Case No. VSA-0078, 25 DOE ¶ 83,016 (July 16, 1996)

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* The original of this document contains information which is arguably confidential under 18 U.S.C. 1905. Such material has been deleted from this copy.

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Case Name: Personnel Security Review

Date of Filing: May 3, 1996

Case Number: VSA-0078

This Opinion concerns the eligibility of XXXXX ("the individual") for access authorization under the regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material."<1>The Department of Energy's XXXXX Operations Office (DOE/XXXXX) suspended the individual's access authorization under the provisions of Part 710. The individual subsequently requested a hearing before a DOE Hearing Officer pursuant to 10 C.F.R. § 710.21. After considering the testimony presented at the hearing, the Hearing Officer issued on April 25, 1996 an Opinion recommending against restoring the individual's access authorization. See Personnel Security Hearing (Case No. VSO-0078), 25 DOE ¶ 82,802 (1996) (Personnel Security Hearing or the April 25 Opinion). On May 3, 1996, the individual filed a request for review of the Hearing Officer's Opinion pursuant to 10 C.F.R. § 710.28. This Opinion considers whether, on the basis of the regulations and the record before me, the individual's access authorization should be restored.

I. Background

The provisions of 10 C.F.R. Part 710 govern the eligibility of individuals who are employed by or are applicants for employment with DOE or its contractors, agents, DOE access permittees, and other persons designated by the Secretary of Energy for access to classified matter or special nuclear material. Part 710 generally provides that "[t]he decision as to access

authorization is a comprehensive, common-sense judgment, made after consideration of all 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." 10 C.F.R. § 710.7(a).

The DOE/XXXXX issued a Notification Letter to the individual informing him that information in the possession of DOE created a substantial doubt concerning his eligibility for access authorization. The Notification Letter specified one area of derogatory information: the individual has engaged in unusual conduct tending to show that he is not honest, reliable or trustworthy, or which furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress, which may cause the individual to act contrary to the best interests of the national security. See Notification Letter at Attachment 1 (citing 10 C.F.R. § 710.8(l)). This concern was based on DOE/XXXXX's belief that in February 1995, the individual had turned in a false 161-K credential. This credential authorizes a security guard to carry a weapon and arrest persons on DOE sites. According to DOE/XXXXX, the individual forged the credential in order to avoid disciplinary action for the loss of his original 161-K credential.

The individual requested a hearing in order to resolve the issue of his eligibility for access authorization. That hearing was held on XXXXXXXXXXXXXXXXX. Among the nine witnesses who testified were: the individual; XXXXXXXXXXXXXXXXX, former Office Manager for XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, the individual's employer; XXXXXXXXXXXXXXXXX, former manager for administration of the protective force; XXXXXXXXXXXXXXXXX, a former XXX security guard; and XXXXXXXXXXXX, a current XXX security guard. On April 25, 1996, the Hearing Officer issued an Opinion in which he found that there was no testimony presented that would lead him to believe that the forgery of the 161-K credential was actually done by someone other than the individual. He further found that the motive suggested by DOE/XXXXX was logical and supported by the testimony, and that the individual had the opportunity to commit the forgery. Therefore, he found that the individual's "Q" access authorization should not be restored.

On May 3, 1996, the individual's request for review was received by the Office of Hearings and Appeals (OHA). On May 14, 1996, the OHA received the individual's Statement of Issues ("Statement"). The Office of Security Affairs (OSA) declined an opportunity to respond to the individual's submissions. See Memorandum from Edward J. McCallum, Director, Office of Safeguards and Security, to Director, OHA (June 3, 1996). On June 3, 1996, the administrative record of this proceeding was closed.

II. Statement of the Issues

In his Statement, the individual claims that the Hearing Officer imposed too high a burden of proof on him in this case. Further, the individual asserts that the Hearing Officer failed to judge the facts of his case in a comprehensive, common sense manner. In particular, he claims that the Hearing Officer incorrectly found that he was motivated by fear that disciplinary action would result from the loss of his 161-K credential. The individual also disputes the Hearing Officer's finding that he was evasive. In addition, the individual claims that the Hearing Officer failed to consider evidence that supports the individual's contention that others had motivation to forge his credential. Specifically, the individual states that the Hearing Officer failed to analyze evidence in support of one possible motivation, feelings of ill will that resulted from labor organizational activity by the individual, and completely failed to address the existence of two other motivations - - ageism and negative feelings resulting from the individual's workers' compensation claim.

III. Analysis

Under 10 C.F.R. § 710.28(a), either the OSA or the individual involved may file a request for review of a Hearing Officer's opinion with the OHA Director. In considering requests for review, I generally confine my inquiry to those issues raised in the statement or response. The regulations provide that, under limited circumstances, I may consider additional information which was not before the Hearing Officer. 10 C.F.R. § 710.28(c); 10 C.F.R. § 710.29(b)(2). In the present case, neither party has submitted any additional evidence. Accordingly, the only issues before me are the contentions advanced by the individual in his Statement.

In the April 25 Opinion, the Hearing Officer stated that because there is a strong presumption against the granting or restoring of a security clearance (citing Department of Navy v. Egan, 484 U.S. 518, 531 (1988) and Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991)), the burden of persuasion is on the individual. See Personnel Security Hearing, 25 DOE at 85,834 (citing Personnel Security Hearing (VSO-0002), 24 DOE ¶ 82,752 at 85,511 (1995)). He pointed out that this is not a criminal proceeding in which the prosecuting body must prove its case beyond a reasonable doubt. This takes us to the first point raised by the individual. He believes that the burden required of him is too high. He considers the Hearing Officer's requirement that he provide "specific and direct testimony" that his credential was switched by someone else as unfair and effectively requiring him to show facts which are not in his power and knowledge to obtain. I do not agree with the individual's allegation that this proceeding is structured in an unfair manner. Because national security is at stake, there must be a very high degree of confidence that clearance holders can be relied upon. I therefore find that it is fair that the burden of proving reliability lies with the individual alone. In the context of the present case, where everyone agrees that the individual's credential was forged, that means that the individual has the burden of establishing that it was more likely than not that someone other than he forged his credential. This was not an unreasonable or unfair burden to place on the individual. The individual has presented no further argument on this issue to support his general claim of unfairness. After a thorough review of the record, I agree with the Hearing Officer that the individual has not met this burden.

Moreover, although the individual attempts to argue that he had no motive to forge his credential, I cannot agree. In his Statement of Issues, the individual asserts that, contrary to the Hearing Officer's opinion, he had no motive to forge the credential because there was no logical reason for him to fear disciplinary action from the loss of his 161-K credential. This argument is not persuasive. The Hearing Officer accepted the position of DOE/XXXXX that the individual feared disciplinary action. Although the Hearing Officer found that the individual likely could have obtained a duplicate credential without any disciplinary action, the Hearing Officer was not convinced that the individual was aware of this or himself believed this fact. See Personnel Security Hearing, 25 DOE at 85,836. It is true that no witness indicated that disciplinary problems could result from the loss of the card. Nevertheless, the crux of this issue is the individual's subjective perceptions. I agree with the Hearing Officer that it is quite likely the individual feared disciplinary problems from the loss of the card. The individual had a history of carelessness including losing his work keys twice and leaving a gate open on site. This latter incident caused the individual to be suspended for a week in August 1994. Tr. at 15, 18. This history, when combined with the individual's perception that he was disliked for a variety of reasons by his supervisor, XXXXX, could have led the individual to believe that the loss of his 161-K credential might be the proverbial straw that would break the camel's back.

The Hearing Officer's Opinion relies heavily on his judgment that the individual's testimony regarding a lack of motive to forge his credential was not credible. According to the Hearing Officer, the individual's "certain" testimony in the hearing that he was "absolutely not" aware that he might be subject to disciplinary action due to the loss of his 161-K card, Tr. at 244, contrasted unfavorably with his "cautious and evasive" testimony in his August 15, 1995 Personnel Security Interview. See Personnel Security Hearing, 25 DOE at 85,836. Therefore, the Hearing Officer did not believe the individual's statement that he had no motivation to forge the credential. Id. The Hearing Officer also found the individual "distanced himself" from the credential presented at the hearing in a manner which was not candid, and did not answer pertinent questions in a sufficiently definite manner.<2> See Personnel Security Hearing, 25 DOE at 85,836-37. After a thorough review of the record, I must accept the Hearing Officer's finding regarding the individual's evasiveness. Judgments on the candor, demeanor and credibility of a witness are the domain of the Hearing Officer, subject to review for egregious error. Cf. Pogue v. Department of Labor, 940 F.2d 1287, 1289 (9th Cir. 1991) ("[w]eight is given the [ALJ's] determinations of credibility for the obvious reason that he or she sees the witnesses and hears them testify, while the [reviewing authorities] look only at cold records.") (citations and internal quotations omitted). I also agree that, "when the determination of motive or purpose hinges entirely upon the degree of credibility to be accorded the testimony of interested witnesses, the credibility findings of the Trial Examiner are entitled to special weight and are not to be easily ignored." Id. at 1290 (citations and internal quotations omitted). It is the Hearing Officer who had the opportunity to observe the individual testifying, not I. Upon examination of the record, I find no apparent error in the Hearing Officer's finding of evasiveness on the part of the individual.

The individual also argues that the Hearing Officer failed to address some portions of the evidence which supported the individual's position that other people had motives to forge the credential. In actuality, considerable time was devoted at the hearing to the possibility that others had forged the individual's credential. After reviewing the record, I agree that more evidence was presented than the Hearing Officer specifically acknowledged in his Opinion on the possible motives of others. Although the Hearing Officer quoted one paragraph of the individual's testimony regarding misbehavior at XXXXX around the time of the unionization effort, he referred to it as "the only testimony regarding the motive of others." See Personnel Security Hearing, 25 DOE at 85,834. That is incorrect because there is other testimony in the record regarding other possible motives (especially on the part of XXXXXXXXXXXX) - - namely, alleged ageism, or prejudice against the individual because of his age, see Transcript of Hearing at 261-63, Case No. VSO-0078 (hereinafter cited as "Tr."), and alleged hostility toward the individual resulting from his workers' compensation claim, Tr. at 239-43. Further, the individual's testimony regarding tension in the workplace around the time of unionization efforts was corroborated by fellow security guard XXXXXXXXXXXXXXXXX. Tr. at 178-79; 182-84. There was also testimony that two other 161-K cards were stolen around the time of unionization tension. <3>Tr. at 178-180, 269-270 (testimony of XXXXXXXXXXXXXXXXX, XXXXXXXXXXXX). It is therefore incorrect to state, as the Opinion does, that the individual "failed to suggest any person with these motives or to question other witnesses to substantiate the reasonableness of his suggested motives." Personnel Security Hearing, 25 DOE at 85,834. I also cannot agree with the Hearing Officer's finding that "there is no evidentiary support for the possibility that these motivations exist. . . ." Id. However, even if those motivations existed and someone wished to injure the individual, there is no evidence suggesting that they would have chosen forgery of the individual's credential as a means to accomplish this end. Moreover, the important question is not whether someone else also may have had a motive, but whether it is more likely that someone else forged the credential, not this individual. The mere showing that someone else may have had motivation to take action to injure the individual does not mean that it is likely that some other person actually did forge and switch the credential. After reviewing the entire record, I agree with the Hearing Officer that it is more likely that the individual forged the credential.<4>Therefore it is my opinion that the Hearing Officer's limited mischaracterizations of the testimony are minor and not of sufficient gravamen to overturn the opinion. On balance, I find that the individual has not met his burden of showing that restoring his clearance is in the national interest.<5>

Therefore, after a thorough examination of the Hearing Officer's Opinion and the underlying record, I find that he made a comprehensive, common sense judgment. In this case, the Hearing Officer acknowledged that one of the individual's primary contentions may be true: that third parties had the opportunity to forge and switch the card. See Personnel Security Hearing, 25 DOE at 85,835. However, the Hearing Officer found that no testimony was presented to show that such a switch was anything more than a theoretical possibility. While the record indicates that others, including XXXXXXXXXXXX, may have had motives, that is certainly an insufficient basis on which to find that they forged and switched his credential. In order to favor restoring a person's clearance, the existence of a theoretical possibility is not enough. Clearly, in the face of many facts which can be interpreted in ways both inculpatory and exculpatory to the individual, the Hearing Officer had to decide which theory of the source of the forged credential was most likely. On this issue, the credibility of two key witnesses -- XXXXXXXXXXXX and the individual -- was the linchpin. Credibility is extremely important in a case like this one, where actions were taken in secret and the key issue presented is who did those actions. The Hearing Officer found the individual !?? not provide full and candid answers to the questions he was asked," Personnel Security Hearing, 25 DOE at 85,837, and he found that XXXXXXXXXXXX was "responsible, candid and held no malice against the individual." Id. at 85,835. I decline to disturb these findings regarding the credibility of these two important witnesses. Thus, after examining the record, I find that the Hearing Officer's conclusions in this case are supported by the facts and reflect the type of common-sense opinion envisioned under 10 C.F.R. § 710.7(a).<6>

IV. Conclusion

I have thoroughly considered the record of this proceeding, including the submissions of the parties and the evidence and testimony presented at the XXXXXXXXXXXXXXXXX hearing convened in this matter. In resolving the question of the individual's eligibility for access authorization, I have been guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c). After due deliberation, it is my opinion that the individual's access authorization should not be restored since I conclude that such continuation would endanger the common defense and security and would not be clearly consistent with the national interest. 10 C.F.R. § 710.27(a).

George B. Breznay

Director

Office of Hearings and Appeals

Date:

[On August 8, 1996, a final determination was made by the Director,

Office of Security Affairs, to revoke the individual's Department of Energy access authorization.]

<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 in this Opinion as an access authorization or a security clearance.

<2>/ Nor was the individual even willing to commit to a particular defense by arguing that one particular person or group was the most likely forger of the card.

<3>/ Although these incidents suggest an environment in which the individual's card might have been stolen, I cannot accept the individual's suggestion that his card may then have been switched with a forged 161-K credential. In fact, if the individual's card was stolen, it is the individual who would have had motivation to create a forgery to cover up the loss.

<4>/ Though the individual attaches great significance to the fact that his signature was copied on the forged card, I do not, for the following reason. There is also a DOE Authorizing Official's signature on the 161-K credential. It is very possible that the individual thought it would be preferable to photocopy that signature, in order to avoid forging it. Then, to avoid having a noticeable distinction between the two signatures, the other signature was copied as well. Therefore, it is not necessarily true, as argued by the individual, that he would have signed his name on the forged credential if he had done the forgery.

<5>/ The individual also argues that the Hearing Officer should not have prohibited the individual's attorney from eliciting testimony from XXXXXXXXXXXX as to whether he had asked XXX Office Manager XXXXXX if she had forged and switched the individual's card. See Tr. at 377-78. According to the Hearing Officer, Ms. XXXXXX was a fully candid witness. See Personnel Security Hearing, 25 DOE at 85,835. The scenario the individual's attorney was presenting was implausible. Although this testimony might have been helpful to a fuller accounting of the scope of the investigation XXXXXXXXXXXX undertook in this manner, his answer would not likely have produced relevant evidence. Neither the Hearing Officer nor I believe that the Office Manager forged the card. See Tr. at 82 (Ms. XXXXXX testifying that the card presented at the hearing is the same card the individual presented to her in February 1995, thereby denying that she had switched it).

<6>/ I also note that the individual has claimed that because he is alleged to have forged and turned in a 161-K credential only once, this should be considered mitigating evidence. I reject that claim. The forging of a government document is such a serious breach of

security, and so obvious an example of dishonesty and untrustworthiness, that a showing of one such incident is clearly sufficient to revoke a security clearance.