Case No. VSO-0273, 27 DOE ¶ 82,814 (H.O. Lipton August 11, 1999)

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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.

August 11, 1999

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: April 30, 1999

Case Number: VSO-0273

This Opinion concerns the eligibility of XXXXX (hereinafter "the individual") to hold an access authorization.(1) The regulations governing the individual's eligibility 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." This Opinion will consider whether, based on the record testimony and other evidence presented in this proceeding, the individual's suspended access authorization should be restored. As discussed below, I find that the individual in the present case has not met his burden to bring forward sufficient evidence to show that his security clearance should be restored.

I. BACKGROUND

This administrative review proceeding began with the issuance of a Notification Letter, informing the individual that information in the possession of the DOE created substantial doubt pertaining to his eligibility for an access authorization in connection with his work. In accordance with 10 C.F.R. §710.21, the Notification Letter included a detailed statement of the derogatory information.

The first area of DOE concern involves information that indicated that the individual has been or is a user of a illegal drugs. 10 C.F.R. §710.8(k) (hereinafter Criterion K). The second area of concern identified in the Notification Letter involves information that the individual has engaged in conduct tending to show that he is not honest, reliable or trustworthy. 10 C.F.R. § 710.8(l)(Criterion L).

The Notification Letter informed the individual that he was entitled to a hearing before a Hearing Officer in order to respond to the information contained in that letter. The individual requested a hearing, and that request was forwarded by the DOE Office to the Office of Hearings and Appeals (OHA). I was appointed the Hearing Officer in this matter. In accordance with 10 C.F.R. § 710.25(e) and (g), the hearing was convened.

At the hearing, the individual was represented by an attorney. He testified on his own behalf, and presented the testimony of a forensic toxicologist (hereinafter the toxicologist)(2), his wife, his supervisor and a friend. The DOE Counsel presented the testimony of a security specialist, and that of a DOE consultant psychiatrist (DOE psychiatrist).

II. Statement of Derogatory Information

As stated above, the area of concern identified in the Notification Letter involves the individual’s illegal use of drugs. As described in the letter, the individual tested positive for marijuana in a DOE drug test. In a personnel security interview (PSI) the individual stated that he had never used marijuana in his life. However, he stated that ten days before the drug test, he attended a party during which many guests were smoking marijuana, and that someone whom he did not know blew marijuana smoke in his face. He stated at the PSI that he could not give any other explanation for the positive drug test. The positive drug test gave rise to the Criterion K concern. At the PSI the individual refused to identify any individual present at the party who could corroborate this explanation for the positive drug test. This refusal gave rise to the Criterion L security concern.

III. The Hearing

At the hearing the DOE security specialist explained and supported the position that the DOE has a security concern regarding a holder of an access authorization who not only uses illegal drugs, but also refuses to be completely forthcoming about all the surrounding circumstances of the drug exposure. (3)

In his testimony, the individual advanced a new theory to explain his positive drug test.(4) He stated that after the commencement of this administrative review proceeding, he heard for the first time that marijuana had been introduced into the food that he had eaten during the party that he had attended. He testified that he believed that this unintentional ingestion of marijuana must have caused the positive drug test. However, the individual continued to refuse to provide any corroboration for these assertions and refused to name any person who could corroborate these events. He stated only that he was taken to the party by the fiancé of his wife’s relative, and that he did not even know the name of any other person at the party.

The toxicologist testified that it is not inconsistent with current medical studies on the subject of oral ingestion of marijuana to conclude that a person who has consumed marijuana in food could have a positive drug test 10 days later. Tr. at 132-34.(5) He referred to several articles in professional journals to support this position. Individual’s Exhibit 1. The DOE psychiatrist testified that it was highly unlikely that the individual in this case could have unknowingly and unintentionally consumed sufficient marijuana in his food so as to cause a positive drug test ten days after consumption. He believed that the individual’s positive drug test was the result of his own deliberate exposure to marijuana. Tr. at 167-68, 180-81.

The individual’s wife strongly supported the individual’s assertion that he had never intentionally used marijuana in his life. While she knew the identity of the person who had invited the individual to the party at which the marijuana exposure allegedly took place, she would not reveal the identity of that individual. Since she had not attended the party herself, she could not corroborate any of the details about the party to which the individual himself had testified.

The individual’s supervisor testified that the individual is a superior employee and that he had never known the individual to use marijuana. The individual’s friend has known him for about 35 years and also has never known him to use marijuana. According to the friend, he and the individual get together only about three or four times a year. He could therefore not give meaningful testimony about whether the individual currently uses illegal drugs.

IV. Analysis

The Hearing Officer’s role in this proceeding is to evaluate the information presented by the DOE office and the individual, and to render an opinion based on that evidence. The decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. See 10 C.F.R.§ 710.7(a).

A DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal case, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. In this type of case, we use a different standard, one designed to protect national security interests. A hearing is "for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization." 10 C.F.R. § 710.21(b)(6). The burden is on the individual to come forward at the hearing with evidence to convince the DOE that restoring his access authorization "will not endanger the common defense and security and will be clearly consistent with the national interest." 10 C.F.R. § 710.27(d).

This standard implies that there is a strong presumption against the granting or restoring of a security clearance. See Dep’t of Navy v. Egan, 484 U.S. 518,531 (1988) ("clearly consistent with the national interest" standard for the granting of security clearances indicates "that security determinations should err, if they must, on the side of denials"); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991)(strong presumption against the issuance of a security clearance). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual in cases involving national security issues. Personnel Security Hearing (Case No. VSO-0002), 24 DOE ¶ 82,752 at 85,511 (1995).

I was not persuaded by the individual’s version of the events leading to the positive drug test. According to his testimony, he was taken to a party by the fiancé of a relative. Tr. at 51. He knew no one at the party except this one person, and would not even know how to reach any other attendees. Tr. at 53. He stated that he would now be unable to locate the residence at which the party was held. Tr. at 83. He further stated that, over his objections, a person whom he did not know blew marijuana smoke in his face four times, and that he ate some food that he later learned contained marijuana. Tr. at 61, 82. He testified that the unnamed friend who took him to the party later confirmed that the food contained marijuana, after he asked some of the other attendees. Tr. at 82. He stated that he did not leave the party immediately upon learning that marijuana was present because, since he came with a friend, he had no transportation of his own. He indicated that he was too far from a pay telephone to call for assistance, and then suggested that he was too intimidated to use the house phone. Tr. at 108-10.

I find these explanations not credible. I am totally unconvinced by an account that is supported by references to an unnamed friend, and an unknown locale. I am certainly not persuaded by the individual’s assertion that the party food contained marijuana, since it is based on a third-hand report, recounting statements of persons that the individual himself does not know. Although this individual is overall quite articulate, I found his testimony regarding the party to be evasive and confusing. E.g., Tr. at 58, 100-02, 107, 108-110. His statements regarding why he did not immediately leave the party when he realized marijuana was being used were, in my view, non-sensical. Without any corroboration, his account is inherently unbelievable.

The individual’s explanation as to why he was unable to provide corroboration is also not credible. I am simply not convinced that even though the individual knew his security clearance was at risk, he would not divulge the name of the friend, because he purportedly needed to protect the friend from adverse family implications. Tr. at 51. I cannot give credence to the individual’s explanation, that although he holds an access authorization, he was nevertheless unconcerned about being in the company of drug users, while his friend, who allegedly does not hold a security clearance, does not want anyone to know he was at that party. Tr. at 106. His reasons for refusing to provide corroboration are as unbelievable to me as his statements as to how he came to have a positive drug test. I have strong reservations about the honesty of this individual.

Finally, the law applicable to this case is unequivocal. In personnel security cases in which an individual who has had a positive drug test seeks to overcome the security concern with an explanation that the drug use was unintentional, we expect the individual to provide corroboration of his version of the events that led to the positive drug test. E.g., Personnel Security Review (Case No. VSA-0087), 26 DOE ¶ 83,001 (1996); Personnel Security Hearing (Case No. VSO-0094), 26 DOE ¶ 82,753 (1996); Personnel Security Hearing (Case No. VSO-0163), 26 DOE ¶ 82,799 (1996). The individual’s say-so as to allegations that minimize the security concern cannot form a sufficient basis for restoration of a security clearance. Personnel Security Review (Case No. VSA- 0087), 26 DOE at 86,508.

In the present case, the individual was well aware of the necessity of providing appropriate corroboration for his assertion that his use of the marijuana was inadvertent. It was first raised at his Personnel Security Interview. Transcript of Personnel Security Interview at 40-45. Further, in two telephone conversations with the individual’s attorney and in two confirmatory letters, I pointed out that I would be unlikely to recommend that the individual’s access authorization be restored if he did not provide appropriate corroboration of his version of the events at the party. See Letters of July 8, 1999 and July 16, 1999. See also Letter of May 5, 1999. The individual’s attorney told me in our telephone conversations of July 8 and July 15 that the individual would not provide any corroboration, and in fact he did not do so at the hearing.

Thus, given what I consider to be an unbelievable account of how this individual came to have a positive drug test, one that is without corroboration, I am unable to find that the individual has mitigated the Criteria K and L concerns associated with his positive drug test for marijuana. I am therefore unable to find that restoring the individual’s access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, I cannot recommend that his access authorization be restored.

V. CONCLUSION

The regulations set forth at 10 C.F.R. Section 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of this Hearing Officer Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585-0107, and served on the other party. If either party elects to seek review of the Opinion, that party must file a statement identifying the issues on which it wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files its request for review. The party seeking review must serve a copy of its statement on the other party, who may file a response with 20 days of receipt of the statement.

Virginia A. Lipton

Hearing Officer

Office of Hearings and Appeals

Date: August 11, 1999

(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. This authorization will also be referred to in this Opinion as a security clearance.

(2)This testimony was given by telephone.

(3)After probing the security specialist regarding the procedures followed by the DOE Office to initiate the instant administrative review process under Part 710, the individual’s attorney raised some concerns about whether all the required procedures had been followed, and appropriate letters had been issued under 10 C.F.R. §§ 710.9 and .10. Transcript of Hearing (hereinafter Tr.) at 20, 21. Additional letters establishing that procedural requirements were followed were eventually obtained by the DOE counsel. Those documents were entered into the record at a later point during the hearing. Tr. at 276-78. DOE Exh. 14-17.

(4) The individual’s attorney stipulated to the accuracy of the results of the drug test. See Letter of July 16, 1999 from Hearing Officer to individual’s attorney and DOE counsel.

(5) This testimony was given by telephone.