Case No. VSA-0132, 26 DOE ¶ 83,019 (OHA October 7, 1997)

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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.

October 7,1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: August 1, 1997

Case Number: VSA-0132

This Opinion considers a Request for Review filed by XXXXXXXXXX (the Individual) concerning the suspension of his access authorization, also referred to as a security clearance. As explained below, I cannot conclude that restoring the Individual’s access authorization would be clearly consistent with the national interest.

I. Background

A. The Applicable Regulations

The Department of Energy (DOE) regulations governing this matter 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”). As the title indicates, these regulations specify both the criteria and the procedures for determining eligibility for access to classified matter or special nuclear material. The administrative determination that an individual is eligible for access to classified matter or special nuclear material is referred to as an “access authorization” or a “security clearance.”

B. The Instant Case

This case concerns the suspension of the Individual’s access authorization. A DOE office conducted Personnel Security Interviews (PSIs) with the Individual in 1984, 1991, 1993, 1995, and 1996. In those interviews, the DOE office questioned the Individual about his financial delinquencies and his arrests for

writing bad checks. After the 1996 PSI, the DOE office issued a Notification Letter to the Individual. The Notification Letter stated that the Individual had exhibited a pattern of financial irresponsibility that raised a security concern under 10 C.F.R. § 710.8(l) (Criterion L) that the Individual is not “honest, reliable, or trustworthy,” or may be subject to “exploitation.”

The Notification Letter advised the Individual of his opportunity to request a hearing before a Hearing Officer in the Office of Hearings and Appeals (OHA) in order to resolve the cited security concerns.

The Individual requested a hearing, and a Hearing Officer was appointed. The only witness at the hearing was the Individual. At the hearing, the Individual did not deny the accuracy of the derogatory information. Instead, the Individual testified that he was reformed.

The Hearing Officer issued an Opinion recommending that the Individual’s access authorization not be restored. Personnel Security Hearing (VSO-0132), 26 DOE ¶ 82,780 (1997) (Hearing Officer Opinion). The Individual requested review and identified the issues upon which he sought review. The DOE Office of Safeguards and Security filed a response, stating that it concurred with the recommendation of the Hearing Officer, and had no additional information to submit. On September 30, 1997, the record was closed.

II. The Hearing Officer Opinion

The Hearing Officer found that the derogatory information concerned a pattern of financial irresponsibility spanning more than ten years. The Hearing Officer also found that the Individual had not shown sufficient evidence of reformation and rehabilitation with respect to this pattern of behavior.

The Hearing Officer noted that the Individual did not dispute the following facts. 26 DOE at 85,708-10. In 1981, the Individual was arrested for writing a bad check. In 1984, the Individual had three overdue accounts. During the period 1985 to 1988, the Individual’s pay was garnished at least four times by various creditors. In 1986, the Individual was arrested three times for writing bad checks. During the period 1986 to 1987, three firms obtained judgments against the Individual. In 1991, the Individual filed for bankruptcy and received a discharge from $20,000 in debt. In 1992, the Individual was named in two civil complaints for writing two bad checks. In 1992, the Individual was arrested for writing bad checks. In 1993, the Individual had three delinquent accounts. At the time of the 1995 PSI, the Individual had outstanding checks with insufficient funds and a number of overdue accounts. The Individual testified that he expected to receive a $15,000 settlement in a court action and that he would use this settlement to repay his debts. Thereafter, he received the $15,000, but used only a portion of it to repay debts. In 1996, he provided the DOE office with a financial statement that listed 14 debts. Later in 1996, the Individual was charged with theft as the result of a dispute over the amount owing for furniture rental. The Individual was placed on probation until he paid the debt, which he subsequently did.

The Hearing Officer addressed the Individual’s contention that some of his financial problems were attributable to a two-year period of unemployment in the early 1980s, and a six-month absence from work for surgery in the early 1990's. 26 DOE at 85,710. The Hearing Officer found that those matters did not account for the extent of the Individual’s financial delinquencies or his bad checks. Id. The Hearing Officer found that “most of the Individual’s problems stem from a failure to act responsibly regarding his debts and financial affairs.” Id.

The Hearing Officer also addressed the Individual’s contention that he was reformed. Id. at 85,711. The Individual testified that over the six months prior to the hearing the Individual had made fundamental changes in his life. The Individual testified that he had begun to conduct Bible studies and counsel inmates at the local jail. The Individual also testified that he had obtained a second job. The Individual testified that he had repaid all his debts except for one, and that his second job would allow him to resolve all his debts in six months to a year. Finally, the Individual testified that he had begun pastoral counseling sessions. The Hearing Officer stated that such efforts were “promising” but insufficient to resolve the security concern. The Hearing Officer cited the duration of the Individual’s problems, his prior unfulfilled promises to resolve his problems, and his relatively recent failure to honor his commitment to use his $15,000 settlement to reduce his indebtedness.

Based on the foregoing, the Hearing Officer concluded that the Individual had not resolved the security concerns arising under Criterion L.

III. 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. Compare Pullman Standard v. Swint, 456 U.S. 273 (1982), with Amadeo v. Zant, 486 U.S. 214, 223 (1988), quoting Fed. R. Civ. P. 52(a). See also Oglesbee v. Westinghouse Hanford Co., 25 DOE ¶ 87,501 (1995). In rendering findings of fact, a hearing officer considers the demeanor and credibility of witnesses, as well as the appropriate weight to be given to their testimony and other evidence. Personnel Security Review (Case No. VSA-0049), 25 DOE ¶ 83,002 at 86,512 (1995). Therefore, I will not ordinarily supplant my judgment for that of a hearing officer in such matters. Id.

B. Statement of Issues

In the Statement of Issues, the Individual does not challenge the Hearing Officer’s findings of fact with respect to his history of financial problems. Instead, the Individual challenges the finding that he is not eligible for a clearance. The Individual contends that he will resolve his problems in the near future. The Individual maintains that he expects to receive $20,000 as the result of a workers’ compensation suit. He states that he will avail himself of credit counseling in order to address his problems in the interim. The Individual also maintains that he needs his job and that he seeks forgiveness.

The Individual must demonstrate a pattern of financial responsibility in order to resolve the security concern arising from his past financial problems. As the Hearing Officer noted, a pattern of financial irresponsibility (i) raises doubts concerning whether an individual would comply with security regulations and (ii) increases the possibility that an individual could be coerced or influenced by offers of money. 26 DOE at 85,711, citing Personnel Security Hearing (Case No. VSO-0108), 26 DOE ¶ 82,764 at 85,599 (1996); Personnel Security Review, 25 DOE ¶ 83,010 at 86,545 (1996). Accordingly, once there is a pattern of financial irresponsibility, the individual must demonstrate a sustained, new pattern of financial responsibility sufficient to demonstrate that a recurrence of the past pattern is unlikely. Personnel Security Hearing (Case No. VSO-0108), 26 DOE ¶ 82,764 at 85,699 (1996).

The Individual has not demonstrated a pattern of financial responsibility. First, the Individual has not shown that he has taken any action to resolve his financial delinquencies. The Individual has never corroborated his assertion at the hearing that he cured all but one of his delinquencies. Second, the Individual’s assertion that he will use the anticipated settlement to repay his debts is merely a statement of future intent, not a demonstrated pattern of conduct. Third, even if the Individual had demonstrated that he had recently repaid his debts, that conduct alone would be insufficient to establish a pattern of financial responsibility. As the Hearing Officer indicated, the extent and recency of the Individual’s problems require that he demonstrate financially responsible behavior for a sustained period. See Personnel Security Hearing (Case No. VSO-0108), 26 DOE ¶ 82,764 at 85,597-99 (1996) (asserted recent efforts to reform with respect to ten year pattern of financial irresponsibility, insufficient to establish pattern of financial responsibility that would resolve security concern). Finally, the Individual’s argument that he needs his job and seeks forgiveness is simply not relevant to whether the Individual has demonstrated a pattern of financial responsibility.

IV. Conclusion

As is evident from the above discussion, the matters raised by the Statement of Issues indicate that the Individual disagrees with the Hearing Officer’s recommendation. However, that disagreement does not evidence error by the Hearing Officer. Based on the entire record, in view of the pattern of financial irresponsibility present in this matter and how recent it is, I cannot conclude that a grant of access authorization will not endanger the common defense and security and be clearly consistent with the national interest. 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: October 7, 1997