Case No. VSA-0363, 28 DOE ¶ 83,013 (OHA November 30, 2000)

Case No. VSA-0363, 28 DOE ¶ 83,013 (OHA November 30, 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.

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 7, 2000

Case Number: VSA-0363

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

The individual has been an employee at a facility of the Department of Energy (DOE) for approximately twenty years. DOE Tab 4, Exhibit 1. After the individual tested positive for cocaine on a random drug test, a DOE security specialist conducted a personnel security interview (PSI) with the individual. DOE Tab 2, Exhibit 6; DOE Tab 4, Exhibit 1 at 15-16. The PSI did not resolve the security concerns of the DOE Office, which then suspended the individual’s access authorization and issued a Notification Letter. The Notification Letter included a Statement of Charges, identifying the derogatory information that led to the suspension. The cited charges were that (1) the individual deliberately falsified his history of illicit drug use, a security concern as specified at 10 C.F.R. § 710.8(f) (Criterion F); and (2) the individual had illicitly used marijuana and cocaine, a security concern as specified at 10 C.F.R. § 710.8(k) (Criterion K). DOE Tab 2, Exhibit 3.

After his access authorization was suspended, the individual requested a hearing to provide evidence in support of his eligibility for access authorization. DOE Tab 2, Exhibit 1. 10 C.F.R. § 710.21(b)(6). At the hearing, the individual presented the testimony of his drug abuse counselor, his wife, and six friends and family members. He also testified on his own behalf. The DOE presented the testimony of a Personnel Security Specialist. 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 ¶ 82,760, VSO-0363 (2000).

On September 7, 2000, the individual filed a Request for Review of the Hearing Officer’s opinion, Letter from individual to Office of Hearings and Appeals (OHA) (Sept. 5, 2000), and then filed a statement of issues to be reviewed on September 25, 2000. Letter from individual to Steven Goering, OHA Staff Attorney (undated). In his statement of issues, the individual asks why the DOE Office did not send him to “see a Psychologist, or Psychiatrist. This is what usually takes place in similar cases. I feel that I should be granted the opportunity to be evaluated by a certified, mental health professional” and that “an evaluation by a certified professional would have [lent] credibility to” the Hearing Officer’s opinion. Id. The individual also notes that the Hearing Officer “stated that a twelve month period is the standard requirement, for abstinence from substance related disorders. I am going into my [eighth] month of not only being abstinent, but also being actively involved with my outpatient, treatment program.” Id. 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.” Memorandum from Owen B. Johnson, Office of Safeguards and Security, to Director, OHA (October 18, 2000).

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. Issues Raised by the Individual

1. Request for Evaluation by Mental Health Professional

The individual appears to contend that the DOE had an obligation to send him for evaluation by a mental health professional. This is not correct. In many cases, a DOE office will ask for such an evaluation before requesting the authority to conduct an administrative review proceeding. But, as the Personnel Security Specialist testified in the present case, “that is actually a management call for the [DOE]. Management did review his case. They felt that since he had already tested positive [for] the use of illegal drugs that no new information would be gained by sending him to a DOE psychiatrist.” Tr. at 27.

Moreover, at least three mental health professionals have already evaluated the individual and provided diagnoses. In February and March 2000, after his positive drug test, a licensed psychologist evaluated the individual and diagnosed him as suffering from chemical dependency. Memorandum from Licensed Psychologist to Warren Gray, OHA, and attached facsimile cover sheet (June 18, 2000). Upon the individual’s discharge from a drug treatment center in April 2000, an alcohol and drug counselor (who testified at the hearing on behalf of the individual) provided a diagnosis of “Cocaine Dependency.” Enclosure to Letter from Alcohol and Drug Counselor to Warren Gray (June 12, 2000). Finally, an evaluation by another Licensed Psychologist on June 6, 2000, which included standardized psychological testing, concluded with a diagnosis of “Cocaine Dependence in Remission.” Id.

2. Whether the Individual is Rehabilitated or Reformed from Cocaine Dependence

The individual describes a statement by the Hearing Officer “that a twelve month period is the standard requirement, for abstinence from substance related disorders.” Letter from individual to Steven Goering, OHA (undated). The following is the statement from the Hearing Officer’s opinion to which the individual apparently is referring:

In most of the cases in which an individual has claimed to have been rehabilitated from substance-related disorders, we found that there is not sufficient evidence of rehabilitation until the individual has abstained from the use of all psychoactive substances for a period of at least twelve months, and a competent mental health professional has given an opinion that the individual is rehabilitated.

Personnel Security Hearing, 28 DOE ¶ 82,760 at 85,545. The above passage is merely a general description of a number of cases in which mental health professionals have testified as to the significance of twelve months of abstinence as a milestone on the road to rehabilitation. It is widely believed that rehabilitation in cases of substance abuse is no easy matter. Psychiatrists in many cases, for example, have testified that without at least one year of abstinence, they could not diagnosis the individual in question as rehabilitated.

In the present case, in addition to the fact that the individual been abstinent for less than 12 months, no expert has testified in the present case that the individual has achieved rehabilitation. The absence of such testimony is glaring, standing alongside the conclusions of the three evaluations of mental health professionals described above that the individual suffered from cocaine dependency. It would certainly not be impossible for an individual to demonstrate rehabilitation from a 23-year cocaine habit in the absence of an expert opinion, based solely upon an extended period of abstinence. We would no doubt take into account claims such as the individual’s in his statement of issues that he has been “actively involved” with his treatment programs. However, without supporting expert testimony, the period of abstinence required would be much longer than the 10 months of abstinence he has achieved (assuming he has remained drug-free to date) and the 12 months to which the individual refers in his statement as a “standard requirement.”

Thus, while I commend the individual on the strides he has made in tackling a serious drug problem, I agree with the Hearing Officer that the individual cannot at this time be “considered rehabilitated in view of the relatively short time he has been abstinent and in the absence of a finding from a competent mental health expert.” Personnel Security Hearing, 28 DOE ¶ 82,760 at 85,546. 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.