Case No. VSA-0082, 26 DOE ¶ 83,016 (OHA September 15, 1997)

Case No. VSA-0082, 26 DOE ¶ 83,016 (OHA September 15, 1997)

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* The original of this document contains information which is subject to withholding from disclosure under 5 U.S.C. 552. Such material has been deleted from this copy and replaced with XXXXXXX’s.

September 15, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Request for Review

Case Name: Personnel Security Review

Date Filed: June 6, 1996

Case Number:VSA-0082

I. PRELIMINARY STATEMENT

This opinion concerns a request filed by XXXXXXXXXXXXXXXXX (the Individual) for review of a determination issued by a Hearing Officer on April 22, 1996, under the regulations set forth in 10 C.F.R. Part 710, entitled “Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.” Personnel Security Hearing, Case No. VSO-0082, 25 DOE ¶ 82,800 (1996).

The Hearing Officer I appointed in this matter was required to consider the question of 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). In his opinion, the Hearing Officer found that the Individual suffered a mental disorder, that a distinct possibility existed that the Individual would again stop taking medication prescribed for the disorder, and that the Individual had not mitigated the security concerns raised by the mental condition. Consequently, the Hearing Officer concluded that access authorization should not be granted.

On June 6, 1996, the Individual filed a brief notice requesting a review of the Hearing Officer's opinion. Subsequently, in a letter dated January 9, 1997, a detailed statement was filed specifying the Individual's particular concerns with the opinion and the matters he requested be reviewed. In this statement, the Individual seeks review concerning (i) the implication of several errors in the record, (ii) the applicability of cases cited by the Hearing Officer, (iii) the conclusion that the Individual is likely to again cease taking medication prescribed for his mental disorder, and (iv) a review of the differences between the diagnoses of the treating psychiatrist and the DOE consulting psychiatrist. Letter from the Individual to Richard T. Tedrow (January 9, 1997).

II. BACKGROUND

The sequence of events that led to this proceeding began when the Individual sought employment with a DOE contractor. Because the position involved access to restricted areas, a security clearance was required. As part of the clearance process, an interview with the Individual was conducted by a DOE Security Specialist on June 15, 1995. The interview and background check revealed information that the Individual was under treatment for a mental disorder for which hospitalization had occurred on two occasions, most recently in December 1994. Under the circumstances, the Individual was referred for examination to a consulting psychiatrist for DOE (the DOE psychiatrist). The DOE psychiatrist interviewed, examined and tested the Individual on July 15, 1995. The DOE psychiatrist subsequently reported that it was his "opinion that the subject's mental condition does meet the criteria of 10 C.F.R. § 710.8(h): that the subject has a mental condition that may cause a significant defect in judgement and reliability under distressful emotional conditions." See Letter from the DOE psychiatrist (August 2, 1995). That is to say, the DOE psychiatrist recommendedagainst granting the Individual a security clearance. As a result, a Notification Letter was sent to the Individual on October 4, 1995, in which DOE stated that there existed "substantial doubt concerning your eligibility for access authorization . . ." As basis for this determination, the letter stated that:

On July 15, 1995, you were evaluated by . . . a DOE-sponsored psychiatrist. In [the DOE psychiatrist's] professional opinion, you have a mental condition which may result in a significant defect in your judgment and reliability. You have an Axis II personality disorder which raises the concern that you could become vulnerable to blackmail, coercion, or bribery if your emotionally decompensated, depressed state returned.

Thus access authorization was withheld. The Notification Letter also stated that the Individual was entitled to request a hearing "for the purpose of affording you an opportunity of supporting your eligibility for access authorization." In a letter dated October 16, 1995, the Individual filed a request for a hearing for this purpose.

Before the hearing was held, the basis for the determination of the October 4, 1995 Notification Letter was revised:

"to more specifically identify the conditions identified by [the DOE psychiatrist]:

On July 15, 1995, you were evaluated by . . . a DOE-sponsored psychiatrist. In [the DOE psychiatrist's] professional opinion, you have the following mental conditions which may cause a significant defect in your judgment and reliability:

Depressive Disorder: Major Depressive Disorder, recurrent;

Bipolar II, Depressed; and

Mixed Type Personality Disorder, including Avoidant Type Personality and

Dependent Personality Features.

Amendment to Notification Letter (February 9, 1996).

Following the hearing, the Hearing Officer issued an opinion stating that:

In view of the criteria set forth in 10 C.F.R. Part 710, and the evidence in the record, I believe that valid and significant derogatory information has been established under 10 C.F.R. § 710.8(h). The derogatory information casts doubt about whether granting the Individual access authorization would not endanger the common defense and would be clearly consistent with the national interest. It is therefore my opinion that access authorization should not be granted to the Individual.

Hearing Officer Opinion at 8. This is the determination of which the Individual is requesting review.

The final element of background that is necessary to fully understand this proceeding involves differences between the diagnosis of the DOE psychiatrist who examined and interviewed the Individual for purposes of the security clearance process, and the Individual's psychiatrist who first saw and evaluated the Individual when he was hospitalized in December 1994, and who has treated him since that time. The DOE psychiatrist diagnosed the Individual as having an Axis I depressive personality disorder and an Axis II bipolar disorder. In the DOE psychiatrist's testimony, he stated that the Individual "is subject to a major depressive disorder if he is exposed to such things as rejection or feelings of insecurity, like job security, or that he is not performing well or he's not doing what is expected of him." Transcript of Hearing at 39 (hereinafter "Trans.").

The Individual's psychiatrist diagnosed a cyclothymic disorder, rather than an Axis II bipolar disorder, but testified that the difference was a "fairly subtle one." Trans. at 74. The Individual's psychiatrist does not fully agree with the DOE psychiatrist's Axis I personality disorder diagnosis because it was time specific, that is, the diagnosis was made by the DOE psychiatrist based upon a single evaluation. The Individual's psychiatrist believes that "[t]he difficulty with time specific testing or even single evaluations or . . . [evaluations made] . . . over a brief period of time is that personality disorders are characterized by a long term repetitive method of dealing with the world around you in a way . . . that's difficult to assess though formal testing or . . . short evaluation." Trans. at 76. In other words, the Individual's psychiatrist does not think that the Axis I personality disorder diagnosis can properly be made on the basis of a single evaluation.

III. REGULATORY BACKGROUND

An administrative review proceeding under Part 710 is designed to protect the national security. It is not a criminal proceeding, which has procedures that are designed to protect an individual from unjust imprisonment. DOE does not have to prove "beyond a reasonable doubt" that an individual has committed a crime or engaged in other inappropriate behavior to justify the revocation of his security clearance. Rather, where there is doubt, it must be resolved against granting or restoring a security clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988).

Under Part 710, DOE may suspend or deny an individual’s access authorization "where [derogatory] information is received which raises a question concerning the continued eligibility of an individual for DOE access authorization . . ." 10 C.F.R. § 710.10 (a). DOE need not prove that an individual is a risk to national security. The agency is only required to have reliable information that reasonably tends to establish that a question exists as to the individual’s eligibility for an access authorization. 10 C.F.R. § 710.9 (a).

After a question concerning an individual’s eligibility for an access authorization has been raised, the burden shifts to the individual who must support his eligibility for access authorization. See 10 C.F.R. § 710.21(b)(6). He must come forward with convincing factual evidence that "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." See 10 C.F.R. § 710.27(a). In short, the individual must prove the existence of circumstances that mitigate the security concerns caused by the derogatory information.(1)

Here, it is uncontested that the individual is suffering from a mental illness that has impaired his judgment and reliability in the past. To mitigate the security concerns associated with this illness, the individual must show, for example with credible medical testimony, that the likelihood of a recurrence that would impair judgement or reliability is small. See, Personnel Security Review, Case No. VSA- 0032, 25 DOE ¶ 83,004 (1995). This is a burden that cannot reasonably be met merely by presenting evidence that the Individual is currently taking medication that has reduced the symptoms of the illness.

IV. REVIEW

In the Request for Review, the Individual points out that there are a number of factual background items in the DOE psychiatrist's report that are incorrect. These involve the Individual's high school history, when he began dating and living with his spouse, and a statement that the Individual and his spouse "'went to the courthouse' to have [their] marriage declared as common-law." Also, the DOE psychiatrist's report incorrectly stated the ages of the Individual and his spouse. On this basis the Individual asserts that the DOE psychiatrist's "attention to details is lacking and [that] should cast doubt on . . . [the DOE psychiatrist's] . . . entire opinion.” Request for Review at 1.

The errors or misstatements are inconsequential and have no discernable impact upon either the DOE psychiatrist's diagnosis and opinion or the Hearing Officer's determination. The DOE psychiatrist's examination of the Individual involved a lengthy personal interview, and an examination that included the Minnesota Multiphasic Personality Inventory, Revised Edition, the Million Clinical Multi-Axial Inventory-III, and an oral "mental status exam." Trans. at 15-16. These tests are detailed, extensive diagnostic tools that are widely used and recognized in the psychiatric profession. Furthermore, the results of such tests have frequently been admitted and accepted as evidence in this type of proceeding. These tests and other evaluations, and the DOE psychiatrist's interview of the Individual, are the principal bases for his evaluation and opinion. Therefore, I cannot agree that the incorrectness of a very few relatively minor items of background information should alter the DOE psychiatrist's evaluation and opinion.

The Individual also questions the applicability of several citations that appear in the Hearing Officer's Opinion: (1) Personnel Security Hearing, Case No. VSO-0014, 25 DOE ¶ 82,755 (1995), (2) Personnel Security Hearing, Case No. VSO-0032, 25 DOE ¶ 82,765 (1995), (3) Personnel Security Hearing, Case No. VSO-0073, 25 DOE ¶ 82,794 (1996). Request for Review at 3. The Individual argues that these cases are not applicable to this case because they variously involve habitual use of alcohol to excess, truthfulness, and/or financial irresponsibility, elements that are not present in the Individual's case.

Case references or citations may be helpful in evaluating facts and circumstances presented in various proceedings. For example, citations may be used when the prior case supports in some way a principle relevant to the present case. Such citations do not, however, and should not be read as meaning that the prior case is identical in all respects. These references may also be of benefit to a reader, certainly valuable in the event a person involved wishes to have an opinion reviewed, and are useful as general guidance. At the same time, no two cases are identical, and for that reason a case cited in a particular opinion need not be applicable in all respects.

It is correct that many of the elements present in the cited cases do not exist in this proceeding. However, all of the cited cases also involve mental conditions which may cause a defect in judgement or reliability. Case No. VSO-0014 involves depression, in Case No. VSO-0032 there is present a "personality disorder," and one of the elements in Case No. VSO- 0073 was the mental condition "Antisocial Personality Disorder." I conclude that the reasoning and principles represented by these citations -- as they parallel this proceeding -- may well be useful here and are appropriate guides and reference points.

The Individual also raises the issue of his having once discontinued the medication prescribed by the Individual's psychiatrist for his mental condition. In brief, when the Individual learned that his spouse had an "affair," he became depressed, discontinued his medication and engaged in other potentially self destructive actions, including threatening suicide with a pistol. The Individual assures us that he will not again cease taking the medications prescribed for the mental condition. Request for Review at 2.

There is no reason to doubt the sincerity of this commitment. But at the same time, the statement was made at a time when the Individual had been under medication for only 24 months, during which time he had stopped taking the medication for a three-week period. See Request for Review at 2. In this regard, a counselor with a master's degree in Social Work, who counseled the Individual during a three month period following his most recent hospitalization through March 1995, testified that it is "not unusual for patients who take any . . . medication for any kind of mood disorder" to pull back from taking the medication. Trans. at 22 and 27. Also, the Individual's psychiatrist testified that "the potential for [ceasing medication] to happen again has to be considered as a possibility." Trans. at 78-79 In any case, it is not possible to entirely resolve this question of future actions -- and even if possible, such a resolution would not necessarily alter the DOE psychiatrist's opinion:

[T]he subject has capability for reasonably good judgement and reliability unless medication is discontinued or an emotional crisis develops in which the subject feels loss of support from the spouse. If both were to happen at the same time, the subject's judgement and reliability would most likely be in jeopardy. Then with values and attitudes altered, behaviors could be out of control, and the result could be a significant defect in judgement and reliability. This means that the key elements to predictable behavior of the subject are the spouse and continued and proper use of psychotropic medications.

Letter from the DOE psychiatrist at 5 (August 2, 1995) (emphasis supplied).

Thus, the continuation of medication is only one relevant factor in the DOE psychiatrist's diagnosis, the Individual's relationship with his spouse being another. The DOE psychiatrist also points to other factors, like "job availability and security" that may cause "emotional distress and have a negative affect." Id. at 6. And in his testimony, the DOE psychiatrist stated that the Individual "is subject to a major depressive disorder if he is exposed to such things as rejection or feelings of insecurity, like job security, or that he is not performing well or he's not doing what is expected of him." Trans. at 39. In other words, the DOE psychiatrist believes that the Individual could continue to take medication and still develop an emotional crisis. Weighing all of these factors together, I must conclude that the renewed assurance by the Individual that he will continue his regimen of medication is not sufficient to offset the DOE psychiatrist's view and to set aside this aspect of the Hearing Officer Opinion.

The Request for Review states that the two psychiatrists disagree as to the exact nature of the Individual's medical condition. As was discussed in the Background section, this disagreement is quite limited. My reading of the record shows that the psychiatrist who evaluated the Individual for DOE, and the Individual's psychiatrist who regularly sees and treats him, do not materially disagree in their primary diagnoses. The DOE psychiatrist diagnosed the primary condition as an Axis I bipolar disorder; the Individual's psychiatrist diagnosed Cyclothymia. The Individual's psychiatrist, however, has written and testified that the difference "is a fairly subtle one," that he has no "significant disagreement with [the DOE psychiatrist's] evaluation," and in fact that "a bipolar diagnosis may be in order." Trans. at 74.

The DOE psychiatrist also diagnosed an Axis II personality disorder. The Individual's psychiatrist believes, however, that a lengthy period of observation -- which the DOE psychiatrist did not have -- is necessary to properly make this diagnosis. In addition, the Individual's psychiatrist states that his "personal ongoing experience with [the Individual] has not -- not heavily -- not supported the idea of an Axis II personality disorder diagnosis." Trans. at 76. In fact, both psychiatrists seem to agree on both diagnoses. During the hearing, the Hearing Officer stated: "On the Axis I disorder there is substantial agreement. On the Axis II there is a disagreement that may be a judgment call." The Hearing Officer then asked the Individual's psychiatrist: "Would you say that's true . . .?” He responded: “Yes, that sounds reasonable and is a reasonable assessment.” Trans. at 85. As a result, I do not see a strong or meaningful diagnostic disagreement between the two doctors. More importantly, whatever differences that exist are subsidiary to the more important issue of the psychiatrists' estimation of the Individual's mental condition and whether it fits within the regulatory criteria of 10 C.F.R. Part 710.

The Part 710 criteria require consideration "as to whether granting the Individual 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). This determination of risk, in this case, involves deciding whether the individual has "[a]n illness or mental condition of a nature which, in the opinion of a board-certified psychiatrist, other licensed physician or a clinical psychologist, causes, or may cause, a significant defect in judgment or reliability." 10 C.F.R. § 710.8(h) The existence of such information can, as in this case, generally produce an unfavorable response to a request for personal security access authorization. Practically unique among the criteria listed in Part 710.8 is the hypothetical language of subsection (h): "may cause, a significant defect in judgment or reliability." (emphasis supplied) This requires prognostication as to an individual's potential future actions. Towards the resolution of this difficult, subjective determination, I am guided in this case by the informed, expert opinions of the two psychiatrists. My reading of the record leads me to conclude that both psychiatrists believe that another extreme mood fluctuation is likely.

The DOE psychiatrist's judgement on this issue, as set forth in his August 2, 1995 letter, is clear: "[M]y opinion is . . . that the subject has a mental condition that may cause a significant defect in judgement and reliability under distressful emotional conditions." August 2, 1995 letter at 5. In his testimony, the DOE psychiatrist stated that with the bipolar disorder, a major depressive disorder of the sort that twice hospitalized the individual could again occur, and that "[s]tatistically . . . if you've had one depression you are going to have another one sometime." Trans. at 39-40.

In his testimony, the Individual's psychiatrist is more sanguine in his views. He points out that before coming to him for treatment, the Individual led a "very productive life in spite of having the problem over time." Trans. at 81. The Individual's psychiatrist also states that the Individual has not "had major problems with the disorder since he's been in active treatment." Id. At the same time, the Individual's psychiatrist testified that:

It's far from an exact science to ensure that [a person under medication will not experience another bipolar related disorder]. People with bipolar disorder or cyclothymia can clearly remain at risk for mood instability problems. Probably the best predicture [sic] of the future is what's happened in the past. [The Individual] has had, in my opinion, a clear response to treatment. He's been really very stable while in treatment. There have been mood fluctuations primarily towards the depression side, but really -- but clearly the extreme fluctuations essentially have not occurred since he's been in treatment.

. . .

And can I tell you that won't happen in the future? I can't tell you that . . . there's a very good chance that won't be a significant problem in the future.

. . .

Unfortunately I can't guarantee that.

Trans. at 82-3.

In weighing the question of whether the Individual might experience another mood instability episode in the future, I emphasize that the Individual's psychiatrist is not making an evaluation of the Individual's eligibility for a security clearance. That is not his job. The Individual's psychiatrist is merely stating that "[t]here's a very -- there's a good chance that [extreme mood fluctuations] won't be a significant problem in the future." Trans. at 83 (emphasis supplied). The converse is also true -- that in his opinion there is some chance that extreme fluctuations will recur.

Under these circumstances, and acknowledging that we are in the area of estimating a future risk, I believe that both psychiatrists agree that the Individual has a medical condition requiring treatment. The impact of their testimony is that they both believe that external manifestations of the condition may reoccur. I therefore find that there exists a mental condition which may cause the Individual to experience a significant defect in judgement or reliability.

V. CONCLUSION

On the basis of all of the factual material in the record and considerations set forth above, in the serious context of whether to allow a person a national security clearance, I conclude that this record supports the Hearing Officer's April 22, 1996 Opinion. Accordingly, I agree that access authorization should not be granted to the Individual.

The regulations specify that the Director, Office of Security Affairs, will make a final determination regarding an 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. 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).

George B. Breznay

Director

Office of Hearings and Appeals

Date:September 15, 1997

(1)*/ Under Section § 710.7(c), such mitigating factors would include “the nature, extent and seriousness of the conduct; the circumstances surrounding the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the age and maturity of the individual at the time of the conduct; the voluntariness of participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct; the potential for pressure, coercion, exploitation, or duress; [and] the likelihood of continuation or recurrence . . . .”