis of alcohol dependence is accurate and further that it is too early to consider the Individual rehabilitated. Id.

Finally, the Hearing Officer took note of the Individual's recent abstinence, the support of the Individual's family and his good work performance.

After consideration of the foregoing, the Hearing Officer concluded that there was not sufficient evidence of rehabilitation or reformation. Therefore, she was unable to conclude that the Individual has mitigated the security concerns of the DOE.

II. 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 Fed. R. Civ. P. 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 and other evidence. 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

In the Statement of Issues, the Individual identifies two issues for review. First, the Individual contends that he was not afforded "due process" because one of his proposed witnesses did not have the opportunity to testify at the hearing. See Statement of Issues at 1. Second, the Individual contends that during the hearing, the DOE consultant psychiatrist reduced the number of treatment hours recommended for the Individual from 100 to 50. According to the Individual, "If I had been informed of this requirement at that time [the time the DOE consultant psychiatrist conducted his evaluation], I could have started sooner on my program." Id. at 1,2.

1. Whether the Individual Was Denied Due Process

As noted above, the Individual contends that he was denied “due process” because one of his proposed witnesses did not have the opportunity to testify during the hearing. 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.

Even if I could consider a due process argument, the Individual’s contention is still unconvincing. The record reveals that on October 20, 1998, the Individual informed the DOE Counsel that one of his witnesses would not be available to testify at the hearing nor would he be available to testify by telephone. See Record of Telephone Conversation among DOE Counsel, Individual and Hearing Officer (October 28, 1998). When asked what this witness would testify about, the Individual informed the Hearing Officer and DOE Counsel that this witness would state that the Individual never came to work drunk. Id. At that time, the DOE Counsel informed the Individual that his witness’ testimony could be taken at another time, but that also he was willing to stipulate to the witness’ testimony. See 10 C.F.R. § 710.24 (authorizes DOE Counsel to enter into stipulations that are binding upon the Individual and the DOE). The Individual fully agreed to this suggestion. In addition, all parties agreed that a letter written on behalf of the Individual by the witness would also be sufficient for the record. Id.

A review of the record indicates that the Individual was clearly treated fairly throughout the entire hearing proceeding. As stated above, the record reveals that the Individual was fully informed that his witness' testimony could be taken at another time, and that a letter from the witness could also be submitted. The Individual fully agreed to the submission of his witness' letter as well as to the stipulation of his witness’ testimony. Moreover, the record reveals that the Hearing Officer considered the witness' letter and stipulated testimony in making her recommendation. However, as the Hearing Officer noted, in this case, the Individual's good work habits do not mitigate the security concerns presented by the Individual’s alcohol problem. See Hearing Transcript (Hearing Tr.) at 72; Personnel Security Review (Case No. VSA-0106), 26 DOE ¶ 83,009 at 86,561 (1997). Thus, I find that the Individual's contention that he was denied due process is without merit.

The Individual's Recommended Treatment Hours

The Individual also contends that during the hearing the DOE consultant psychiatrist reduced the number of treatment hours recommended for the Individual from 100 to 50. The Individual asserts that had he been informed of this new requirement at the time of his psychiatric evaluation, he would have been able to start and perhaps complete his treatment program sooner. Based on a review of the record, I find that this contention is also without merit.

During the hearing, the DOE consultant-psychiatrist stated that the Individual could not currently be considered rehabilitated. Hearing Officer Opinion at 85,683. He further recommended that the Individual complete nine months of therapy consisting of 50 hours of outpatient professionally led therapy and some period of after-care. During the course of the hearing, the DOE consultant psychiatrist changed the number of treatment hours recommended for the Individual from 100 to 50 due in part to a change in community standards. Hearing Tr. at 37. However, the DOE consultant psychiatrist reiterated that the Individual must still complete at least nine months of treatment, which would include after-care. Id. In his Statement of Issues, the Individual does not dispute the DOE consultant psychiatrist’s recommendation, but rather asserts that he could complete the 50 hours of treatment sooner than originally thought. However, in his Statement, the Individual acknowledges that he still would not be able to afford any outpatient therapy but instead would continue with counseling with the EAP counselor and attend Alcoholics Anonymous (AA) meetings.

The Individual’s contention here is unpersuasive. Even though the DOE consultant psychiatrist changed his recommended number of treatment hours for the Individual, he did not alter the overall recommended treatment period of nine months. The Individual would not have completed a total of nine months of treatment any sooner if he had known of this change. Moreover, the Individual’s contention is also unpersuasive because he acknowledges that he has elected to continue with EAP counseling and AA meetings. As noted by the DOE consultant psychiatrist “AA alone is not sufficient in this case because the Individual requires professional evaluation which AA cannot provide.” Hearing Officer Opinion at 85,683. The fact remains that the Individual has not completed the recommended 50 hours of treatment. The Individual’s mere assertion that he could have completed the recommended 50 hours is simply unpersuasive. Consequently, it appears that the Individual has still presented insufficient evidence of rehabilitation. Under these circumstances, I find that the Hearing Officer’s conclusion that the Individual has not presented sufficient evidence of rehabilitation or reformation from his alcohol dependency was reasonable and adequately supported by the record. Accordingly, I cannot find that the Individual has mitigated the security concerns under Criteria H and J.

III. Conclusion

As is evident from the above discussion, the matters raised by the Statement of Issues indicate that the Individual disagrees with findings made by the Hearing Officer. However, those disagreements do not evidence error. Based on the entire record and in light of my opinion that no error occurred, I cannot conclude that a grant of access authorization would be clearly consistent with the national interest. 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 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 18, 1999