Case No. VSO-0020, 25 DOE ¶ 82,756 (H. O. Lipton May 12, 1995)

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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 XXXXX's.

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer Opinion

Case Name: Personnel Security Hearing

Date of Filing: February 10, 1995

Case Number: VSO-0020

This Opinion concerns a request for a hearing that was submitted to the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) by XXXXX (hereinafter "the individual") concerning his continued "Q" access authorization.

The regulations governing these proceedings 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." The Department of Energy's XXXXX Operations Office (DOE/XXXXX) suspended the individual's access authorization under the provisions of Part 710.

I. Background

This administrative review proceeding was commenced by the issuance of a Notification Letter dated December 5, 1994. In that letter, the individual was informed that information in the possession of the DOE/XXXXX created a substantial doubt concerning his eligibility for "Q" access authorization. In accordance with 10 C.F.R. ' 710.21, the Notification Letter included a statement setting forth the derogatory information in the possession of the DOE/XXXXX that created the substantial doubt concerning the individual's eligibility for access authorization. The derogatory information involved the individual's admitted use of illegal drugs.

The Notification Letter also informed the individual that he had the option of requesting a hearing before an OHA Hearing Officer and that if he did not request a hearing, the DOE/XXXXX Manager would make a final determination regarding his access authorization. 10 C.F.R. ' 710.21(b)(3).

In a letter dated January 23, 1995, the individual requested a hearing, but did not specifically respond to the allegations set out in the Notification Letter. The individual's request for a hearing was forwarded by the DOE/XXXXX to the OHA. On February 14, 1995, I was appointed the Hearing Officer in this matter. In accordance with 10 C.F.R. ' 710.25(e) & (g), the hearing was scheduled for XXXXXXXXXXXXXX, at XXXXXXXXX. XXXXX.

At the hearing, the individual represented himself. When given the opportunity to make an opening statement, the individual responded by stating that he had been advised not to say anything during the hearing, and therefore would not participate.

The DOE Counsel called the following witnesses to testify for the DOE: (i) a DOE/XXXXX Personnel Security Specialist; and (ii) a DOE Psychiatrist. These witnesses provided information concerning the charges set forth in the Notification Letter. In keeping with his stated intention, the individual did not testify on his own behalf, submit to examination by the DOE Counsel, present any witnesses, cross-examine any DOE witnesses, nor submit any documents to support his position. 1/

After a careful review of the relevant portions of 10 C.F.R. Part 710 and in light of the circumstances surrounding this case, I will not render an Opinion concerning the individual's continued access authorization. Rather, I will close the record in this case and return it to the Manager at DOE/XXXXX who will make the final decision on whether the individual's "Q" access authorization should be restored. The discussion below explains why I have reached this result.

II. Discussion

Section 710.21(b)(6) provides that "if the individual so requests, a hearing will be scheduled before a Hearing Officer. . . for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization. " (Emphasis added.) Thus, it is clear that the intent of the regulations is that the OHA Hearing Officer will, upon request, schedule a hearing to take additional information from the individual. The Hearing Officer then evaluates that information (Section 710.27 (a) and (b)) and renders his opinion on the record developed (Section 710.27 (d)). The regulations do not provide for the situation that developed in the instant case, in which an individual requested a hearing, but did not produce any additional information at the hearing to support his access authorization, or in fact participate in the hearing to any degree.

Accordingly, I reviewed Part 710 as a whole for guidance in this regard. From that review, I have concluded that the regulations governing the proceeding do not intend to provide an individual with a right to a review on the record by an OHA Hearing Officer when the individual does not intend to utilize the hearing to provide any additional information whatsoever "supporting his eligibility for access authorization." My reasoning follows.

Part 710 indicates that once information is received which raises a question concerning the continued eligibility of an individual for DOE access authorization and the Manager has authorized suspension of access authorization, the Manager must submit a request to conduct an administrative review proceeding to the Director, Office of Safeguards and Security. 10 C.F.R. ' 710.10(d). 1/ Once this authorization is received, the Manager notifies the individual of his questioned eligibility for access authorization through a Notification Letter. 10 C.F.R. '710.21(a).

The Notification Letter informs the individual that he has the option to have the substantial doubt regarding eligibility for access authorization resolved in one of two ways: (i) "by the Manager, without a hearing, on the basis of the existing information in the case" or (ii) "by personal appearance before a Hearing Officer (a "hearing")." 10 C.F.R. '710.21 (b)(3)(i) and (ii). It is in this context that the regulations indicate that the purpose of the hearing is to afford the individual an opportunity of supporting his eligibility for access authorization. 10 C.F.R. '710.21(b)(6).

Thus, Section 710.21(b)(3) and Section 710.21(b)(6) instruct that the individual's choice is to have the questions regarding his eligibility for access authorization resolved either by the Manager, based on the existing information, or by a Hearing Officer, who has convened a hearing to receive additional information from the individual. These choices are mutually exclusive. The regulations do not appear to contemplate that an OHA Hearing Officer will resolve the matter in a case in which no new information is provided. In fact, the regulations indicate that in a case in which no additional information is submitted, it is the Manager who is to resolve the issue of access authorization.

This reading of the overall intent of the regulations is further supported by the provision specifying that type of treatment in an analogous case. It states that in the event the individual fails to appear at the time and place specified, "the record in the case shall be closed and returned to the Manager, who will then make a final determination regarding the eligibility of the individual for DOE access authorization." 10 C.F.R. '710.25(e). I believe that the instant case, in which the individual simply appeared but did nothing more, is so close to failing to appear that it should be accorded the treatment required by the regulations in the case of failure to appear. Given this reading of the regulations, I believe that the case should be returned to the Manager for a final determination.

Another section of this part gives further credence to my view that the regulations do not intend to provide the right of an automatic review by an OHA Hearing Officer. Section 710.6(a) indicates that an individual must cooperate with the DOE by giving full and frank answers to the DOE's relevant and material questions pertinent to the individual's eligibility for access authorization. This Section applies to the investigative stage of the access authorization process. It refers to the DOE's background investigations or re-investigations, to personnel security interviews and other investigative activities. This Section indicates that if the individual fails to cooperate fully and provide full responses, the DOE may terminate access authorization or suspend processing of access authorization. The regulations then provide that if an individual believes that the provisions of Section 710.6(a) were inappropriately applied, he may file a written appeal of the action with the Director, Office of Safeguards and Security. 10 C.F.R. ' 710.6(b). This Section provides for a review of objections that is to be performed by the Office of Safeguards and Security. The Section thus provides another example of an instance in which there is no right to a review by an OHA Hearing Officer.

My conclusion is that Sections 710.6, 710.21(b)(3) and (b)(6) and 710.25(e), when read together, indicate that the right to a review by an OHA Hearing Officer of a determination to suspend a DOE access authorization exists only in specified circumstances. The review is appropriate in a case in which an individual requests a hearing to provide additional information. If the individual does not offer any additional information, there is no need for a hearing, and no right to the issuance of an opinion by a Hearing Officer. I see no general right to a hearing in front of an OHA Hearing Officer. I see no intent implied in the regulations for a broad availability of a review by a Hearing Officer and issuance of an opinion in every case.

Conclusion

In sum, I do not believe that the Part 710 regulations were promulgated with the intent of providing an individual a right to a hearing at which the DOE presents its case, but at which there is no corresponding duty of the individual to participate and furnish supplemental information. I believe that when an individual does not participate at a hearing that he has requested, the regulations do not envision that the OHA Hearing Officer will issue an Opinion providing a substantive review of the record. Section 710.25(e) and Section 710.21(b)(3) indicate that if an individual intends to present no information, or fails to appear at a hearing, the case is to be resolved by the DOE Manager. I hereby direct that result in this case. The matter of the individual's access authorization should be resolved by the Manager on the basis of the existing record.

Virginia A. Lipton

Hearing Officer

Office of Hearings and Appeals

1/ In fact, the individual missed two deadlines that were set for the pre-hearing submission of documents and a witness list. The individual continued to reserve an opportunity to submit documents and a witness list by the date of the hearing and I agreed to allow him to do so as late as the day of the hearing. The individual did not file any documents or a witness list. 1/ Section 710.5 states: "Operations Office Manager or Manager means the Manager of a DOE Operations Office, the Manager of the Rocky Flats Office, the Manager of the Pittsburgh Naval Reactors Office, the Manager of the Schenectady Naval Reactors Office, and for Washington, DC area cases, the Director, Office of Safeguards and Security." (Italics in original.) - 8 -