Case No. VSA-0011, 25 DOE ¶ 83,014 (OHA June 28, 1995)

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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 XXXXX's.

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Request for Review

Name of Petitioner: Office of Security Affairs

Date of Filing: April 25, 1995

Case Number: VSA-0011

This determination considers a Request for Review filed by the Office of Security Affairs (OSA) of the Department of Energy (DOE), concerning the eligibility of XXXXX (hereinafter referred to as "the individual") to hold a level "Q" access authorization under regulations set forth at 10 C.F.R. Part 710.<1> The DOE/XXXXX Operations Office (DOE/XXXXX) determined that the "Q" access authorization previously granted to the individual should be suspended, and initiated the present administrative review proceeding. However, the individual requested administrative review of this action before a Hearing Officer and, on March 22, 1995, the Hearing Officer assigned by the DOE Office of Hearings and Appeals issued an Opinion that the individual's access authorization should be restored. In its Request for Review, OSA requests that the Opinion be reviewed on the basis of certain matters raised in its submission.

I. Background

The individual has been employed by XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, the Department of Energy (DOE) contractor that operates the XXXXXXXXXXXX, in XXXXXXXXXXXXXXX, since 1976. At that time, the individual also received a "Q" clearance enabling her to work at the facility. In 1993, the DOE/XXXXX Operations Office (DOE/XXXXX) Personnel Security Division began a re-investigation into the individual's background. As part of this re-investigation, the Personnel Security Division conducted a Personnel Security Interview (PSI) with the individual and initiated a DOE-sponsored mental evaluation of the individual by a board-certified psychiatrist. Following the issuance of the psychiatrist's evaluation, the Director of the Personnel Security Division of DOE/XXXXX determined that information uncovered during the investigation was substantially derogatory and created questions regarding the individual's eligibility for access authorization. Accordingly, the DOE/XXXXX's Manager suspended the individual's level "Q" access authorization and obtained authority from the Director of the Office of Safeguards and Security to initiate an administrative review proceeding.

The administrative review proceeding was commenced by the issuance of a September 9, 1994 letter which notified the individual that the information possessed by the DOE created a substantial doubt concerning her continued eligibility for a "Q" access authorization. I will hereinafter refer to this letter as the Notification Letter. In accordance with 10 C.F.R. § 710.21, the Notification Letter included a statement of derogatory information possessed by the DOE, within the purview of potentially disqualifying criteria set forth in 10 C.F.R. § 710.8(h), i.e. that the individual has an illness or mental condition of a nature that in the opinion of a board-certified psychiatrist, other licensed physician, or a licensed clinical psychologist, causes, or may cause, a significant defect in her judgment or reliability. According to the Notification Letter, DOE/XXXXX reached this determination based on its finding that on XXXXXXXXXXXXXX, Dr. XXXXX, a DOE-sponsored psychiatrist evaluated the individual and then issued a psychiatric report that the individual has a mental condition, diagnosed as "Major Depression, Recurrent, which causes or may cause a significant defect in her judgment or reliability." (As discussed below, the Notification Letter's characterization of this critical finding as coming from Dr. XXXXX' "psychiatric report" is somewhat misleading.) In addition, the Notification Letter identifies medical records maintained by XXXXX, the individual's personal physician and XXXXX, which report several instances in which the individual was treated for depression.

The Notification Letter also informs the individual that she was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding her continued eligibility for access authorization. Accordingly, on September 29, 1994, the individual filed a request for a hearing with the DOE/XXXXX Manager. The DOE/XXXXX forwarded the individual's request for a hearing to OHA and a Hearing Officer was assigned.<2> The hearing was convened in XXXXXXXXXXXXXXX on XXXXXXXXXXXXXXXX, and ten witnesses were called to testify. Pertinent to the present review, the witnesses included: (1) XXXXX, MD, the individual's psychiatrist; (2) XXXXX, MD, the DOE psychiatrist; and (3) XXXXX, the individual's current supervisor.<3> The transcript that was taken of the hearing shall be cited as "Tr."

II. Opinion of the Hearing Officer

On March 22, 1995, the Hearing Officer issued the Opinion, 10 C.F.R. § 710.27, setting forth his determination that restoration of the individual's access authorization will not endanger the common defense and security and is clearly consistent with the national interest. Personnel Security Hearing, Case No. VSO-0011 (March 22, 1995) ("Opinion"). According to the Hearing Officer, this judgment is based upon careful consideration of the factors prescribed in 10 C.F.R. § 710.7(c), i.e. the nature, extent, and seriousness of the individual's mental condition; the circumstances surrounding her mental condition; the frequency and recency of her depressive episodes; her potential for being susceptible to pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence of her depressive episodes; and any other relevant and material factors. Opinion at 5. The application of these factors by the Hearing Officer warrants greater examination.

In considering the individual's condition, the Hearing Officer initially makes a number of Findings of Fact, most notably that: (1) since 1973, the individual has been treated for depression by counseling and/or drug therapy, periodically under the care of psychologists and physicians, including psychiatrists; (2) in

September 1992, the individual voluntarily admitted herself into a hospital psychiatric ward following her complaint to her physician of a sensation, apparently induced by antidepressant medication, that bugs were crawling all over her; (3) in December 1993, the individual attempted suicide by drug overdose having become despondent following a Personnel Security Interview (PSI) conducted by XXXXXXXXXXXXX, a Personnel Security Analyst; and (4) in August 1994, the individual was again hospitalized for psychiatric treatment. See Opinion at 4. Thus, it is undisputed that the individual suffers from recurrent major depressive disorder. Further, the record shows unanimity that there is a significant likelihood that an individual diagnosed with recurrent major depression will have additional episodes.<4> However, as explained below, there is a divergence of opinion regarding the level of increased security risk that would be posed by the individual if she were to suffer another episode of major depression.

According to Dr. XXXXX, the DOE consultant psychiatrist, when he evaluated the individual's condition, he perceived "no reason to think that she has defective judgment or that she is not reliable." Opinion at 7, quoting DOE Exhibit H at 4. However, Dr. XXXXX later agreed to sign a "SYNOPSIS" that was prepared for Dr. XXXXX' signature by XXXXXXXXXXXXX, a Personnel Security Analyst, and which contradicts Dr. XXXXX' initial opinion following his evaluation. According to Jackson's "SYNOPSIS," the individual's depression has a substantial likelihood of returning and causing a significant defect in her judgment or reliability and, based upon the information contained in her personnel security file and [Dr. XXXXX'] evaluation, she has experienced a significant defect in her judgment or reliability. During the hearing, Dr. XXXXX attempted to explain this apparent discrepancy in his diagnosis by stating that in the second instance he was responding to a hypothetical question raised by XXXXXXX, that "if this is a person in a major depressive episode, is there likely to be a deficiency in her function, and the answer is yes." Tr. at 164.

By contrast, the individual's current psychiatrist, Dr. XXXXX, takes a markedly different view concerning the individual's judgment and reliability, based upon approximately twelve visits with the individual and her medical records.<5> At the hearing, Dr. XXXXX testified that the individual's type of depression, recurrent major depression without any symptoms of temporary psychotic states, does not affect memory, the ability to calculate, or rationality, and that her condition characteristically does not cause a defect in judgment. Tr. at 60, 85.<6> While Dr. XXXXX acknowledged that "there would be some areas of judgment that could be impaired," it is his opinion that the areas where the individual's judgment might become impaired would not increase the likelihood of her being a security risk. Tr. at 85. In fact, Dr. XXXXX stated that if the individual were to experience another depressive episode, her condition would result in her exacting greater care and having greater concern regarding judgments and decisions. Tr. at 61, 85. If anything, Dr. XXXXX contends that the individual would tend to doubt herself, question herself, and be very careful to make sure that any decision she made was a correct decision. Tr. at 61.

Moreover, Dr. XXXXX believes the individual to be a "very concerned, conscientious, diligent person who is always extremely careful." Tr. at 63. The Hearing Officer noted in the Opinion that this view was shared by six co-workers who testified at the hearing that, despite her condition, the individual was a "conscientious," "top notch," "good" employee who is "particularly thorough," "diligent" and "a perfectionist" when it comes to security matters. Opinion at 11, citing Tr. at 191-192, 206-207, 213-214, 225, 232, 243-245. As will be discussed further below in considering the Request for Review, one of the co-workers who testified was XXXXX, the individual's supervisor since her clearance was suspended.

In reaching the determination that the individual's access authorization should be restored, the Hearing Officer stated regarding Dr. XXXXX' adverse security assessment of the individual: "I find Dr. XXXXX' explanation for his "amended" diagnosis to be confusing, contradictory, and ultimately unconvincing." Opinion at 8. The Hearing Officer found evidence to support a finding that the Personnel Security Specialist influenced Dr. XXXXX to change his original diagnosis, in part based upon erroneous information.<7> Thus, the Hearing Officer determined that Dr. XXXXX's testimony was more convincing since "Dr. XXXXX's diagnosis is not based on a hypothetical question posed in only general terms by a security analyst, but is based on repeated visits, a significantly longer clinical evaluation of the individual and actual consideration directed to her specific personality traits." Id. at 9. On this basis, the Hearing Officer concludes in the Opinion:

While the individual's depressive episodes and her attempted suicide have caused serious questions to be raised concerning the risk that she might compromise national security, I find that her type of depression, her psychiatric profile, her work record, her openness, and her efforts at rehabilitation all indicate that restoring her access authorization will not endanger the common defense and security and would be clearly consistent with the national interest. Specifically, should she experience a recurrence of depression, I am convinced that it will not affect her judgment or reliability and there is no indication from her work record that it ever has. In fact her psychiatric profile indicates that the individual might actually show less potential to be pressured, coerced, or exploited while under duress. Tr. at 61, 85. For these reasons, I find that the individual's access authorization should be restored.

Id. at 12.

III. Request for Review

In its Request for Review, the OSA asserts that "there are still undisputed facts which tend to cast doubt as to [the individual's] continued eligibility for access authorization." Request for Review at 3. Specifically, the OSA raises two matters upon which it bases its position that the individual's eligibility warrants further review and the determination reached in the Opinion should be reconsidered. First, noting that there is agreement that a future recurrence of depression is likely, the OSA "question[s] how, as Dr. XXXXX asserts, an episode of depression and judgment impairment would make a person less of a security risk." Id. Second, the OSA refers to the testimony of XXXXX, the individual's supervisor, in which he stated that there are days when he has talked on the phone with the individual when she was depressed and, at those times, he felt that the individual "wouldn't need to be at work" and he wouldn't feel comfortable with the individual working "on the line" and "hands on." Id. citing Tr. at 234, 240. The OSA states that "[i]n light of these statements, as well as the somewhat conflicting findings of Drs. XXXXX and XXXXX, we feel [the individual] has not established that restoring her access authorization would be clearly consistent with the national interest as required under 10 C.F.R. § 710.7(a)." Id.

I have carefully considered the record established in this proceeding, the Opinion of the Hearing Officer and the matters raised by the OSA in the Request for Review. After due deliberation, I find that the Opinion reflects "a comprehensive, common-sense judgment, made after consideration of all relevant information," 10 C.F.R. § 710.7(a), and accordingly should not be disturbed. Further, for the reasons discussed below, I find that the security concerns raised by the OSA in the Request for Review are satisfactorily resolved by the evidence in the record, and that the Hearing Officer's recommendation to restore the individual's access authorization should be affirmed.

The OSA states that it is unable to understand Dr. XXXXX's assessment of the security risk that would be presented by a recurrence of the individual's condition. However, I find that Dr. XXXXX fully explained this matter in his testimony:

In major depressions, when psychotic impairment occurs, the nature of the judgment impairment is usually based on the lowered mood state. So, for example, the person may consider that they have some dreadful illness, such as a cancer, that is causing them to become very sick and be at risk of dying, a person may have feelings of great guilt and self-recrimination that are quite disproportionate to any behavior that ever generated that sense of guilt, and a person may hallucinate in those states and hear voices telling them that they are bad, that they are wrong, that they've done evil things and so forth.

Now, the whole direction of those types of impairments is to cause the person to become more doubting of themselves, to question themselves more, to see them -- to be very concerned about any actions that they might take and so forth; and, if anything, the judgment impairment would make a person less and less and less of a security risk in the sense that they would not be prone to being persuaded by other persons to share information because the sense of guilt about even minor infractions is so enormous, so that the risk, in my judgment, would be lessened.

Tr. at 86-87. I find nothing in the record which leads me to doubt Dr. XXXXX's professional judgment. For the same reasons stated by the Hearing Officer in the Opinion, I accord little weight to the conflicting judgment of Dr. XXXXX in view of the dubious circumstances under which it was rendered. Indeed, I note that the OSA itself states in its present Request for Review that "this office, too, questions Dr. XXXXX' explanation as to the alleged discrepancies in his opinion." Request for Review at 3. Finally, while the OSA is apparently uncomfortable with Dr. XXXXX's judgment that the security risk attached to the individual is "lessened" during a episode of depression, it is not necessary that I fully embrace that particular judgment in considering the individual's access authorization eligibility. Rather, the critical inquiry is whether the individual's security risk is in fact "increased" to an unacceptable degree during such an episode. In that regard, my review of the record weighs in favor of the Hearing Officer's determination that the individual does not pose an unacceptable security risk.

Turning to the second matter raised by the OSA Request for Review, I find, having reviewed the overall testimony of XXXXX in context, his testimony does not bear negatively on the individual as a security risk. To the contrary, XXXXX testified that "[the individual] is an excellent worker," and responded "Yes" when asked whether he believed that the individual is qualified to retain a "Q" access authorization. Tr. at 232. XXXXX elaborated further that "[the individual] is very trustworthy, . . . very competent at the tasks that I have given her to do, very timely in her response to any questions, and I wouldn't have any problems giving her any classified information." Tr. at 232-33. As found by the Hearing Officer, this assessment of the individual is shared by other co-workers. See Opinion at 11. Although XXXXX testified that he would not like to have the individual report to work when she was depressed, there is nothing in the record to suggest that possibility. Instead, the evidence supports the Hearing Officer's finding that the individual has a good understanding of her condition and has consistently received treatment, reported her condition, and continued at all times to perform her job well. Id. at 12 (see note 12).

The OSA's Request for Review focused on XXXXX statement that he would not be comfortable with the individual working on the line and hands on when she was depressed. Tr. at 238. However, XXXXX later removed any doubt he might have raised about the individual's fitness by stating that the individual's lack of capacity to perform that type of work, to which she is not assigned, did not make her more of a security risk. Tr. at 239. Since she does not do that kind of work, I find XXXXX statement (that he would not feel comfortable with the individual working on the line) to be irrelevant to the present case.

The ultimate issue is whether restoring the access authorization of this individual "would not endanger the common defense and security and would be clearly consistent with the national interest," even if she suffers from a mental illness that may recur. What if the individual does have a recurrence of severe depression--will it affect her judgment and reliability in such a way as to render her an unacceptable security risk? This question was addressed by Dr. XXXXX when he testified that in his opinion, the individual would be less--not more--of a security risk while she was in the midst of a depressive episode. Although this conclusion initially may seem counter-intuitive to a lay person, I find Dr. XXXXX's expert psychiatric explanation convincing, namely that the nature of the impairment during an episode of depression would make this individual even more careful and guarded than she normally is. In addition, Dr. XXXXX's assessment was initially uncontroverted by DOE's consulting psychiatrist, Dr. XXXXX. The only evidence to the contrary is the bizarre Jackson "SYNOPSIS," a purported psychiatric "opinion" written by a layman that never even considered the individual's specific medical condition.

Finally, it is clear from the evidence that the individual's condition is in remission, and she and her current physicians are managing it well through proper medication and psychotherapy. This is significant because the medical records in the record of this proceeding create the distinct impression that the individual's specific mental condition had never been properly diagnosed or treated until she came under the care of Drs. XXXXXXXXX and XXXXX, beginning in January 1994. In addition to the benign nature of the possible impairment (as explained by Dr. XXXXX), the individual's ability to manage her mental condition in a responsible way is an important factor that weighs in favor of restoring her clearance. From a security standpoint, it is important to consider an individual's willingness and ability to exercise personal responsibility to control the adverse effects of any significant medical condition in order to prevent an unacceptable risk. This principle underlies the DOE's Employee Assistance Program Referral Option (EAPRO) for clearance holders who have substance abuse problems, which, like the individual's condition, are considered "mental illnesses" under the DSM-IV and 10 C.F.R. § 710.8(h). Since this individual is a valued employee, and she is willing to admit the existence of the problem and able to act in a responsible manner to pursue a course of proper medical treatment to reduce the risk to an acceptable level, I am convinced that the security concerns are resolved, and her DOE access authorization should be restored.

Based upon the foregoing, I concur with the Opinion of the Hearing Officer. Pursuant to 10 C.F.R. § 710.28(d), it is my opinion based upon a review of the record and having considered the specific issues raised in the Request for Review that restoring the individual's access authorization will not endanger the common defense and security and will be clearly consistent with the national interest. 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 or representative 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 by the Director, Office of Security Affairs, with respect to each allegation contained in the Notification Letter. 10 C.F.R. § 710.28(f).

Thomas O. Mann

Deputy Director

Office of Hearings and Appeals

Date:

* * * * *

[On December 26, 1995, this proceeding was terminated from administrative review processing prior to a final determination by the Director, Office of Security Affairs]

<1> A level "Q" 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 variously in this Opinion as access authorization, security clearance, or "Q" clearance.

<2> After informing the parties and obtaining their agreement, the OHA Director served as the Hearing Officer in this case; subsequently, he delegated the responsibility for deciding the present request for review to an OHA Deputy Director. See 10 C.F.R. § 710.28.

<3> The Hearing Officer conducted a prehearing tele-conference with the parties on January 11, 1995. At that time, the parties agreed that all of the documentary material they had exchanged would be stipulated into evidence.

<4> As noted in the Opinion, recurrent major depression once diagnosed after a single episode has a 50 percent chance of recurrence. In cases involving individuals who have had more than two episodes, the likelihood of the individual experiencing additional episodes increases to around 80 or 90 percent. Tr. at 121. See also, American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders Fourth Edition, 341-342 (1994).

<5> As of the date of the hearing, Dr. XXXXX had treated the individual approximately twelve times since November 1994. The individual had been treated by Dr. XXXXX's clinic partner, Dr. XXXXX, from January 1994 until Dr. XXXXX passed away in November 1994. Tr. at 57. In rendering his opinion, Dr. XXXXX had accessed and reviewed the individual's prior medical records as well as those of Dr. XXXXXXXX.

<6> Dr. XXXXX testified that there are unusual cases where episodes of major depression are accompanied by psychotic features, including hallucinations. However, Dr. XXXXX testified, the individual has not suffered from this unusual form. Tr. at 85-86.

<7> Contrary to information that was supplied to Dr. XXXXX in Jackson's "SYNOPSIS," the Hearing Officer found no evidence in the individual's voluminous medical records to indicate that she attempted suicide more than once or had tried to conceal information regarding the one attempt. The Hearing Officer stated that "[g]iven the individual's history of openness to her employer regarding her condition, I have no reason to believe that the individual failed to tell Pantex management or the DOE about her suicide attempt. Furthermore, I must also consider the fact that these two allegations in the "SYNOPSIS" are uncorroborated and, in some cases, contrary to verifiable facts in the record. For these reasons, I must accord them no weight whatsoever." Opinion at 11.