* 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 9, 2001

DEPARTMENT OF ENERGY
OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: August 21, 2001

Case Number: VSA-0439

This Opinion considers a Request for Review and Statement of Issues filed by XXXXXXXXXX (the individual) concerning his eligibility to retain an access authorization.(1) The Department of Energy (DOE) regulations governing this matter are set forth at 10 CFR Part 710, and are entitled “Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.”

I. Background

This case concerns the suspension of the individual’s access authorization. The events leading to the suspension in question are fully set forth in Personnel Security Hearing (Case No. VSO-0439), 28 DOE ¶ _____ (2001) and will not be reiterated here. For purposes of the instant security review, the relevant facts are as follows.

The individual has been employed for several years by a DOE contractor in a position that requires him to maintain a security clearance. In August 1997, the local police executed a search warrant for the individual’s premises, found several marijuana plants growing in a wooded area behind his house, and a small quantity of marijuana in the individual’s vehicle. The individual was charged with possession of cannabis and cultivation of cannabis. The day after this arrest, the individual signed a confession, pled guilty to the offenses (both misdemeanors), and paid a fine. In the confession, the individual admitted that he grew the marijuana, and stated that he sometimes traded it for Indian artifacts. The individual promptly reported his arrest to the local DOE security office. Shortly thereafter, in September 1997, the DOE conducted a personnel security interview with the individual (the 1997 PSI). In the 1997 PSI, the individual gave inconsistent statements about his past involvement with marijuana, and about the circumstances surrounding his recent arrest, confession and guilty plea for possession and cultivation. In June 1998, the DOE conducted a second interview with the individual (the June 1998 PSI). In the June 1998 PSI, the individual admitted that some of the information he provided in the September 1997 PSI was not true.

The DOE issued a Notification Letter to the individual suspending his access authorization, and cited the individual’s misrepresentation, falsification or omission of significant information relevant to his eligibility for access authorization as the first reason for the suspension under 10 CFR § 710.8(f). In addition, the Notification Letter cited the individual’s possession of, traffic in, and use of marijuana as a second reason for the suspension, under 10 CFR § 710.8(k). Finally, the Notification Letter cited the individual’s 1997 marijuana arrest, and four previous arrests that occurred between 1985 and 1989 as a third reason for the suspension, under 10 CFR § 710.8(l). According to the Notification Letter, the arrests tended to show that the individual is not honest, reliable or trustworthy, and was subject to pressure, coercion or exploitation.

The individual requested a hearing, and a Hearing Officer was appointed. At the hearing, the DOE presented the testimony of one witness, the personnel security specialist who conducted the 1997 PSI. The individual was represented by counsel, and offered his own testimony and that of six other witnesses: his wife, a friend, a co-worker, his union representative, and two supervisors.

II. The Hearing Officer’s Opinion

Based upon the testimony at the hearing and other record evidence, the Hearing Officer issued an Opinion recommending that the individual’s access authorization not be restored. Personnel Security Hearing (Case No. VSO-0439), 28 DOE ¶ _____ (2001). In his Opinion, the Hearing Officer found that the individual failed to mitigate the Criterion F concern that he had made false statements in the 1997 PSI and in the 1998 PSI about his past use of marijuana. According to the Hearing Officer, the individual’s admission at the hearing that he had used marijuana a few times in high school during the mid-1980s came too late, and did not excuse his previous false statements to the DOE. The Hearing Officer noted that the concern under Criterion F was not that the individual had used marijuana years ago as a youth, but that he had recently lied to the DOE about a matter that was material to his eligibility for a security clearance.

Similarly, the Hearing Officer found that the individual failed to mitigate the Criterion F concern based on his statements at the two PSIs regarding his 1997 arrest for possession and cultivation of cannabis. The Hearing Officer noted that the individual had previously admitted knowing that there was marijuana in his vehicle, admitted being aware that marijuana was being cultivated on his property or his father’s adjacent property, and had signed a confession to the police immediately after his arrest, which stated that “the plants were mine. I do not smoke it or sell it. I sometimes trade artifacts for it. The bag in the truck belongs to me also.” Opinion at 5. Notification Letter, Enclosure 1, at 1-2.

The Hearing Officer was not convinced by the individual’s testimony at the hearing when he tried to explain why he had previously given what he now claimed were misleading statements about his 1997 arrest. At the hearing, the individual changed his story from the 1998 PSI, and denied knowing about the plants growing behind his house, or the marijuana in his truck, before his August 1997 arrest. He attempted to explain away his prior inconsistent statements to the police, his signed confession, and his admissions in the 1998 PSI that he had been aware of the plants growing behind his house, and that he had been aware of the marijuana in his truck. The Hearing Officer found the individual’s varying explanations in the record to be evasive, and concluded that even if the individual had been telling the truth at the hearing, that proved he must have given false information to the DOE during the 1997 and 1998 PSIs.

The Hearing Officer also found that the individual had not yet shown himself to be rehabilitated from the Criterion F concern about giving false statements to the DOE. This finding responded to the individual’s claim that during the hearing, he had finally “come clean” and told the truth about his prior marijuana use and the circumstances of his 1997 arrest. The Hearing Officer reasoned that even assuming he was telling the truth, the individual had not disclosed the fact that he made false statements at the 1997 and 1998 PSIs until the hearing in 2001, and concluded that the brief period that had elapsed since the hearing was not sufficient to demonstrate rehabilitation or reformation by the individual.

The Hearing Officer also concluded that the individual had not mitigated the Criterion K and Criterion L security concerns. With respect to Criterion K, the Hearing Officer rejected the individual’s protestations of innocence in the 1997 arrest on drug charges, finding that the individual’s representations were not adequately supported by credible evidence from independent sources. The individual had claimed that he confessed to the charges because he felt under pressure to plead guilty and pay a fine rather than be prosecuted and possibly convicted of a felony offense. As noted above, at the hearing, he maintained that he did not know the marijuana plants were growing behind his house, nor did he know about the marijuana in his truck until the police searched the premises just before his arrest. However, the Hearing Officer found that the individual had failed to produce evidence from a witness with sufficient knowledge of the facts to corroborate what he insists is the correct, current version of events.

In particular, the Hearing Officer considered the testimony of the individual’s wife, in which she generally supported his story, and concluded that “it does not provide solid corroboration that the individual had no involvement with the marijuana plants or the marijuana found in his truck.” Opinion at 9. The Hearing Officer concluded the individual would have been able to conceal his involvement in cultivating the marijuana plants from his wife, based on her testimony that she did not go into the wooded areas because of snakes. Similarly, the Hearing Officer noted that the marijuana found by the police in the truck was in a concealed location, and the individual’s wife “could not testify with certainty that someone other than the individual had placed it there.” Id. None of the other witnesses who testified for the individual had any personal knowledge of the events. The County Sheriff, who submitted a letter on the individual’s behalf, noted that the individual had been “very cooperative and honest [with the police officers] during his arrest on drug charges.” Id. at 10. The Sheriff’s letter never stated that the individual was innocent, but noted instead that he was “trying to recover from a very bad mistake that he made in his life.” Id. The Hearing Officer implied the Sheriff’s statement “strongly indicates that the individual may have readily acknowledged his guilt at that time.” Id. Based on the facts set forth above, the Hearing Officer found that the individual had neither mitigated DOE’s concerns under Criterion K, nor shown that he was rehabilitated from his marijuana-related activities.

With respect to Criterion L, the Hearing Officer found that four of the individual’s five arrests had occurred many years ago in his youth, and would have been a lesser concern were it not for his 1997 marijuana arrest. The Hearing Officer found that the individual’s 1997 confession and guilty plea to the marijuana charges took place when the individual was a mature, married man, and contradicted the notion that he was rehabilitated from his four earlier arrests. In addition, the Opinion noted the individual’s admission at the hearing that he had given false statements to the DOE about his prior marijuana use, and about the 1997 marijuana arrest, during the 1997 and 1998 PSIs. The Hearing Officer concluded that even if the individual had finally told the truth at the hearing, not enough time had elapsed since the individual’s dishonest behavior ceased to find that he was rehabilitated from DOE’s security concerns under Criterion F or Criterion L.

III. Request for Review

The individual’s counsel filed a Request for Review of the Hearing Officer Opinion, followed by a Statement identifying the issues on which he wishes me to focus. In response to the individual’s Request for Review, the DOE’s Office of Safeguards and Security declined to file any further comments in the case.

IV. Analysis

A. Standard of Review

As a general rule, findings of fact in these kinds of cases will not be set aside unless they are clearly erroneous, giving due regard to the fact that the trier of fact is in the best position to judge the credibility of witnesses. 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)). 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. 10 CFR § 710.27(b). Ordinarily, I will not supplant my judgment for that of the Hearing Officer in such matters. Personnel Security Review (Case No. VSA-0084), 26 DOE ¶ 83,004 (1996). Findings not supported by substantial evidence are taken to be clearly erroneous. Freeport Sulphur Co. v. S/S Hermosa, 526 F.2d 300 (5th Cir. 1976). Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552 (1988). A finding is considered clearly erroneous, when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. U.S. v. United States Gypsum Co., 333 U.S. 364, 395 (1948).

In personnel security cases under Part 710, it is the role of the Hearing Officer to issue an Opinion as to whether granting an access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. 10 CFR § 710.27(a). Thus, in reviewing the Hearing Officer’s Opinion in this case, I must assess whether there is substantial evidence to support a finding that granting an access authorization to this individual would not endanger the common defense and security and would be clearly consistent with the national interest.

As discussed below, after reviewing the entire record in this case, I find no errors in the Hearing Officer’s ultimate conclusion in this case, and affirm his recommendation against restoring the individual’s clearance.

B. Statement of Issues

In his Statement of Issues, the individual sets forth the following reasons why he disagrees with the Hearing Officer’s recommendation not to restore his access authorization: (1) the Hearing Officer misapplied the proper standard for the burden of proof; (2) the individual made no false statements to the DOE; (3) the issue of rehabilitation should focus on the individual’s 1977 marijuana arrest; (4) the individual’s representations of innocence on the1977 marijuana charges are consistent and are adequately supported; and (5) it is improper for the Hearing Officer to infer facts that are not in evidence. I will consider these arguments in sequence, below.

1. The Burden of Proof

The first argument in the Statement begins on a correct note by observing that the governing regulations in 10 CFR Part 710 do not expressly place the burden on the individual to prove his or her eligibility for access authorization. However, the Statement strays immediately into a morass of mistaken assumptions. In this case, according to the Statement, the DOE “seeks to revoke or take away a right which has been afforded to [the individual].” The individual asserts that due process requires the DOE to prove that he is no longer entitled to this right, and the DOE failed to meet its burden of proof. The Statement maintains that the case law cited by the Hearing Officer is not applicable, and that the “standard of proof”should be “consistent with traditional American concepts of justice and fairness,” as recited in 10 CFR § 710.4.

The Statement’s first argument is without merit since it is based on the faulty notion that an individual has a right to a security clearance. A clearance is granted to an individual not as a matter of right, but for the convenience of the Federal government when that individual’s job requires access to classified matter or special nuclear material. An individual’s eligibility for a clearance must be based on a determination that “the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest.” 10 CFR § 710.7(a). Although the DOE regulations in 10 CFR Part 710 do not specifically discuss the burden of proof in administrative review proceedings on an individual’s eligibility for access authorization, the Federal court decisions cited by the Hearing Officer hold that there is a presumption against granting or restoring a security clearance, and squarely place the burden on the individual to present evidence to meet this strict standard. Opinion at 3. The language cited by the individual in 10 CFR § 710.4 about “traditional American concepts of justice and fairness” refers to the opportunity for administrative review of questions concerning an individual’s eligibility for access authorization. The individual has taken full advantage of those due process rights by requesting a hearing, presenting witnesses, and by seeking the present review of the Hearing Officer’s recommendation not to restore his clearance.

2. Whether the Individual’s False Statements in the PSIs Were Significant

The individual’s Statement next concedes that he “was less than candid” in his two PSIs, but maintains that his “alleged misrepresentations” concern his involvement with marijuana more than ten years before he was hired by a DOE contractor (and got a security clearance). According to the Statement, “this is not ?significant’ information as referred to in 10 CFR § 710.8(f).” The individual also contends that the Hearing Officer’s Opinion fails to consider the seriousness of the alleged misrepresentation, and the circumstances surrounding it, including the frequency, recency, or motivation for the conduct, as mandated by 10 CFR § 710.7(c).

I am not persuaded by the individual’s argument that his admittedly false statements about past drug use in the 1997 and 1998 PSIs are without significance in determining his eligibility for access authorization. Illegal drug use is specifically mentioned in § 710.8(k) as relevant to an individual’s eligibility for a clearance. Contrary to the impression conveyed by the Statement, DOE’s concern under Criterion F is not that the individual used marijuana many years ago, but that he deliberately falsified or misrepresented significant information about his past drug use twice during the past four years, and allowed those false statements to persist until he disavowed them in the hearing only a few short months ago. The personnel security system is built on trust, and any false statement to the DOE on a matter that is relevant to an individual’s eligibility for a clearance is a breach of that trust. Moreover, the Hearing Officer did consider the circumstances surrounding the individual’s misrepresentations, and found that they were sufficiently serious and recent so as to preclude findings of mitigation or reformation. The Hearing Officer also noted that the DOE interviewers had warned the individual at the time of both PSIs about the potential consequences of lying, and the individual ignored those warnings.

3. The Issue of Rehabilitation Should Focus on the Individual’s 1977 Marijuana Arrest

In this argument, the individual’s Statement contends that four years have now passed since his August 1997 arrest on marijuana cultivation and possession charges, and this is a significant period for rehabilitation even if the individual were guilty of those offenses. The individual points out that he has steadfastly denied his guilt to those offenses, regardless of his guilty plea entered one day after the arrest. The Statement notes that the individual was not represented by counsel after his 1997 marijuana arrest, and asserts that the fact the individual pled guilty one day after his arrest corroborates his contention that he is not guilty.

I find the individual’s third argument to be unconvincing. Under 10 CFR § 710.27(a), the Hearing Officer is responsible for rendering an initial opinion whether “the grant or restoration of access authorization to the individual would not endanger the common defense and security and would be clearly consistent with the national interest.” In resolving questions concerning the eligibility, the Hearing Officer must consider the factors stated in paragraph § 710.7(c). The Hearing officer is also directed to make specific findings as to each security concern specified in the Notification Letter. 10 CFR § 710.27(c). Thus, it was proper for the Hearing Officer to weigh the evidence in the record to consider whether the individual had shown mitigation or rehabilitation regarding all of the concerns. I agree with the Hearing Officer’s inclusive approach to the issue of rehabilitation, and find that it would have been error if he had focused exclusively on the individual’s 1997 marijuana arrest.

Turning to the Opinion’s analysis of the evidence on the individual’s rehabilitation from 1997 marijuana charges, I find the Hearing Officer did carefully consider the circumstances, and that he was not convinced by the individual’s account of the episode. There is an overlap between the Statement’s third and fourth arguments, and some of the points I will consider here apply to the next argument as well. The Hearing Officer determined that no other witness, not even the individual’s wife, had knowledge of the circumstances that was sufficient to corroborate the individual’s position. I also agree with the Hearing Officer’s conclusion that the Deputy Sheriff’s letter actually contradicted the individual’s claim that he was not guilty of the marijuana offenses. Thus, I agree with the conclusion reached by the Hearing Officer that the individual’s story at the hearing about the 1977 events was not credible. It would be difficult for the individual to show rehabilitation for crimes that he now insists he did not commit, especially when the evidence, including his contemporaneous confession and guilty pleas, weighs heavily against him. I therefore affirm the finding in the Hearing Officer’s Opinion that the individual failed to show rehabilitation for the 1997 marijuana offenses.

4. Whether the Individual’s Claims of Innocence on the1977 Marijuana Charges are Consistent and Adequately Supported

This argument is based on the claim that the Hearing Officer did “not even [consider]“ the testimony of the individual’s wife. The Statement of Issues cites several portions of her testimony to illustrate the basis for this claim, including the following:

Other than referring to these statements, the individual offers no additional explanation why he thinks they should lead me to a different conclusion than the Hearing Officer reached on whether they constitute convincing independent evidence that supports his innocence of the 1997 marijuana offenses.

Contrary to the assertion in the Statement that the Hearing Officer did not consider the wife’s testimony, I find that the Opinion weighed that testimony carefully and ultimately concluded it was unpersuasive. The Hearing Officer explained that an individual seeking to overcome a security concern based on his involvement with illegal drugs must come forward with evidence to corroborate his version of events. This common-sense notion recognizes that an individual’s self-serving statements about involvement with illegal drugs, standing alone, are generally unconvincing. The Hearing Officer had put the individual on notice that he would have to present additional witnesses to corroborate his story, discussing this important matter during two prehearing conference calls. Opinion at 9. The individual’s wife was the only witness who purported to have knowledge that could back up his story. In his Opinion, the Hearing Officer decided that “her knowledge of these events was too limited to corroborate the individual’s assertions concerning his noninvolvement with the marijuana discovered by the police.” Id. Nothing mentioned in the Statement, including the testimony summarized above, leads me to question the Hearing Officer’s conclusion about the probative value of the wife’s testimony.

5. It is Improper for the Hearing Officer to Infer Facts not in Evidence

The Statement’s final argument is based on two statements in the Opinion where the Hearing Officer considered a letter from the Deputy Sheriff that the individual submitted as character evidence to mitigate the 1997 marijuana offenses. The first statement appears in the text, and the second appears in a footnote to that text. The individual takes issue with the Hearing Officer’s conclusion that the Sheriff’s characterization of the individual as “cooperative and honest at the time of his arrest, strongly indicates that the individual may have readily acknowledged his guilt at that time.” Opinion at 10. The entire footnote is reproduced below, with the challenged language in italics:

From the tone of his letter as well as from the testimony of the individual and his wife (Hearing TR at 94, 133), it is evident that the County Sheriff knows the individual well and is generally sympathetic to him. I therefore believe that the individual’s decision not to present the testimony of this knowledgeable and sympathetic witness strongly indicates that the County Sheriff would have presented testimony detrimental to the individual’s position that he had no prior awareness of the marijuana found growing near his home and concealed in his truck

Id. at n. 1. The individual asserts that these statements constitute improper inferences on the part of the Hearing Officer that are unsupported by evidence in the record that the testimony would have been unfavorable had the witness been called to testify in person.

In my view, the first statement above is not an unreasonable conclusion, based on the actual words in the Deputy Sheriff’s letter, and the totality of the evidence before the Hearing Officer. In fact, the individual did readily acknowledge his guilt at the time. The individual may be disappointed that the Deputy Sheriff’s letter did not convince the Hearing Officer he was innocent of the marijuana offenses, but that does not mean the Hearing Officer drew an unwarranted conclusion from it. As for the footnote, it comes after the Hearing Officer’s determination that the Deputy’s letter did not exculpate the individual, and it is merely an aside comment that did not affect the Opinion’s recommendation in any material way. Thus, any inference of a fact not in evidence was harmless.

C. Summary

After carefully considering the record in this case and the arguments in the Statement of Issues tendered by the individual on review, I conclude that the Hearing Officer did not err in finding that the individual had not mitigated the security concerns associated with Criteria F, K and L. I therefore affirm the Opinion of the Hearing Officer in Case No. VSO-0439.

D. Conclusion

As indicated by the foregoing, I cannot conclude that the restoration of this individual’s access authorization will not endanger the common defense and security and will be clearly consistent with the national interest. Accordingly, it is my opinion that the individual’s access authorization should not be restored. 10 CFR § 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 CFR § 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 the findings of the Director, Office of Security Affairs, with respect to each allegation contained in the Notification Letter. 10 CFR § 710.28(f).

George B. Breznay
Director
Office of Hearing and Appeals

Date: October 9, 2001

(1) An “access authorization” is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 CFR § 710.5. Such authorization will be referred to variously in this Opinion as access authorization or security clearance.