Case No. VSA-0352, 28 DOE ¶ 83,019 (OHA April 19, 2001)
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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.
April 19, 2001
DEPARTMENT OF ENERGY
OFFICE OF HEARINGS AND APPEALS
Opinion of the Director
Name of Case: Personnel Security Review
Date of Filing: February 16, 2001
Case Number: VSA-0352
This Opinion considers a Request for Review and Statement of Issues filed by XXXXXXXXXXXX (the individual) concerning his eligibility for access authorization (1) under the regulations set forth at 10 C.F.R. Part 710, entitled "Criteria for Access to Classified Matter or Special Nuclear Material." As discussed below, after carefully considering the record before me in light of the relevant regulations, I recommend against restoring the individual’s access authorization.
I. Background
The events leading to the suspension of this individual’s access authorization are fully set forth in a decision issued by an Office of Hearings and Appeals (OHA) Hearing Officer. Personnel Security Hearing (Case No. VSO-0352), 28 DOE ¶ 82,774 (2000). I will not reiterate all the details of that case here. For purposes of the instant security review, the relevant facts are as follows.
A DOE Operations Office learned of certain derogatory information about this individual, which caused it to suspend his access authorization. That Office issued a Notification Letter to the individual, citing derogatory information that falls within 10 C.F.R. § 710.8(l) (Criterion L). (2)
The Criterion L concern arose when the individual took a random drug test. The laboratory analyzing the individual’s urine reported the results of the test as “substituted: not consistent with normal human urine.” (3) This result was considered a refusal to test, and carried the same consequences as a positive drug test.
The Hearing Officer convened a hearing in order to allow the individual to resolve the doubt regarding his continued eligibility for access authorization. At the hearing, the DOE Counsel presented two witnesses: a DOE personnel security specialist and a Medical Review Officer (MRO) who reviewed the laboratory’s test results. The individual testified and called seven witnesses: two supervisors and five colleagues.
II. Opinion of the Hearing Officer
The Hearing Officer made the following key findings of fact regarding the collection and testing of the individual’s urine. The Hearing Officer noted that the collection of the individual’s sample was supervised by a nurse at a local clinic. The Hearing Officer stated that the nurse gave the individual forms to fill out and provided him with one specimen cup. The Hearing Officer then found:
after providing the specimen, the individual asked the nurse why there was only one specimen cup. She replied that the new boxes sent to the collection site had only one bottle inside. The individual watched the nurse put the label on and left. The specimen was sent to the lab for testing. The lab determined that the chemical composition of the specimen was not consistent with that of normal human urine. The lab indicated that the specimen was 'substituted,' and did not run any further tests on the specimen. The lab sent the test results to a company that provided medical review officer (MRO) services to DOE. An MRO employed by that company reviewed the test results and classified the specimen as 'a refusal to test,' a result which carries the same consequences under DOE drug testing policy as a positive test. The sample was not retested.The Hearing Officer found evidence of “non-trivial procedural irregularities in the individual’s test.” Id. She noted that the individual questioned the nurse about the irregularity he observed in which she only gave him one specimen bottle. The Hearing Officer also pointed out that the collection nurse indicated on a form that a “split sample” [i.e., two, labeled specimen bottles] was required. The Hearing Officer stated that upon receiving the sample, the laboratory noted that single specimen as a discrepancy. The Hearing Officer further noted that the individual’s supervisor, who is a drug test coordinator, testified that it was his belief that even though regulations require a “split sample,” sometimes the sites receive single bottle kits, instead of two-bottle kits. Id. at 85,600-01.
The Hearing Officer found that these circumstances raised substantial doubt about the handling of the sample and the circumstances of the collection. She stated that if a “split sample” were available or a retest performed, the accuracy of the first test could have been verified. Id. at 85,601.
The Hearing Officer also believed that the evidence presented by the DOE in this case was faulty because there were no DOE witnesses who were employees of the clinic that collected the sample or of the lab that performed the drug test, or who were part of the chain of custody of the sample. Id.
The Hearing Officer found persuasive the testimony of the individual’s co-workers/friends, who believed that this individual would not tamper with his specimen. She was particularly impressed by the testimony of one of the individual’s colleagues who was formerly the chief of narcotics on a regional police force. This witness testified that he was able to recognize drug abusers and he stated that in 13 years he never saw any indication of a drug problem in the individual. Id. at 85,602. Finally, the Hearing Officer was convinced by the forthright manner of the individual and found credible his testimony that he did not adulterate his specimen. Id.
Based on the above findings, the Hearing Officer concluded that the security concerns raised in the notification letter had been resolved. She found the witnesses presented by the individual to be persuasive and that “the procedural discrepancies in the record of the individual’s drug test reflect the possibility of irregularities in the handling of his specimen.” Id. at 85,603. She therefore concluded that the security concerns had been mitigated, and that the individual’s access authorization should be restored.
III. Statement of Issues and Response
Pursuant to 10 C.F.R. § 710.28(b), the Office of Safeguards and Security (OSS) filed a statement setting forth the focal issues in the review phase of this proceeding (hereinafter referred to as “Statement of Issues,” or “Statement”). The Statement objects to the Hearing Officer’s conclusion that the individual resolved the Criterion L concerns. Specifically, the OSS submission disagrees with the Hearing Officer’s statement that there is a doubt as to whether the individual’s sample was appropriately collected and handled. With respect to the Hearing Officer’s concern that there were no witnesses with personal knowledge of the chain of custody to testify in this case, the OSS argues that the documentary evidence showing the chain of custody was both available and sufficient.(4)
The individual filed a response to the OSS submission. The individual again raises the concern that a “split sample” was not collected. The individual also alleges that the collection facility used in this case has made numerous mistakes. The individual also states that laboratories make mistakes and contends that he should have been permitted to have a retest.
Moreover, seven co-workers/friends of the individual filed statements attesting to his good character and reliability. One statement asserted concerns regarding DOE drug testing procedures.
IV. Standard of Review
Part 710 provides that if, after considering all the factors in light of the relevant criteria, the Director of the Office of Hearings and Appeals 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 a rule, the Hearing Officer is responsible for considering the demeanor and credibility of witnesses. 10 C.F.R. § 710.27(b). She also assesses the appropriate weight to be given to their testimony. Absent some error, I will not supplant my judgment for that of the Hearing Officer in such matters. Personnel Security Review (Case No. VSA-0084), 26 DOE ¶ 83,004 (1996). As discussed below, I see several significant errors in the Hearing Officer’s conclusions and I shall therefore reverse her recommendation to restore this individual’s access authorization.
V. Analysis
At the outset, I must emphasize that I treat concerns about the validity of laboratory conclusions regarding urine specimens very seriously. Drug testing for Federal agencies is widely performed, and facilities engaged in such testing are held to exacting standards. However, they cannot be infallible, and we must be vigilant in our examination of contentions raised by individuals in the administrative review process to ensure that technical standards are followed carefully and consistently. As a result, I look unfavorably upon any errors made in the testing process. However, the mere allegation of a procedural error does not warrant a restoration of an access authorization. In order for me to conclude that, due to a procedural error in testing, an access authorization should be restored, I would have to be convinced that the procedural irregularity was significant enough that it was likely to have produced an error in the test result itself.
As I indicate below, none of the evidence provided by the individual casts any doubt upon the validity and reliability of the collecting and testing procedures that were followed with respect to his specimen or upon the conclusion reached by the laboratory, namely that his specimen was adulterated. The evidence convincingly shows that the specimen provided by this individual was well outside normal limits for human urine. Other than alleging that he was entitled to a two-bottle process, the individual offers no reason to believe that there was any error in the single bottle testing process here. (5) He certainly has not provided any basis for me to conclude that the test result itself was incorrect.
In the instant case, the Hearing Officer correctly noted that only a single sample was available for testing. She then concluded that this single sample procedure was a cause for concern and that if a “split sample” were available, a retest could have been performed and the accuracy of the first test could have been verified. 28 DOE at 85,601.
Her conclusion here is based on a misunderstanding of the single sample process and the record in this case. In the two-bottle process, a specimen is divided and placed into two secured and labeled bottles. The testing laboratory is able to send the unopened second sample bottle, under its original seal, to a second laboratory for an independent review of the test results. If there is only a single bottle process, laboratory testing practice appears to be as follows. When a specimen is tested, the seal of the original specimen bottle is broken and a portion of the urine is poured off into a prepared test tube called an “aliquot tube.” The original specimen bottle is recapped and preserved, and the urine in the aliquot tube is then tested. If the aliquot tube contains evidence of an illegal drug (or there is some other irregularity), a second aliquot is poured from the original specimen bottle into a completely different, fresh aliquot test tube, and a second test is performed. This single bottle process is practiced in testing performed for the DOE. E.g., Personnel Security Hearing (Case No. VSO-0126), 26 DOE ¶ 82,776 (1997). It is thus clear that even though there is a single specimen bottle, normally a laboratory does perform a confirmatory test. Performing a retest from a single specimen bottle is a practice that we have seen elsewhere in other cases. (6)
After reviewing the record in this case, I find that even though the individual provided only a one-bottle urine sample, that sample was in fact properly tested and then retested by the testing laboratory. The MRO testified that the chain of custody documents indicate that the sample was given an initial test which showed abnormal creatinine and specific gravity levels. He stated that the specimen was therefore retested, with the same result. Transcript of Hearing, Case No. VSO-0352 (Tr.) at 62 and 63.
The documentary evidence in the record supports that testimony. A DOE exhibit shows that a portion of the specimen was tested on August 19, 2000. DOE Tab 3, Exh. 2 at 14. As stated above, the MRO concluded that the sample was “substituted.” On August 20, another portion of the urine specimen was removed from the test bottle and tested, with the same result. Id. I believe that this test and retest are very important elements in this case and reasonably establish the accuracy of the results. The individual has submitted no evidence at all to the contrary. The fact that the individual was not offered the opportunity to have a sample from a second bottle tested by another laboratory does not convince me that there is any likelihood that the test results from the testing laboratory for his specimen are incorrect.
Overall, I am convinced that the single bottle testing process is a fair one that produces accurate results. I am also persuaded that in this case, the laboratory performed the test and retest in a reliable manner. See Tr. at 74-76. Thus, the fact that there was no “split sample” does not suggest to me that there was any unfairness or unreliability that could or should have been corrected by sending a second, unopened sample to a different laboratory.
In fact, the only anomaly in the entire process drug testing process in the instant case took place in the collection phase. As stated above, a single specimen bottle was provided in the test kit, and the nurse who oversaw the collection checked a box on a form indicating that a “split sample” was required.(7)
This does not convince me that there was any actual error in the collection process. I find no reason to believe that any problem existed in the collection process itself, such as that the specimen was tampered with, or that the collection bottles were not pristine. In fact, it is clear that the individual was present for the selection and labeling of the specimen kit and testified that there was nothing unusual about it. Tr. at 201. This is the same procedure typically used throughout the DOE complex. His complaint in this instance is that there was only one bottle, and that a box on a form was improperly checked. He grossly exaggerates the consequences. Assuming there should have been two bottles in the test kit, I still see nothing that undermines the validity of the laboratory’s conclusion that the individual’s specimen was “substituted,” i.e., not consistent with normal human urine. This is a very serious matter, one which raises doubts about the honesty and trustworthiness of the individual, and only evidence which raises questions about the laboratory’s conclusion or some real unfairness to the individual can vitiate that conclusion. I see no reason to believe that there was anything about this collection process to raise a suspicion about the subsequent handling of the specimen, the competence of the testing laboratory, or the validity of the test results. As I stated above, the collection nurse checked a box indicating that a “split sample” was required. Even if a “split sample” was in fact required, I am not convinced that it was inappropriate for the collection nurse to proceed with the collection using a single-bottle kit, since it appears that it was the only one available to her.
In his Response, the individual raises a new concern about the collection. He now maintains that he initialed two seals and that he affixed only one over the top of the specimen container. He questions what the collection nurse did with the other seal. He seems to be implying that the nurse may have used this other seal in some improper manner that led to the adverse test result in this case. I cannot give any credence to such a speculative assertion. I have no reason to believe that the collection nurse would have acted unprofessionally, and carelessly affixed an allegedly unused label to a sample not provided by the individual. Moreover, this new speculation is not consistent with the individual’s testimony. At the hearing the individual stated that he “watched [the collection nurse] affix the labels [on the specimen bottle].” Tr. at 201 (emphasis added). See also Tr. at 35 (testimony by MRO indicating that a single test bottle has more than one seal). This testimony suggests that both labels initialed by the individual were accounted for.
Next, the Hearing Officer believed that testimony from individuals who had personal knowledge regarding the chain of custody of the specimen in this case was necessary. She stated that although the MRO gave credible testimony, he had no personal knowledge of the lab’s procedures. I disagree with the Hearing Officer about whether a DOE Office should be required to call laboratory witnesses to testify regarding laboratory procedures in cases challenging the results of a particular test. It was the burden of the individual to bring forth witnesses to demonstrate his position that a laboratory result was inaccurate. I therefore do not find that the DOE is required to bring forth witnesses who have personal knowledge of a specific urine sample in a case in which the validity of a particular test result is challenged. (8)
I also see no basis to suspect the accuracy of the results of the testing laboratory. I reviewed the chain of custody documents in this case. DOE Tab. 3 Exh. 1 and 2. I see nothing in them that gives rise to any concern regarding the reliability of the test. In this case, the contention that there was some impropriety in the testing procedures is without any foundation. It is pure speculation. (9)
In this regard, it is by now well established that in personnel security cases involving the accuracy of a drug test result, it is the individual’s burden to provide a reason to believe that an error in the test result occurred. (10) Personnel Security Hearing (VSO-0345), 28 DOE ¶ 82,753 (2000). The individual in this case has not shown any reason to believe that the test was inaccurate. His conjecture that the testing laboratory or the collection site must have made an error is not sufficient.
I note that the Hearing Officer found particularly persuasive the testimony of one of the individual’s colleagues who was formerly a chief of narcotics on a regional police force. She noted that this witness had substantial knowledge of drug abuse and had received specialized training in detecting behavioral changes caused by drug abuse. The Hearing Officer pointed out that this witness testified that in 13 years he never saw any indication of a “drug problem” in the individual. 28 DOE at 85,602.
I believe that the Hearing Officer’s reliance on this testimony was misplaced. This witness’ testimony that he could have detected, through behavioral changes, if the individual was a drug abuser or had drug problems offers nothing significant in this case. There is no basis for supposing that the individual had a “drug problem,” or was a drug abuser. (11) The individual could certainly have been involved in sporadic drug use or even a one time drug use the day before the random drug test. I see no reason to believe that this witness would have been able to detect minimal or one time drug use through behavioral changes alone. In fact, there is no testimony whatsoever on this point. I find the Hearing Officer’s particular reliance on this witness’ testimony, because of his expertise in the area of drug abuse, to be unwarranted with regard to the individual’s honesty and reliability.
I have also reviewed the letters submitted by the individual’s co- workers/friends. These tributes uniformly attest to the individual’s good character, reliability and trustworthiness. The writers assert that they have never seen the individual use drugs. I accept the validity of those letters. However, these testimonials are not sufficient to tip the balance in this case. The adulterated urine sample in this case raises a security concern that cannot be overcome by the affirmations of friends of the individual who claim that they never saw him use drugs. See Personnel Security Review (Case No. VSA-0327), 28 DOE ¶ 83,005 (2000)(aff’d OSA August 4, 2000).
VI. Conclusion
As we have often stated, a DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal matter in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. E.g., Personnel Security Hearing (Case No. VSO- 0216), 27 DOE ¶ 82,781 (1998). In this type of case we are dealing with a different standard, one designed to protect national security interests. Once the DOE has made showing of derogatory information raising security concerns, the burden is on the individual to convince the DOE that restoring his access authorization “would be clearly consistent with the national interest” 10 C.F.R. § 710.27(d).
The Hearing Officer misapplied this standard. Her finding that there is a “possibility of irregularities in the handling of [the individual’s] specimen” is not sufficient to resolve the security concern that arises from the adulterated sample. 28 DOE at 85,603. It does not demonstrate that it would be clearly consistent with the national interest to restore this individual’s access authorization.
Furthermore, I am not in agreement with the Hearing Officer’s finding of “non-trivial procedural irregularities in the individual’s test.” As I stated above, the alleged irregularity occurred in the collection phase, and that irregularity does not suggest that the collection site was careless or did anything improper with respect to the collection itself. There is no reason to suspect that the sample was tainted by some action of the collection laboratory or became tainted at a later phase. The purported anomaly in the collection process, i.e., that a “split sample” was required but was not taken, gives rise to no concern that the collection site itself is unreliable. If there was any irregularity at all, it was ministerial. There is certainly no reason to believe that it had any effect on the accuracy of the test results.
In sum, I find only a possible, but ultimately insignificant, inconsistency in the collection process: a hearing witness indicated that a “split sample” should have been taken; and a collection nurse marked on a form that a “split sample” was required, but, having only a single sample kit, proceeded to collect only a single sample. This slight deviation does not establish any unfairness in this proceeding. Nor does it taint the later phases of the drug testing protocol: the handling of the sample, and the reliability of the testing laboratory’s processes. The individual has produced no explanation for the adulterated sample. Accordingly, I find that the Hearing Officer was incorrect in determining that the individual had resolved the Criterion L concern in this case.
As indicated by the foregoing, 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: April 19, 2001
(1)Access authorization is defined as an administrative determination that an individual is eligible for access to classified matter or is eligible for access to, or control over, special nuclear material. 10 C.F.R. § 710.5(a). Such authorization will be referred to from time to time in this Opinion as access authorization or security clearance.
(2)Criterion L includes information that an individual “engaged in any unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable or trustworthy. . . . Such conduct or circumstances include. . . violation of any commitment or promise upon which DOE previously relied to favorably resolve an issue of access authorization eligibility.”
(3)The sample had an abnormal level of creatinine and an abnormal specific gravity. See, Transcript of Personnel Security Hearing (Case No. VSO-0352) at 38-41; DOE Tab 3 Exh. 2 at 14.
(4)The OSS also contends that Department of Transportation (DOT) drug testing regulations, which refer to a double bottle collection process, provide that if the first test specimen is found to be adulterated or substituted, the employee has no right to have the second specimen tested, if one existed. Accordingly, the OSS maintains that the issue of whether a “split sample” was required is irrelevant. I agree that the “split sample” issue is irrelevant here, but, as discussed below, for reasons different from those raised by OSS.
(5)I recognize the testimony of the individual’s supervisor to the effect that under DOE “policy” this individual is subject to Department of Transportation regulations requiring a double-bottle sample. His testimony seemed to me to be rather hesitant and confused. Tr. at 178-79. See 49 C.F.R. § 5331(d)(5). The MRO also referred to the “split sample” process. Tr. at 48. However, as an outside contractor who reviews test results, the MRO is not an expert on whether this individual is entitled by regulation or policy to have a “split-sample” drug test. Thus, all in all, I find the evidence developed in this case on whether a “split sample” was required is too weak for me to review. Ultimately, however, a determination as to whether the individual was entitled to a “split sample” is not necessary to my decision on the merits of this appeal.
(6)In fact, in other personnel security case before OHA Hearing Officers, laboratory personnel have described the testing procedures in virtually the same manner as the tests were conducted in this case. E.g. Personnel Security Hearing (Case No. VSO-0345), 28 DOE ¶ 82,753 (2000); Personnel Security Hearing (Case No. VSO-0126), 26 DOE ¶ 82,776 (1997). The single sample process does not seem to be an unusual one.
(7) It is worthwhile reiterating here that the collection nurse did not indicate that she was in fact taking a “split sample.” She only indicated on the form that a “split sample” was required. As noted above, according to the individual, she acknowledged that the test kits she had available were not “split sample” kits.
(8)I doubt that testimony by laboratory personnel could provide any significant information, since laboratories typically receive and test far too many specimens for any lab employee to have personal knowledge of a specific urine specimen. However, if an individual seeking access authorization asks for the names of the personnel who were on record as being involved in the testing of his specimen, the DOE is obligated to provide that information so the individual has the opportunity to call these persons as witnesses.
(9)As the Hearing Officer stated, a laboratory employee noted for the record that the collection nurse had checked the “split sample required” box, but that the second bottle was missing when the individual’s sample arrived at the laboratory. 28 DOE at 85,601. This notation actually confirms the meticulousness of the laboratory’s procedures, and that of its employees, as well. On balance, it reenforces my overall conclusion that the testing laboratory itself was reliable.
(10)The individual could certainly have requested that the laboratory personnel involved in processing his sample give testimony by telephone. However, the record in this case indicates that the individual’s attorney elected not to call any expert witnesses, but rather to attempt to develop his case only through cross examination of DOE witnesses. Memorandum of August 4, 2000 prehearing telephone conference.
(11)The Notification Letter did not refer to any security concern to the effect that the individual had used illegal drugs or controlled substances. A security concern of this nature is specifically set forth at 10 C.F.R. § 710.8(k). As stated above, the sole concern raised by the DOE Office in this case is a Criterion L concern related to reliability, honesty, and trustworthiness.