Case No. VSA-0345, 28 DOE ¶ 83,014 (OHA December 12, 2000)

Case No. VSA-0345, 28 DOE ¶ 83,014 (OHA December 12, 2000)

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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.

December 12, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Opinion of the Director

Case Name: Personnel Security Review

Date of Filing:August 9, 2000

Case Number: VSA-0345

This Opinion considers a Request for Review filed by XXXXXXXXX (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, made under these regulations, 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 the criteria set forth in 10 C.F.R. § 710.8, subsection (l). The DOE office alleged that the Individual has engaged in unusual conduct or is subject to circumstances which tend to show that he is not honest, reliable, or trustworthy; or that furnishes reason to believe that he may be subject to pressure or duress which may cause him to act contrary to the best interest of national security. 10 C.F.R. § 710.8(l). The DOE security concern involved information indicating that the Individual placed nitrite into the urine specimen he provided to the DOE for a routine drug screening. The DOE believed the Individual adulterated his urine specimen to prevent the testing laboratory from testing his urine specimen for marijuana. The Individual’s adulterated test result was considered to be a positive test by the DOE testing laboratory.

The Individual requested a hearing, and a Hearing Officer was appointed. At the hearing, the DOE presented the testimony of five witnesses to detail the procedures for obtaining and testing urine specimens provided by employees subject to random drug testing, as well as the testimony of the DOE personnel security specialist and the testimony of three of the Individual’s supervisors. The Individual testified on his own behalf and presented the testimony of nine character witnesses to show that he did not use marijuana.

The Hearing Officer issued an Opinion recommending against restoration of the Individual’s access authorization. Personnel Security Hearing, 28 DOE ¶ 82,753 (2000) (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 had no additional information to submit in this proceeding and the record was closed.

C. The Hearing Officer’s Opinion

In recommending against the restoration of access authorization, the Hearing Officer considered the testimony regarding urine specimen procedures at the DOE facility and mitigating factors presented by the Individual.

First, the Hearing Officer considered the testimony regarding the urine specimen procedures taken at the testing laboratory. The witnesses included the Medical Service Operator (MSO) who supervised the collection of the Individual’s urine specimen, the Substance Abuse Technician who was responsible for packing and shipping the specimen to the testing laboratory and the Lead Technical Specialist who supervised the day-to-day operations of all drug and alcohol testing at the facility. In addition, the Hearing Officer heard the testimony of two expert witnesses who were familiar with the procedures of the testing laboratory. He was convinced that the testing laboratory was well organized and highly professional. Hearing Officer Opinion at 85,513. The Hearing Officer found that the testing laboratory tested the urine specimen conscientiously and in accordance with its normal procedures. Id. at 85,514.

Second, the Hearing Officer considered several concerns raised by the Individual regarding the procedures used in collecting and analyzing the Individual’s urine specimen. The Individual believes the concerns raise the possibility that someone other than himself placed the nitrite in his urine specimen. The Hearing Officer found no reason to believe that the collection kit, which had been randomly selected, had been tampered with prior to the Individual’s use. Id. He also found without merit the Individual’s concern about a perceived irregularity in the freezer-log entry for his urine specimen. Further, the Hearing Officer was not convinced that testimony about the “unacceptable” job performance evaluation of an employee involved with drug and alcohol testing provided a basis to believe that there was any problem with the procedures used for testing the Individual’s urine specimen. Id. at 85,515.

Finally, the Hearing Officer considered the testimony of a number of witnesses offered to mitigate the security concerns raised by the DOE. The DOE called several of the Individual’s supervisors, all of whom convinced the Hearing Officer that the individual is an excellent employee and is considered to be reliable and trustworthy by his co-workers. In addition, the Individual called a physician employed by the contractor at the DOE facility, who provided testimony regarding the Individual’s participation in the contractor’s EAPRO program. The Individual was permitted to participate in this substance abuse program after nitrite was found in his urine specimen. Based on the record, the Hearing Officer found that the Individual has completed 12 months of random drug tests, the results of each being negative. He was therefore persuaded that the Individual has not used marijuana in the last year. Id. The Hearing Officer was also convinced by the Individual’s friends and co-workers that he does not use marijuana when he is at home, at work or socializing. However, he was not convinced that the Individual is not an occasional user of marijuana in other circumstances. Finally, the Hearing Officer did not believe the Individual’s own testimony regarding his marijuana use. Id. at 85,516.

After consideration of the foregoing, the Hearing Officer concluded that the Individual had not provided sufficient evidence to mitigate 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 his Statement of Issues, the Individual identifies two issues for review. First, the Individual contends that there was an irregularity in the freezer log entry for his urine specimen. See Statement of Issues at 1. Second, the Individual contends that there is “unrebutted evidence of rehabilitation that should be considered under 10 C.F.R. Part 710.7(c)” and highlights several factors under the regulations that in his view support a finding that a grant of access authorization would be clearly consistent with the national interest. Id. at 1-2.

1. Whether There Was an Irregularity in the Freezer Log Entry

As noted above, the Individual contends that there was an irregularity in the freezer log entry for his urine specimen. In his Statement of Issues, the Individual refers to a log kept by the testing laboratory to indicate the specific location within the freezer of each specimen stored in the freezer. During the Hearing and in the present case, the Individual points out that the freezer log entry for his urine specimen was placed on a line added to the bottom of a log page when the normal procedure is to place a log entry on the next available preprinted line. The Individual asserts that this irregularity indicates that his urine specimen was not logged in properly and thus might indicate that his specimen was mishandled. The Hearing Officer heard the testimony of two professionals who were familiar with the procedures at the testing laboratory. They indicated that after all normal tests of a specimen are completed, positive specimens are stored in a freezer for one year. A log is then prepared as specimens are placed in the freezer. As noted during the Hearing, recovery of specimens from the freezer is easier if they are grouped together on the freezer log. According to one of the expert witnesses at the hearing, placing the Individual’s freezer log entry at the bottom of the page kept two entries concerning specimens sent by the DOE on the same day next to each other on the log. In addition, he testified that it is not inappropriate to group entries to keep them together.

The Hearing Officer did not believe that the entry method on the freezer log indicates any reason to be concerned that the Individual’s specimen was mishandled by the testing laboratory. I agree. Other than mere speculation that the Individual’s urine sample was mishandled, the Individual has advanced no additional arguments in his Statement of Issues to give merit to this argument. Therefore, I conclude that the Hearing Officer’s finding with respect to this contention is reasonable.

2. Evidence of Rehabilitation

The Individual also contends that the record shows “unrebutted evidence” of his rehabilitation, including his successful participation in the EAPRO Program. He points to the relevant factors and circumstances connected with his conduct as set forth in 10 C.F.R. § 710.7(c):

the nature, extent and seriousness of the conduct; the circumstances surrounding his conduct, to include knowledgeable participation; the frequency and recency of his conduct; the age and maturity at the time of the conduct; the voluntariness of his participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation of his conduct; the potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors.

The Individual contends that the totality of these factors support a finding that a grant of access authorization would be clearly consistent with the national interest. I disagree. During the hearing, the Hearing Officer acknowledged several favorable points related to the Individual. Specifically, the Hearing Officer heard testimony that the Individual is an excellent employee and that the Individual successfully completed 12 months of random drug tests with negative results as required by the EAPRO program. Nevertheless, the Hearing Officer did not find the Individual’s own testimony regarding his marijuana use to be credible or candid. He thus found it difficult to accept the Individual’s testimony that he is not a casual user of marijuana and that he did not add nitrite to his urine specimen.

The Hearing Officer cited two instances where he did not find the Individual’s testimony regarding his marijuana use to be reliable. In the first instance, the Individual was asked about his marijuana use in high school and in the early 1980's. Hearing Transcript (Tr.) at 180-181. The Individual did not provide any clear answers to the questions. The Hearing Officer believed the Individual was not answering to the best of his recollection. Hearing Officer Opinion at 85,516. In the second instance, the Individual testified that he has not used marijuana since 1984. However, in a 1990 Questionnaire for Sensitive Positions (QSP), the Individual indicated that he last used marijuana in 1988 and testified that he did not know why he made this mistake on his QSP. The Hearing Officer found that the Individual’s testimony on these key points was not straightforward.

The Hearing Officer was in the best position to consider the demeanor and credibility of the Individual at the Hearing. However, I have also reviewed the record and find that the discrepancies in the Individual’s testimony regarding his past marijuana use are troubling. Therefore, I agree with the Hearing Officer that the Individual’s lack of candor about his drug use, generally, makes it hard to believe that he was truthful with regard to the nitrite in his urine sample. Given his history of equivocation about drug use, there is no evidence in the record which would make me believe his account that he had nothing to do with the adulteration of his urine sample.(1)

III. Conclusion

As is evident from the above discussion, the matters raised in 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: December 12, 2000

(1)In a similar case, the Hearing Officer recommended the restoration of an Individual’s clearance whose random drug test result was reported as “substituted: not consistent with normal human urine.” DOE procedures considered that result the equivalent of a refusal to test, and it carried the same consequences as a positive drug test. See Personnel Security Hearing, Case No. VSO-0352, 28 DOE ¶_______(November 15, 2000). In that case, the Hearing Officer found several procedural discrepancies regarding the handling of the Individual’s sample. In addition, the Hearing Officer noted that the Individual had a long record of 19 years of negative random drug tests, and no evidence of recent drug use. This case is clearly distinguishable from the present case. Here, the record reflects that the testing laboratory diligently followed normal testing procedures, and unlike the previous cited case, the Individual has a history of drug use.