Case No. VSA-0320, 28 DOE ¶ 83,003 (OHA June 23, 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.

June 23, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case:Personnel Security Review

Date of Filing:April 25, 2000

Case Number:VSA-0320

On April 25, 2000, XXXXXXXXXXXXX (hereinafter the individual) filed a Request for Review of a Hearing Officer’s Opinion and a Statement of Issues concerning his eligibility to retain a Department of Energy (DOE) access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled “Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.” The DOE office having responsibility for the individual’s place of employment previously suspended the individual’s access authorization pursuant to the provisions of Part 710. At the individual’s request, an Office of Hearings and Appeals Hearing Officer convened a hearing. On February 29, 2000, the Hearing Officer issued an Opinion recommending that the Director of the DOE’s Office of Security Affairs not restore the individual’s access authorization. Personnel Security Hearing (Case No. VSO-0320), 27 DOE ¶ 82,836 (2000). The individual filed his Request for Review of the Hearing Officer’s opinion and Statement of Issues pursuant to 10 C.F.R. § 710.28. Finally, on May 15, 2000, the Director of the DOE’s Office of Safeguards and Security notified me that his Office would not file a response to the Statement of Issues. Accordingly, I closed the administrative record on May 22, 2000, and will now consider the individual’s Statement of Issues.

I. Background

The facts leading to the suspension of the individual’s security clearance fall into two categories. First, there are doubts concerning the individual’s honesty, reliability, and trustworthiness, which is derogatory information as described at 10 C.F.R. § 710.8(f) (hereinafter Criterion F). According to a letter informing the individual of these concerns and outlining the details of the allegations concerning Criterion F (the Notification Letter), the individual “deliberately misrepresented, falsified, or omitted significant information” from an Operations Office Arrest Report, a DOE personnel security interview, and an Office of Personnel Management interview.

Second, the Notification Letter asserted that the individual engaged in unusual conduct or is subject to circumstances tending to show that he is not honest, reliable or trustworthy; or which furnishes reason to believe that he may be subject to pressure, coercion, exploitation, or duress that may cause him to act contrary to the best interests of the national security. See 10 C.F.R. § 710.8 (l) (hereinafter Criterion L). Specifically, the Notification Letter stated the following about the individual:

You were observed in Wal-Mart opening a [videocassette recorder (VCR)] box and placing a pink security return label from a pack of shower curtains that you had in your pocket on the VCR box, walking through an empty register, and exiting Wal- Mart. When you were confronted by Wal-Mart security outside the store, you ran. You were convicted of Petit Larceny in February 1999.

Notification Letter at 2.

The individual has consistently maintained that he never intended to illegally remove a VCR from the Wal-Mart. In a “Report of Charge or Arrest” that he submitted to the DOE following the incident, the individual stated that he had been charged with “possession of merchandise from Wal- mart that had not been paid for” and offered the following account of this incident.

I was at Wal-Mart looking for a video game for my son that he wanted Santa to bring him. At this time someone that I recognized came up to speak to me. We talked for a second. Then I told him what I was doing. They didn’t have the game I was looking for so I told him I was going over to Sam’s Dept. Store to look for it, which is next door to Wal-Mart. He asked if he could ride with me over there. But he had to use the restroom first and asked if I could hold his merchandise [the VCR in question] while he used the restroom. He told me he would meet me outside on the sidewalk. I said OK. When I went outside to wait on him, a store employee came [up to me] and asked me if I had a receipt, which I didn’t because [the VCR] wasn’t mine. [The person who handed the individual the VCR] never showed up again. This is how I was charged with this. I later found out that this is one of the oldest tricks in the book. And that the same tactic has been used all over [the individual’s hometown] over the Holidays in other stores. . . .

“Report of Charge or Arrest” identified as “DOE Exhibit No. 1". On March 10, 1999, the individual submitted a second “Report of Charge or Arrest” to the DOE in which he indicated that he had appeared in Court concerning this incident, that the Court had fined him $300 and an additional $50 in court costs, and that the Court had made the following disposition: “charges pending for (3 years) reduced to petty larceny.” See DOE Exhibit No. 2. According to counsel for DOE Security, the court records indicate that he was found guilty of “petty larceny” and given a jail sentence of ninety days, which was suspended for three years. Hearing Tr. at 14.

At his March 22, 1999 PSI, the individual was questioned concerning this incident. He was able to provide very little information concerning the person who allegedly handed him the VCR.

Q: His name?

A: His last name is XXXXXX. I don’t know his first name.

Q: Where does he live?

A: He lives around this area.

Q: Where do you know him from?

A: I’ve just known him from being in [the individual’s hometown] for years. I don’t know. I don’t know if I went to school with him, or what. But I know him. Just know him by his face, and being around.

PSI Transcript at 9. The individual also indicated that he believed that he and Mr. XXXXXX played basketball together a couple of times. Id. at 27. The individual told the interviewer that Mr. XXXX stated that he “was going to return [the VCR], but the return line is too long.” Id. at 11. According to the individual, he then asked the individual if he could hold on to the VCR while he went to the restroom and the individual agreed to do so. The individual then stated that “I proceeded to look around [the store] a few more minutes. And then I told him I’d meet him on the sidewalk.” Id. Outside of the Wal-Mart, the individual stated that he was approached by a store employee who asked him if he had a receipt for the VCR. When he answered no, the employee asked him to go back into the store. The individual then stated that he “panicked,” and proceeded to put down the VCR and run away.

Q: Did you run?

A: Yeah.

Q: Did [the store employee] shout? Ordering you to stop?

A: He said “Hey,” for a second. Or something. He said something. Yeah.

Q: What did he say? Tell me specifically what he said?

A: I can’t remember. I was . . . He just said, “Hey.” Or, he might have said stop. I’m not sure exactly what he said.

Q: And you ran?

A: And I ran. Yes.

Q: Where did you run to?

A: I ran to the other side of the store. The street on the other side of the store. I ran there. And I stayed there for a while.

Id. at 14. The individual then stated that he saw a police officer driving up the street, and voluntarily approached him in order to explain his situation. “I came to [the policeman] voluntarily, and hopped in his car. He didn’t have to put handcuffs on me. He didn’t arrest me or anything.” Id. The individual stated that he then returned to the store with the police officer. Id. at 28.

In the course of investigating this incident, DOE Security obtained the incident report filled out by the police officer. The report reads as follows:

Complainant [the Wal-Mart Loss Prevention Officer] states suspect was pushing basket in store with VCR. Took VCR from basket and walked out of store. Complainant stopped suspect outside front door. Suspect began to walk back into store with Complainant. Suspect set VCR down and ran from scene southbound and was not apprehended. Suspect is not known to Complainant. Suspect was located on [street name] and name obtained for store prosecution and warrant will be obtained by Complainant.

DOE Security Exhibit No. 4. The report placed the value of the VCR at $160. Id.

At the hearing in this matter, counsel for DOE Security presented the testimony of the Wal-Mart Loss Prevention Officer (the LP Officer). In certain crucial respects, the account the LP Officer presented differed substantially from the account of the incident that the individual provided to DOE Security. The LP Officer testified that he first saw the individual at the Wal-Mart in the “main action aisle in electronics.” Hearing Tr. at 19. He stated that he then observed the following:

I observed [the Individual] pushing an empty shopping cart. He stopped off at electronics where he selected a VCR from the green steel rack, and placed it in the shopping cart. He then went down towards hardware where he entered the hardware aisle. He retrieved a package from [his] inside jacket. Later, it was found to be a package of shower hooks.

He took a pink sticker off of it and placed it on the VCR box. He then tore open the VCR box. He picked the VCR box up, had it under his left arm, and proceeded to the front of the store where he exited without paying for it.

Id. The LP Officer testified that these pink stickers are issued to Wal-Mart customers who bring purchased items back into the store, so that the customers can carry the items back to the Wal-Mart courtesy desk for a refund. Id. at 25. The LP Officer also testified that he did not see the individual with any other person at any time after he first observed the individual wheeling an empty shopping cart up the main aisle of the store. Id. at 21. He described his confrontation with the individual outside the store as follows:

I stepped in front of him and spoke to him. His reply was that he had a return, sir. He said, “I have a return, sir.” And he started backing up. He said that three times. He then laid the VCR into a shopping cart that was there at the front sidewalk and started to run.

Id. The LP Officer stated that he chased the individual in the direction of the neighboring Sam’s Club and into woods for approximately fifty feet, when the LP Officer stepped on a rock and twisted his ankle. He stated that he then returned to the store and was in the process of filing an incident report with a police officer when they received a call that the subject had come out of the woods. The LP Officer stated that he and the police officer then rode over to the area, spotted the individual, and that the police officer then spoke to the individual.

[The police officer] just had a conversation with him outside the car. [The individual] I.D.’d himself, told him that he was running because he was scared because his friend had handed him the VCR. He went outside to wait on him, I approached [the individual], he just got scared and ran.

Id. at 27. The LP Officer confirmed the individual’s account that he then got into the police car and returned to the Wal-Mart. Id. at 28.

At the hearing, the individual continued to maintain that his acquaintance Mr. XXXXX handed him an open box containing a VCR and asked him to hold onto it. Id. at 122. The individual testified that he then placed the VCR in an empty shopping cart that happened to be nearby. Id. at 127. He stated that he did not pay attention to whether there was a pink return slip on the box. Id. at 122. He acknowledged taking the VCR to another aisle of the store before attempting to exit the Wal- Mart, stating that he “was trying to kill a few minutes in the store waiting on [Mr. XXXXX] to come on.” Id. at 105.

These actions and the individual’s statements regarding his actions formed the basis for the Criterion F and Criterion L security concerns. Upon learning of these security concerns, the DOE office suspended the individual’s access authorization. The DOE office followed this access authorization suspension with its issuance to the individual of the Notification Letter.

II. The Hearing Officer’s Opinion and Testimony at the Hearing

Based on the individual’s conduct that resulted in a charge against him of petit larceny, the Hearing Officer found that the DOE office properly invoked Criterion F and Criterion L in suspending the individual’s access authorization. In rendering his opinion, the Hearing Officer considered several possible mitigating factors. However, the Hearing Officer ultimately determined that the individual did not sufficiently corroborate his version of the events surrounding the Wal-Mart incident, and thus did not mitigate the security concern concerning his conviction for petit larceny at the Wal-Mart. Furthermore, since the Hearing Officer found it difficult to conclude that inaccuracies in the individual’s explanation of the incident were not deliberate, the Hearing Officer found that the individual failed to establish that he did not intend to misrepresent the facts concerning the Wal-Mart incident and the subsequent petit larceny judgment.

In summary, the Hearing Officer found significant derogatory information in the possession of the DOE that raised serious concerns under Criterion F and Criterion L as to the eligibility of the individual for access authorization. In addition, since the Hearing Officer found that the individual failed to bring forth sufficient evidence to mitigate these security concerns, he determined that he was unable to conclude 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, the Hearing Officer recommended that the DOE not restore the individual’s access authorization.

III. Analysis

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). 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). As discussed below, after reviewing the record in this case, I cannot conclude that restoring the access authorization of the individual would be clearly consistent with the national interest.

Generally, I will not set aside findings of fact made by a hearing officer in these types of cases unless they are clearly erroneous. See Personnel Security Review (Case No. VSA-0049), 25 DOE ¶ 83,002 at 86,512 (1995). In rendering findings of fact, a hearing officer considers the demeanor and credibility of witnesses, and the appropriate weight given to their testimony and other evidence. Therefore, I will not ordinarily supplant my judgment for that of a hearing officer in such matters.

In his Statement of Issues, the individual challenges the Hearing Officer's administrative actions and also his factual findings because he believes that the Hearing Officer overlooked or did not seriously consider certain facts. For the reasons presented below, I find that the individual has not demonstrated any error in the Hearing Officer’s findings.

The individual states that the Hearing Officer failed to make certain that the individual received the opinion by certified mail with a signed return receipt “in the time period given to [the Hearing Officer].” He elaborates that, although the opinion was dated February 29, 2000, the envelope containing the opinion was postmarked with the date March 21, 2000. Moreover, the individual asserts that he asked the Hearing Officer to send the opinion using certified mail, but the opinion was sent through regular mail.

First, and most important, I note that the regulatory clock on filing a Request for Review of the Hearing Officer’s opinion does not begin running until the individual’s receipt of the opinion. See 10 C.F.R. §710.28(a). Thus, the delay in the individual’s receipt of the opinion after its issuance did not adversely affect him in this respect. He still had the full time allowed under the regulations to file his Request for Review. Since the individual has not made any showing that he has been prejudiced by the circumstances surrounding his receipt of the opinion, I do not find any merit to this portion of the individual’s Statement of Issues.

However, in the interest of conducting a full investigation into this matter, I have reviewed the administrative record to make certain that the individual received the opinion in the quickest and most efficient means possible. The administrative record supports the individual’s statement that he did not receive the Hearing Officer’s opinion in due course after it was issued. Instead, he called the Hearing Officer to inform him that he had not received the opinion, nearly three weeks after the date the Hearing Officer issued the opinion. Upon this notification from the individual that he had not received the opinion the Hearing Officer sent using certified mail, the Hearing Officer sent the opinion to the individual a second time, on this occasion using regular mail. The administrative record shows that the Hearing Officer mailed the opinion using regular mail only after it became apparent that the certified mail delivery was unsuccessful. See March 20, 2000 Record of Telephone Conversation between the individual and the Hearing Officer. I find that once the Hearing Officer received notification that the individual had not received the opinion, he acted quickly to rectify the situation. Since he was not aware of a delivery problem until the individual notified him that a problem existed, I do not find that the Hearing Officer could reasonably have done anything more to expedite its delivery.(1)

The individual also makes several arguments questioning the credibility of a DOE eye witness who testified at the hearing. Specifically, the individual contends that since the LP Officer “has a sight problem in one eye,” his testimony “might” not have been accurate. He also states that the LP Officer admitted during the hearing that he began watching the individual at a time after the individual entered the Wal-Mart and did not see the individual the entire time he was in the store. Thus, the individual argues that the LP Officer is unable to attest to whom the individual spoke in the Wal-Mart. Finally, the individual states that the LP Officer presented testimony that he and the individual were in court together twice. The individual contends that they appeared in court together only once. He argues that since the LP Officer is confused about this fact, this witness’s testimony regarding the Wal-Mart incident should have no credibility.

As stated above, generally, I will not set aside findings of fact made by a hearing officer in these types of cases unless they are clearly erroneous. With this standard of review in mind, I note that the individual has presented no evidence to support his allegation that the LP Officer has a “sight problem.” After carefully reviewing the administrative record in this case, I believe the Hearing Officer's opinion reflects the fact that he observed the demeanor and credibility of the witnesses and reviewed all of the available evidence. Following this review, the Hearing Officer made a factual determination that the course of events transpired as the LP Officer saw and described. I find the individual’s unsupported allegation, that the LP Officer suffers from a “sight problem” and that this “might” mean his testimony was inaccurate, to be merely speculative. Without any additional credible evidence concerning the LP Officer’s alleged “sight problem,” I cannot find that the Hearing Officer erred in his belief that the LP’s Officer’s testimony was accurate.

Also, I find no merit to the individual’s remaining challenges concerning the LP Officer’s credibility. The LP Officer testified that he followed the individual who was pushing an empty shopping cart, that he saw the individual place a pink sticker on a VCR box that the individual subsequently tore open and placed in his shopping cart, and that he saw the individual take the VCR from the store without paying for it. Hearing Tr. at 19. In contrast, the individual continues to contend that the LP Officer did not see that another person gave the individual the VCR to take out of the Wal-Mart. The individual’s statement and the LP Officer’s statement cannot both be true. These conflicting accounts of the individual’s actions at Wal-Mart forced the Hearing Officer to believe one and not the other. Ultimately, after reviewing the entire record, which included the fact that a court found the individual guilty of petit larceny, the Hearing Officer did not believe the individual's explanation for his removal of the VCR from the Wal-Mart without paying for it because it lacked corroboration and credibility. The individual’s credibility problem was especially magnified when the Hearing Officer found the LP Officer’s contrary testimony credible. It did not matter to the Hearing Officer that the LP Officer did not see the individual the entire time nor did he see every person the individual might have spoken to in the Wal-Mart. That kind of intense observation is unlikely given the circumstances. The Hearing Officer found convincing the LP Officer’s testimony supported by other facts in the record that the individual committed petit larceny. Absent any additional credible evidence to support a contrary view of this incident, I cannot find that the Hearing Officer erred in his determination. Finally, I must note that even if the individual provided evidence proving that the LP Officer did not testify accurately regarding the number of times they appeared in court together, this misstatement of a minor fact would not be enough to discredit his entire testimony.

IV. Conclusion

As explained in the above discussion, the individual has not presented any evidence that would make me believe his continued access authorization will not endanger the common defense and security. Therefore, I cannot conclude that a restoration of the individual’s access authorization would be clearly consistent with the national interest pursuant to 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 in writing of the final determination, and provide a copy of the present opinion. The Director of the Office of Security Affairs should provide copies of the correspondence to the Director, Office of Hearings and Appeals; the Manager of the DOE office; DOE counsel; and any other interested 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: June 23, 2000

(1)I must also note that the individual’s objections to the fact that he did not receive the opinion immediately after its issuance are based on a faulty premise. The individual relies on his belief that the regulation contains a strict time limit concerning his receipt of the opinion after its issuance. He misunderstands this portion of the regulation. There is no regulatory requirement that the individual must receive the opinion within a certain amount of time following the issuance of the opinion, only a time requirement concerning the Hearing Officer’s issuance of the opinion. Also, the regulation does not require that the decision be sent through certified mail. The relevant portion of the regulation states the following:

The Office of Hearings and Appeals shall issue (emphasis added) the opinion of the Hearing Officer within 30 calendar days of the receipt of the hearing transcript by the Hearing Officer, or the closing of the record, whichever is later, unless an extension is granted by the Director, Office of Hearings and Appeals. Copies of the Hearing Officer’s opinion will be provided to the Office of Security Affairs, the Manager, the individual concerned and his counsel or other representatives, DOE Counsel, and any other party identified by the Hearing Officer. At that time, the individual shall also be notified of his right to request further review of his case pursuant to §710.28.

10 C.F.R. §710.27(e). Since the Hearing Officer issued his opinion on February 29, 2000, within 30 calendar days of February 1, 2000, the date that he received the hearing transcript, there is no question that the Hearing Officer issued his opinion within the regulatory time limit.