Case No. VSA-0346, 28 DOE ¶ 83,013 (OHA November 30, 2000)

For full history of this case, and links to other cases, click here.

* 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.

November 30, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case:Personnel Security Review

Date of Filing:September 26, 2000

Case Number: VSA-0346

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. During the course of a reinvestigation of the individual’s eligibility for a clearance, a DOE Office conducted a Personnel Security Interview (PSI) and requested that the individual be interviewed by a psychiatrist (the DOE psychiatrist). The PSI and the DOE psychiatrist’s report did not resolve the security concerns of the DOE Office, which then suspended the individual’s access authorization and issued a Notification Letter. In the Notification Letter, the DOE Office informed the individual that his access authorization had been suspended because information in the possession of the DOE created substantial doubt concerning his eligibility. The Notification Letter described information falling within the purview of 10 C.F.R. § 710.8(j).

The DOE Office invoked 10 C.F.R. § 710.8(j) (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.” The DOE Office cited five incidents of the individual driving while intoxicated and noted that the DOE psychiatrist diagnosed the individual as “suffering from alcohol abuse” and concluded that the individual had not shown “adequate evidence of rehabilitation or reformation.”

In a letter forwarded to the DOE Office of Hearings and Appeals (OHA), the individual requested a hearing in this matter. 10 C.F.R. § 710.21(b). At the hearing, the DOE Office called three witnesses: the individual, the DOE psychiatrist, and the security officer for the individual’s employer, a DOE contractor. The individual, in addition to testifying on his own behalf, presented the testimony of a clinical psychologist (the psychologist), his girlfriend, and two co-workers. Based upon the testimony at the hearing and other record evidence, the Hearing Officer issued an Opinion recommending that the individual’s access authorization not be restored. Personnel Security Hearing, 28 DOE ¶ 82,757, Case No. VSO-0346 (2000).

On September 26, 2000, the individual filed a Request for Review along with a statement of issues to be reviewed. Letter from Attorney for Individual to Director, OHA (September 21, 2000). The individual argues that there is sufficient evidence to mitigate the DOE’s security concerns, specifically because the psychologist who testified on the individual’s behalf “addressed all of the security concerns set forth by regulation” and concluded that the individual “presented no security risk to the United States.” Id. at 1. The individual contends that the Hearing Officer improperly discounted the psychologist’s testimony, and further alleges that the Hearing Officer was generally biased in favor of the DOE. Id. at 1-2. The DOE’s Office of Security Affairs (SA) responded to the statement of issues on October 19, 2000, stating that it had “no additional information to submit at this time.” 10 C.F.R. § 710.28(a), (b).

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. Personnel Security Review, 27 DOE ¶ 83,030 at 86,640, Case No. VSA-0281 (2000); cf. Amadeo v. Zant, 486 U.S. 214, 223 (1988) (quoting Fed. R. Civ. P. 52(a)). In rendering findings of fact, the hearing officer, who was present for the testimony of the witnesses, is in the best position to assess their demeanor and credibility, as well as to determine the appropriate weight to be given to their testimony. Personnel Security Review, 25 DOE ¶ 83,002 at 86,512, Case No. VSA-0014 (1995).

B. Alleged Bias of the Hearing Officer

This office takes very seriously allegations of bias on the part of any of its Hearing Officers. In the present case, the individual complains that the

complete tenor of the hearing demonstrated that the hearing officer was putting on the case for the Department. She did not like the evidence we presented; she simply commented that it was not relevant. If the Department did not put on evidence which she thought might be satisfactory to support her preconceived determination, then she would place that evidence in the record herself. It is obvious that the hearing officer was biased, and her conduct at the hearing and her eventual determination verifies that.

Letter from Attorney for Individual to Director, OHA at 1-2. However, the individual does not direct my attention to any evidence in the record to support his assertions as to the conduct of the Hearing Officer, and I find none. In fact, the individual’s statement on this issue is general in nature, with one exception. It focuses on one footnote in the Hearing Officer’s opinion in which she stated that she would give no weight to the testimony of the psychologist that the individual does not present a security risk. I fail to see how this statement is evidence of bias. Rather, as I explain below, it is merely a correct application of the criteria in the Part 708 regulations.

C. Security Concerns Based Upon the Individual’s Use of Alcohol

First, we point out that the Hearing Officer cited the testimony of the experts of both sides in this matter, and indeed the testimony of the individual himself, in support of her conclusion that there was “adequate evidence of a Criterion J security concern regarding the individual’s use of alcohol.” 28 DOE ¶ 82,757 at 85,533. There is thus no basis to the individual’s claims that the Hearing Officer considered only evidence from the DOE Office. The DOE psychiatrist diagnosed the individual as suffering from alcohol abuse. DOE Exhibit 5; Tr. at 42. The psychologist who testified on behalf of the individual stated that the individual “clearly has had a history of alcohol abuse,” but that “at least for the last year, he’s not had that.” Tr. at 97, 98. And when the individual was asked at the hearing whether he acknowledges that he has “a drinking problem,” the individual replied, “Yes, I do.” Tr. at 13.

After noting this security concern, finding that the individual has abstained from alcohol since December 6, 1999, and opining that he is “currently not an alcohol abuser,” the Hearing Officer then properly turned to the question of whether the individual has been rehabilitated from his past alcohol abuse. Again, the Hearing Officer relied upon the testimony of both experts in concluding that the individual is not rehabilitated. 28 DOE ¶ 82,757 at 85,534-35; Tr. at 54. The psychologist, whose “impeccable credentials” the individual cites in his request for review, testified as follows in response to questions from the DOE Counsel:

Q. And is it your opinion that he needs to have a certain amount of time to demonstrate rehabilitation or reformation, or is it your opinion that he's at rehabilitation and reformation now?

A. Well, he's rehabilitated in the sense that he no longer fits these criteria [for alcohol abuse]. No matter how you define the word recurrent, he doesn't fit in there anymore. Now, the word rehabilitation, of course, has such a broad meaning. What I think -- what I would recommend to him -- let's say tomorrow somebody said, "You get your Q clearance back, forget about this, it's a big mistake," I would still recommend to him that once a month you check in with someone, someone in addition to the probation officer, because some of the stuff returns, and as strong as you feel now, check in with someone once a month, and I would recommend that to him and I would recommend that to the Department, that that is what's needed, not for treatment, but as a safety measure to reassure him and to reassure ourselves that there is going to be some ongoing continued supervision, that we don't have a false cure here.

Q. And how long would that period -- how long would he need to do that?

A. I would recommend that for 18 months.

Tr. at 109-110.

Based on both experts’ testimony, the Hearing Officer found “that the individual is not fully rehabilitated from his alcohol use problems. There is still a risk of relapse that raises a concern for the psychiatrist and the psychologist.” 28 DOE ¶ 82,757 at 85,535. It is true, as pointed out by the individual, that the psychologist responded no to the question of whether the individual “would present a security risk to the United States, the defense, or to the Department of Energy.” Tr. at 107. However, presented with this opinion testimony by a psychologist on the ultimate question of law before the Hearing Officer, she properly gave it no weight as it was clearly outside the psychologist’s area of expertise. 28 DOE ¶ 82,757 at 85,535 n.8 (“Since the psychologist is not an expert in matters of DOE security, I do not believe he is qualified to provide testimony on this subject.”).

The Hearing Officer’s judgment in this regard was particularly appropriate given the psychologist’s opinion quoted above as to the continued risk of relapse, an issue that was within the bounds of his expertise. The danger to the national security in the event of such a relapse into alcohol abuse is clear. Because the use of alcohol at the very least has the potential to impair a user’s judgment and reliability, individuals who abuse alcohol may be susceptible to being coerced or exploited to reveal classified matters. Personnel Security Review, 27 DOE ¶ 83,030 at 86,644, Case No. VSA-0281 (2000). The psychologist essentially opined that this risk could be avoided by restoring the individual’s clearance, but monitoring him for the next 18 months. However, the Part 708 regulations clearly do not “contemplate[] . . . the conditional reinstatement of individuals who may be serious security risks.” Personnel Security Review, 26 DOE ¶ 83,008 at 86,555, Case No. VSA- 0102 (1997) (rejecting request for stay of decision while individual completed rehabilitation from drug use).

In short, I find no basis for the claims of bias and unfairly discounting testimony raised in the individual’s request for review. The Hearing Officer properly weighed the evidence before her, in particular the consensus of both experts as to the individual’s risk of relapse into alcohol abuse. The evidence in the record clearly supported her conclusion. I therefore cannot find that restoring the individual’s access authorization would 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: November 30, 2000

(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 variously in this Opinion as access authorization or security clearance.