Case No. VSA-0032, 25 DOE ¶ 83,004 (OHA Dec. 13, 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

Opinion of the Director

Case Name: Personnel Security Review

Date of Filing:October 2, 1995

Case Number: VSA-0032

This Opinion concerns the eligibility of XXXXX ("the individual") for "Q" 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 (DOE) XXXXX Field Office (DOE/XXXXX) has denied the individual's request for 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. The hearing was held on XXXXXXXXXXXXXX, and on September 1, 1995, the Hearing Officer issued an Opinion recommending against granting access authorization to the individual. On October 2, 1995, the individual filed a Request for Review of the Hearing Officer's Opinion pursuant to 10 C.F.R. § 710.28. This Opinion considers the individual's contentions set forth in her Request for Review that there is inadequate factual support for the Hearing Officer's Opinion.

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 permitees, 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).

On April 11, 1995, DOE/XXXXX issued a Notification Letter to the individual informing her that information in the possession of DOE created a substantial doubt concerning her eligibility for access authorization. The Notification Letter specified that derogatory information in the possession of DOE/XXXXX indicates that the individual has a mental condition which, in the opinion of a board-certified psychiatrist, causes or may cause a significant defect in judgment or reliability (see 10 C.F.R. § 710.8(h)["Criterion H"]). The Notification Letter provided substantial supporting information for this allegation, and offered the individual the opportunity to resolve the substantial doubt concerning her eligibility by participating in a hearing pursuant to Part 710 or by allowing the Manager of DOE/XXXXX to decide.

The individual requested a hearing in order to resolve the issue of her eligibility for access authorization. That hearing was held on XXXXX. The individual, her family physician, a psychologist and four co-workers testified on behalf of the individual. The individual also presented letters of support from the manager of the XXXXXXXXXXXX Employee Assistance Program and from a psychologist who had evaluated her as unstable in 1990. A DOE Personnel Security Specialist and XXXXX, M.D., the board-certified psychiatrist who had evaluated the individual at DOE/XXXXX's request, testified on behalf of the DOE.

At the hearing, the DOE presented evidence that the individual suffers from a mixed personality disorder which has features of various personality disorders including borderline personality, narcissism, hysterical and antisocial traits.<2> Transcript of XXXXX Hearing at 64 [hereinafter Tr.]. These traits allegedly surfaced in the individual's relationship with her ex-husband, characterized as "chaotic," and spilled over into her separation in XXXXX, subsequent divorce in XXXXX, and life as a single parent today. The individual and her ex-husband had a long history of acrimonious relations--public altercations, police intervention, subsequent incarceration, suicide threats by the individual, allegations of child abuse and unfit parenting, financial problems and bitter and extensive custody and child support litigation. See Personnel Security Interview at 3 (January 29, 1993); Letter from Dr. XXXXX to Acting Chief, Internal Security Branch, DOE/XXXXX, at 2 (August 24, 1992) ("XXXXX Report"); Transcript of In Re The Marriage of XXXXX and XXXXX at 14 (May 18, 1995) ("Contempt Hearing").

After considering all relevant information, the Hearing Officer issued an Opinion on September 1, 1995, in which she found that the individual suffers from a personality disorder that may cause a defect in her judgment or reliability. See XXXXX Field Office, Case No. VSO-0032, 25 DOE ¶ 82,765 (1995) ("September 1 Opinion"). Accordingly, the Hearing Officer found that access authorization should not be granted since she was unable to conclude that such an action would not endanger the common defense and security and would be clearly consistent with the national interest. Id.

On October 2, 1995, the individual's request for review was received by the Office of Hearings and Appeals (OHA). On October 17, 1995, OHA received the individual's statement of issues ("Statement"), which was then forwarded to the Office of Security Affairs (OSA) for a response. The OSA declined an opportunity to respond to the individual's request for review. See Memorandum from Edward J. McCallum, Director, Office of Safeguards and Security, to Director, OHA (October 26, 1995). On October 26, 1995, the administrative record of this proceeding was closed.

II. Analysis

Under 10 C.F.R. § 710.28(a), either the Office of Security Affairs or the individual involved may file a request for review of a Hearing Officer's Opinion with the OHA Director. Thereafter, a party seeking review must file a statement identifying the issues on which he or she wishes the OHA director to focus, and the opposing party may then file a response to such statement. 10 C.F.R. 710.28 (b). In considering requests for review, I will 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 concerning the factual basis of the Hearing Officer's Opinion. Instead, the only issues before me are the contentions advanced by the individual in her request for review and Statement. I consider these issues successively below.

A. Whether the Opinion of Dr. XXXXX Is Outdated and Unreliable

The individual strongly protests the use of Dr. XXXXX's diagnosis as the basis for DOE's contention that she suffers from a mental condition which may affect her judgment and reliability. According to the individual, the diagnosis is "outdated and unreliable, and provides an insufficient basis to deny my access authorization." Statement at 1. I cannot accept the individual's position.

Dr. XXXXX's diagnosis of the individual's mental condition at the XXXXX hearing was based on information gathered from 1) a 1992 diagnosis based on an August 1992 personal interview; 2) an evaluation in April 1993 based on three psychological and/or custody evaluations completed by other mental health professionals in 1990; 3) an evaluation in August 1994 based on information received by DOE since the 1993 evaluation; and 4) a brief, unscheduled interview at the July 1995 hearing. Tr. at 60-62. After this interview, Dr. XXXXX affirmed his original 1992 diagnosis that the individual suffers from a personality disorder.

Reliance on dated information also concerned the Hearing Officer. She voiced her concern that there could have been a substantial change in the individual's mental state in the interval between the personal interview (August 1992) and the hearing. Tr. at 111, 112. Dr. XXXXX agreed with her concern, but explained that it would have been dangerous to change his opinion without seeing the individual in person. Tr. at 109. At the suggestion of DOE counsel, and in an effort to ascertain the individual's current mental state, Dr. XXXXX briefly interviewed the individual during the hearing, and came to the conclusion that the characteristics of a personality disorder continue to exist. Tr. at 172-177. The interview consisted of Dr. XXXXX asking the individual questions that he felt were necessary to update his 1992 diagnosis. Tr. 113-129.

Given Dr. XXXXX's diagnosis, the burden is on the individual to provide evidence to refute the charges against her. In the past, other individuals have successfully resolved questions of eligibility for access authorization by presenting evidence of mitigating factors that have favorably resolved these questions. Some mitigating factors considered under Criterion H are:

a. A current medical diagnosis that the individual's condition that caused a significant defect in judgment or reliability is in remission or controlled by medication to the extent that a probability of recurrence is extremely small.

b. There has been no evidence of the individual's condition or disorder for the past 10 years.

c. Medical diagnosis that the condition was temporary (e.g., one caused by marital discord), the situation or circumstances causing the condition have been resolved, and the individual is no longer unstable.

Adjudicative Guidelines for Determining Eligibility For Access to Classified Matter and Special Nuclear Material, DOE/OSA, at 15 (April 1994); see, e.g., Personnel Security Hearing, 25 DOE ¶ 82,751 (1995).

To support her allegation that Dr. XXXXX's opinion should not be given much weight, the individual relies on the fact that she met personally with him only once, in 1992, and also refers to specific testimony in the hearing transcript as proof that she no longer displays the characteristics of an individual with a personality disorder. Statement at 2. In response, Dr. XXXXX stated at the hearing that the material he evaluated after his 1992 interview was presented to him merely to "see if additional information from the past would have affected [his] past opinion." Tr. at 106. DOE/XXXXX did not ask him to re-evaluate the individual, for reasons that remain unknown. Id. at 107. He admits that there are risks in relying on the work of others. Id. Notwithstanding, I find that Dr. XXXXX's diagnosis was reinforced by a more contemporaneous interview and remains the most persuasive evidence concerning the individual's psychiatric condition.

In her Statement, the individual cites favorable testimony which she contends contradicts Dr. XXXXX's findings. However, the testimony to which she refers was offered by the individual's co-workers, who are not qualified mental health professionals.<3> The record also reflects testimony from the individual's family physician and a psychologist retained by the individual for the purposes of evaluating her psychological state. However, the family physician stated that he has never performed any kind of evaluation of the individual's mental condition. Tr. at 138.

The psychologist, Dr. XXXXX, testified that a battery of psychological tests performed on the individual did not show any kind of personality disorder. Tr. at 162. However, Dr. XXXXX also admitted that it was possible that the tests would not uncover a personality disorder. Tr. at 163, 164. In addition, unlike Dr. XXXXX, Dr. XXXXX had no background reports (i.e., no information from anyone but the individual) on the family situation on which to base any diagnosis about the resolution or duration of her mixed personality disorder or the resolution of the circumstances causing this condition. Tr. at 165. In fact, it appears that the individual has had no continuing therapy for her condition. Tr. at 116-119, 130.

Therefore, although I am not entirely comfortable with Dr. XXXXX's ad hoc update, the record does not contain any reliable basis to refute Dr. XXXXX's opinion. Thus, I must conclude that the individual's mental condition still exists. There was no medical diagnosis presented that the condition was temporary, the situation causing the condition has been resolved, and the individual is no longer unstable. Nor do I find any other evidence which lessens the credibility of Dr. XXXXX's diagnosis.

I note that the individual states that "the 'financial chaos and the child rearing chaos' no longer exist." Statement at 2. The fact that the individual has made such statements was a factor in the Hearing Officer's finding that Dr. XXXXX's diagnosis was correct. The administrative record contradicts the individual's statement, and she displays the evasiveness and lack of honesty which Dr. XXXXX contends is a feature of her mental condition. Tr. at 117, 118, 127-129. As recently as May 1995, the individual and her husband spent time in jail for contempt of court because, in the words of the judge, "both parties have fault and both parties have not complied with this court's order and orders in the past." Transcript of Contempt Hearing at 17 (May 18, 1995). The judge also bemoaned the amount of litigation in this case and the parties' failure to cooperate with each other over a seven-year period. Id., at 14. While examining the individual, the Hearing Officer and Dr. XXXXX experienced significant difficulty in eliciting the facts surrounding the court proceeding and the individual's subsequent incarceration. Tr. at 114, 127. She refused to accept any blame for the situation. Id., at 128-131. Many people get divorced and some of those divorces are bitter, but seven years of litigation is extensive by any standard. The existence of such an acrimonious post-divorce battle is consistent with and supports Dr. XXXXX's evaluation.

B. The Hearing Officer Discounted or Ignored the Majority of the Evidence and Testimony, Which Conflicts With Dr. XXXXX's Diagnosis

The individual alleges that the Hearing Officer did not give the appropriate weight to the favorable testimony she presented during the hearing. See Statement at 3. She restates her opinion that reliance on Dr. XXXXX's diagnosis, which was based on a three-year old interview, is not acceptable and refers to a citation in the September 1 Opinion in which old evidence was allegedly discounted. See Statement at 3 (citing September 1 Opinion at 85,602-4 (citing XXXXX, 25 DOE ¶ 52,573 (1995); Oak Ridge Operations Office, 25 DOE ¶ 82,755 (1995))). The individual's attempt to rely on those cases is not persuasive. In those cases, evidence of prior conduct was discounted because there were no recent derogatory incidents. In contrast, in the instant case, the individual's refusal to follow a court order prescribing visitation resulted in her incarceration only two months prior to the DOE hearing. See Transcript of Contempt Hearing (May 18, 1995).

Although it is unfortunate that OSA did not ask Dr. XXXXX to make a formal reassessment of the individual prior to the hearing, his opinion is still reliable since it is based on a valid personal evaluation which was updated by reports in the intervening years and a brief interview during the hearing. As a board-certified psychiatrist, Dr. XXXXX is considered a qualified mental health professional under our regulations, and his opinion stands uncontroverted. Although other professionals disagreed with portions of Dr. XXXXX's assessment of the individual, none was able to definitively state that no personality disorder currently exists. See discussion supra Section II.A. For example, the information introduced at the hearing from Dr. XXXXX <4> consisted of a letter dated October 1994 stating that she has spoken with the individual over the years and finds her to be mature, developmentally appropriate and a good mother. See Letter from Dr. XXXXX , October 10, 1994. However, the letter contains the caveat that "[i]t is my understanding that things are much more normal now." Id. No information is provided to show that Dr. XXXXX has evaluated the individual since diagnosing her with a personality disorder in July 1990.

In addition, Dr. XXXXX admits that the psychological tests that she gave the individual may not disclose a personality disorder. See discussionsupra Section II.A. Dr. XXXXX was not aware of, and therefore could not question the individual about, any of the contradictions uncovered in her clearance investigation. Thus I accept the opinion of Dr. XXXXX that the individual continues to suffer from a mental condition which may cause serious defects in her judgment or reliability. I have considered many factors, chief among them 1) the incomplete and unsupported psychological evaluation offered as evidence to refute Dr. XXXXX's opinion, 2) the fact that none of the co-workers who testified in her favor is a qualified mental health professional, and 3) her turbulent and litigious relationship with her ex-husband, seven years after filing for divorce.

C. The Hearing Officer Misinterpreted Certain Information, Rendering Her Conclusions Erroneous

Finally, the individual attempts to justify her testimony at the hearing, described by the Hearing Officer as evasive, as merely "guarded." Statement at 3. The individual explains that her defensiveness could justifiably be traced to the fact that Dr. XXXXX's diagnosis could end her career. She contends that the Hearing Officer incorrectly uses her "somewhat defensive" exchanges with the doctor to evidence a personality disorder. Id. I examined the transcript carefully, paying particular attention to the explanations provided in the individual's Statement. I find that the Hearing Officer was correct in interpreting the testimony of the individual as fraught with evidence of evasiveness and a reluctance to be forthright in her statements.

During the hearing, Dr. XXXXX asked the individual had she had any "police problems" since August 1992. Tr. at 114. She responded that she had not, but then went on to relate details of an incident in October 1994 where her husband had called the police to complain about her. Id. Moreover, only after questioning from the DOE counsel were the details of her incarceration in May 1995 uncovered. The individual contends that because she was taken to jail directly from court without being arrested by the police, her answer was accurate. I do not find her explanation convincing. When asked whether she had any "legal repercussions" from her relationship with her ex-husband, the individual replied that her attorney is "taking care of it." Tr. at 114. The individual also explains that because her lawyer was advised by her supervisor that her incarceration for contempt of court was not reportable, she did not consider it a legal or police problem. Again, her reasoning is not persuasive. The average person would consider a stay in jail a "police" problem, and appearances in court should reasonably be considered a "legal" problem. When the individual uses such convoluted logic to downplay her personal problems, she gives credence to Dr. XXXXX's diagnosis.

Next, the individual criticizes the September 1 Opinion for concluding that she was sentenced to a jail term for failure to participate in mediation. Statement at 5. She states that although the judge mentioned the failure to mediate as an "aggravating factor," the sentence was for contempt of court only. Id. Again, the individual belabors the semantics of the Opinion while avoiding the true issue--the high level of chaos in her personal relationship with her husband and its effects on her judgment or reliability. In November 1994, the court ordered the individual to honor a prescribed visitation schedule, ordered her ex-husband to pay child support and ordered both parties to engage in mediation. Transcript of Contempt Hearing at 3, 7. When they had not fulfilled these obligations by May 1995, the court sentenced both to jail. Id., at 16, 17.

The individual calls these "isolated, minor discrepancies." Statement at 5. I do not agree. A reasonable person would understand that, in this proceeding, the purpose of a question about "legal" or "police" problems is to elicit information about any arrests, charges or detentions by any law enforcement authorities or any violations of any laws, regulations or ordinances. This information is relevant to a common-sense judgment about the granting of access authorization. 10 C.F.R. § 710.7 (a). As an example of the evasiveness found throughout the individual's testimony, I offer this exchange between the individual and Dr. XXXXX:

Q. So have you had any [psychiatric] treatment since ...1992?

A. No. ...[W]hen I have a problem, I go to the Employee Assistance Program (EAP) and speak with them.

Q. How many times have you been to the EAP for treatment?

A. I have gone to speak. I wouldn't call that treatment. I'm not really understanding your question.

Q. ...Have you had any psychiatric treatment since 1992?

A. Well, it depends on your definition of psychiatric treatment. I'm not understanding your question.

Tr. at 117.

The individual asked DOE counsel for clarification, and testimony resumed as follows:

Q. Why don't you tell him how often and who you have seen.

A. I saw XXXXX, and there is a letter in the file about that.

Q. And how often?

A. As I say, on an as needed basis.

Q. And how many times have you seen her up to this date?

A. She is no longer with the program.

Q. How many times have you seen her?

A. I don't have those records before me.

Tr. at 118.

I must agree with Dr. XXXXX and the Hearing Officer that the individual refused to volunteer any negative information about herself, evading even the most straightforward questions. Therefore, I find that the Hearing Officer did not misinterpret the individual's testimony, and the Hearing Officer's conclusion that Dr. XXXXX had a factual basis for finding the individual evasive is not erroneous.

III. Conclusion

I have thoroughly considered the record of this proceeding, including the submissions of the parties and the evidence presented and the testimony of the witnesses at the XXXXXXXXXXXX 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 should not be granted access authorization since I am unable to conclude that such an action would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a).

As explained in this Opinion, I find that the individual has failed to rebut the finding that she has a mental condition which in the opinion of a board-certified psychiatrist, causes or may cause a significant defect in judgment or reliability. Substantial and credible evidence exists to support a finding that the individual continues to exhibit the characteristics of a mixed personality disorder. Accordingly, it is my opinion that access authorization should not be granted.

George B. Breznay

Director

Office of Hearings and Appeals

[On February 21, 1996, the Director, Office of Security Affairs, made a final determination to deny the individual's request for a Department of Energy access authorization.]

<1>1/ A "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 an access authorization, security clearance, or "Q" clearance.

<2>2/ A person with borderline personality exhibits intense difficulties modulating emotions, unstable interpersonal relationships, suicidal behavior, and inappropriate and intense anger. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 654 (4th ed. 1994) ("DSM-IV"). Some features of narcissistic personality disorder include reacting to criticism with intense feelings, exploiting others, and self-aggrandizement. DSM- IV at 661; XXXXX Report at 10; Tr. at 79.

<3>3/ Dr. XXXXX found that to the credit of the individual, her personality disorder did not surface in her work environment, and in addition she was able to successfully resolve the serious financial problems stemming from her divorce. Tr. at 104, 111, 173-175.

<4>4/ Dr. XXXXX is a psychologist who performed a psychological evaluation of the individual and diagnosed her with a mixed personality disorder in 1990. See Letter from Dr. XXXXX to District Court Judge, XXXXXXXXXXXXXXXXXXXXXXXXX (July 12, 1990).