Case No. BSA-0150 (OHA November 17, 1997), 27 DOE ¶ 83,002

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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.

November 17, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: August 28, 1997

Case Number: VSA-0150

This determination considers a Request for Review filed by XXXXXXXX (hereinafter "the individual") concerning his eligibility to retain a Department of Energy (DOE) access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." The individual's access authorization (security clearance) was suspended at the direction of the local security office under the provisions of Part 710. Pursuant to the individual’s request, a hearing was held, and on August 7, 1997, an Office of Hearings and Appeals (OHA) Hearing Officer issued an Opinion recommending that the individual's access authorization not be restored. Personnel Security Hearing (Case No. VSO-0150), 26 DOE ¶ 82,789 (1997) (August 7 Opinion). On August 28, 1997, the individual filed a Request for Review of the Hearing Officer's Opinion pursuant to 10 C.F.R. § 710.28. On September 11, 1997, he filed a Statement of Issues to be reviewed. The DOE's Office of Safeguards and Security (OSS) notified OHA that it would not file a response to the Statement of Issues and I closed the administrative record in this case on October 1, 1997. This Opinion considers the matters raised by the Statement of Issues.

I. Background

The individual is employed at a DOE facility. On XXXXXXXXXXX after being notified that his XXXXXX was critically ill, the individual and his wife drove virtually nonstop from XXXXXXXX to his XXXXXXX

home in XXXXXXXX. Shortly after his arrival, the individual’s XXXXXX died. After spending a week in XXXXXXXX with his XXXXXX, the individual and his wife drove to XXXXXXXXX to visit their eldest daughter. This initiated a sequence of events that led to the individual’s involuntary hospitalization for psychiatric treatment at the XXXXXXXXX in XXXXXXXXX on XXXXXXXXXX. According to the discharge summary prepared by XXXXXXXX personnel based on information provided by the individual’s family, the individual got lost frequently during his trip to XXXXXXXXX, stopped to leave money at various rest stations, and “flagged down” cars and trucks along a highway in XXXXXXXXX to ask the drivers if they needed help. After his arrival in XXXXXXXXX, the individual left his daughter’s house one afternoon, drove to a local shopping center, and remained there until approximately 8:30 that evening, picking up trash and returning shopping carts to their proper locations. Upon the individual’s return to his daughter’s house, he was persuaded by two members of his family to go to the XXXXXXXXX for an examination. He was taken to an examination room to await evaluation. When a member of the XXXXXXXXX staff attempted to enter the room, the individual demanded that he produce identification. When the staffer refused, the individual closed the door and held it shut. XXXXXXXXX employees then pushed the door open, forcibly restrained the individual, and transported him to the hospital’s psychiatric ward. According to the discharge summary, the individual’s speech at this time was “loud, threatening and derailed.” He expressed a belief that the number 77,777 is all- powerful, and he refused to stay in a room that did not have the number 7 or a multiple of that number in it. Discharge Summary at 2.

The individual received treatment and was discharged from the XXXXXXXXX on XXXXXXXXXXXX. An XXXXXXXXX psychiatrist recommended that the individual continue to receive psychiatric treatment on an outpatient basis after his return XXXX. Discharge Summary at 3.

On XXXXXXXXXXXX, the individual was referred by the DOE to a board- certified DOE consultant-psychiatrist (DOE psychiatrist) for a mental health evaluation. On the basis of this examination and a review of the individual’s employment and psychiatric records, the DOE psychiatrist concluded that the individual suffered from bipolar and paranoid personality disorders, and that these conditions were causing and might continue to cause a significant defect in his judgement and reliability within the meaning of 10 C.F.R. § 710.8(h) (Criterion H). The DOE psychiatrist recommended that the individual be placed on mood stabilizing medication, and that he receive ongoing counseling.

Based on this evaluation, the individual’s access authorization was suspended and an administrative review proceeding was initiated pursuant to 10 C.F.R. § 710.9. This proceeding was commenced by the issuance of a letter notifying the individual that information possessed by the DOE created a substantial doubt concerning his continued eligibility for access authorization (notification letter). According to the letter, this information indicated that the individual has “[a]n illness or mental condition of a nature which, in the opinion of a board-certified psychiatrist . . . causes, or may cause, a significant defect in judgement or reliability.” Notification letter enclosure at 1 (citing Criterion H).

At the request of the individual, a hearing was convened. The individual testified in his own behalf and called his wife as a witness. The DOE presented two witnesses: a personnel security specialist and the DOE psychiatrist.

II. Hearing Officer's Opinion

In his opinion, the Hearing Officer found that at the time that the individual was examined by the DOE psychiatrist, he was “in an acute manic phase that was symptomatic of a bipolar disorder.” August 7 Opinion at 85,774. He based this finding on the psychiatrist’s written report and on his testimony at the hearing. The Hearing Officer also noted that the individual was diagnosed with a paranoid personality disorder. Accordingly, the Hearing Officer concluded that because the individual had been diagnosed with a mental condition which, in the opinion of a board-certified psychiatrist, causes or could cause a serious defect in the individual’s judgement and reliability, the DOE acted properly in suspending his security clearance.

Next, the Hearing Officer addressed the issue of whether there was sufficient mitigating evidence to allay the serious security concerns raised by the individual’s mental condition. In this regard, the Hearing Officer found certain aspects of the DOE psychiatrist’s testimony to have significant mitigating value. Specifically, the psychiatrist testified that the individual’s bipolar disorder is no longer in an active state, and that his paranoid personality traits, while worrisome, are not by themselves enough to cause a significant defect in the individual’s judgement and reliability. Id. (citing transcript at 194, 197, 244). However, the psychiatrist also stated that the individual could suffer a relapse of his bipolar disorder, especially if he was subjected to severe stress, Tr. at 244, and that such a relapse would again result in a severe impairment of his judgement and reliability. Tr. at 195. The psychiatrist also testified that although the individual has a biological predisposition to manic episodes, the likelihood of recurrence is unclear. Tr. at 139, 195 and 197.

After weighing this testimony and the other evidence in the record, the Hearing Officer concluded that there was insufficient mitigating evidence to warrant the restoration of the individual’s security clearance. As an initial matter, the Hearing Officer found there to be a significant risk of a relapse, and that this risk is exacerbated by the individual’s paranoid personality. The Hearing Officer stated that the individual is either unwilling or unable to recognize that he is at risk of having additional manic episodes, and has refused to take mood-stabilizing medication or to seek psychiatric counseling. Such a recurrence, the Hearing Officer found, would cause a severe defect in his judgement and reliability. In addition, the Hearing Officer expressed grave misgivings about the individual’s current judgement and reliability. In this regard, the Hearing Officer again cited the individual’s refusal to acknowledge his condition or accept treatment. The Hearing Officer also referred to portions of the individual’s testimony at the hearing that the Hearing Officer considered to be unusual:

At the hearing, the individual repeatedly claimed that he “was given drugs of unknown or experimental quality by the XXXXXXXXX staff. (Tr. At 207, 223-225). He further claimed he was given the experimental drugs because he “was an ideal guinea pig.” (Tr. At 223). The individual even tried to explain an incident during his hospitalization in which he barricaded himself and two hostages in a lounge area by claiming both that he was under the influence of “experimental drugs” and by claiming that he was responding to intentional harassment by the XXXXXXXXX staff. (Tr. At 224 (“their objective seemed [to be] to upset you. Keep you upset, on the ragged edge and they were seeing how this medicine would affect you. That’s why I think it was experimental.”)) For these reasons, I harbor grave doubts about the individual’s rationality and judgement.

Hearing Officer’s Opinion at 5-6, August 7 Opinion at 85,776.

III. Analysis

A. Standard of Review

Part 710 provides that if, after considering all factors in light of the relevant criteria, the OHA Director is of the opinion that it will not endanger the common defense and security and will be clearly consistent with the national interest to grant or continue access authorization to an individual, he shall render an opinion favorable to the individual; otherwise, he shall render an opinion adverse to the individual. 10 C.F.R. § 710.28(d). As discussed below, after reviewing the record in this case, I cannot conclude that it would be clearly consistent with the national interest to restore the individual’s access authorization.

As a general rule, I will not set aside findings of fact made by a Hearing Officer in these types of cases unless they are clearly erroneous. Personnel Security Review (Case No. VSA-0087, 26 DOE ¶ 83,001 at 86,504-05 (1996); see also Oglesbee v. Westinghouse Hanford Co., 25 DOE ¶ 87,501 (1995). 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. Personnel Security Review (Case No. VSA-0049), 25 DOE ¶ 83,002 at 86,512 (1995). Therefore, I will not ordinarily substitute my judgement for that of a Hearing Officer in such matters.

B. Statement of Issues

In his Statement of Issues, the individual does not directly address the Hearing Officer’s findings. Instead, the individual contends that a state anti-discrimination law bars the DOE from revoking his clearance. The individual also takes issue with certain testimony given at the hearing by the DOE psychiatrist concerning the incidents that led to the individual’s hospitalization in XXXXXXXX, and concerning his behavior in the XXXXXXXXX.(1) Specifically, the individual denies that he “flagged down” cars and trucks along a highway in XXXXXXXXX. In addition, he contends that his actions in cleaning up the parking lot were not disruptive of the activities at the shopping center and that his actions during the time he was at the XXXXXXXXX were not symptomatic of any mental illness, but were instead reasonable responses to unprofessional and dangerous behavior by the XXXXXXXXX staff.

As an initial matter, I note that the Hearing Officer’s findings were based primarily on the DOE psychiatrist’s evaluation and on the testimony given at the hearing, not on the details of any one incident that may have led to the individual’s hospitalization. The individual’s arguments in this regard are therefore largely unresponsive to the concerns discussed in the Hearing Officer’s Opinion. To be sure, the DOE psychiatrist’s evaluation was based in part on the events that occurred before and during the individual’s hospitalization. However, to the extent that the individual’s factual arguments are relevant, he has failed to produce any convincing evidence to support them. Cf. Personnel Security Review, (Case No. VSA-0088, 26 DOE ¶ 83,003 at 86,516-17 (1996)) (burden of proof on individual to support his eligibility for access authorization). In particular, the record does not support the individual’s contention that he was treated in an inappropriate or unprofessional manner by the XXXXXXXXX staff. I simply cannot find that an entire medical facility persecuted him, based wholly on his undocumented assertions. The individual’s arguments concerning incidents that occurred before and during his hospitalization are therefore without merit.

The individual also contends that 27 XXXXX § 10-115 prohibits the DOE from revoking his clearance. That statute states, in pertinent part, that:

[n]o person who has received evaluation or treatment under any provisions of this article shall be discriminated against because of such status. For purposes of this section, “discrimination” means giving any undue weight to the fact of hospitalization or outpatient care and treatment unrelated to a person’s present capacity to meet standards applicable to all persons.

27 XXXXX § 10-115. The article of which this provision is a part concerns the care and treatment of mental patients in XXXXXXXXX mental health facilities.

Even if I were to assume that a state statute could prevent a federal personnel security proceeding from going forward, I could not conclude that this statute prohibits the DOE from revoking the individual’s access authorization. As an initial matter, the statute is only applicable to patients who are evaluated or treated at XXXXXXXXX mental health facilities. As previously stated, the individual was hospitalized in XXXXXXXXX, and has not received an evaluation or treatment at a XXXXXXXXX facility. Furthermore, the DOE’s review of the individual’s continued eligibility for access authorization does not constitute “discrimination” within the meaning of § 10-115. The DOE has not given “undue weight to the fact of hospitalization...unrelated to [the individual’s] present capacity” to meet standards applicable to all clearance holders. The DOE psychiatrist ’s evaluation was expressly based on whether, at the time of the evaluation, the individual had “an illness which causes...a significant defect in judgement or reliability within the meaning of” Criterion H. Psychiatric evaluation at 10. Although the records of the individual’s hospitalization were a factor in making the evaluation, the psychiatrist also considered the individual’s employment history, the results of an earlier Personnel Security Interview conducted with the individual, and the individual’s responses, behavior and demeanor during the evaluation itself. Thus, the fact that he was hospitalized was not the focus of the proceeding or even a controlling factor.

Similarly, the Hearing Officer’s Opinion was not based on the fact of the individual’s hospitalization. Instead, the Officer’s recommendation that the individual’s clearance not be restored was based on his finding that there was an unacceptable risk of relapse, and on his assessment of the individual’s judgement and reliability at the time of the hearing. I find that there is substantial evidence in the record in support of the Hearing Officer’s findings. As an initial matter, the individual has refused to accept ongoing psychiatric treatment despite the recommendations of the XXXXXXXXX and DOE psychiatrists. According to the DOE psychiatrist, the individual’s unwillingness to accept treatment increases the risk of a relapse. Tr. at 158-159. Furthermore, according to the DOE psychiatrist, if the individual did experience the onset of another manic episode, his paranoid personnality would prevent him from seeking psychiatric treatment in an expeditious manner. Tr. at 158-159. The individual does not believe that he is, or has been, mentally ill. Tr. at 193, 209-210. It is therefore unlikely that he would recognize the symptoms of another manic episode. Even if he did recognize the onset of another manic episode, his extreme distrust of the psychiatric profession would make him reluctant to seek treatment. Moreover, I agree with the Hearing Officer that the individual’s refusal to accept treatment, and portions of his testimony at the hearing cast considerable doubt on the individual’s current judgement and reliability. Indeed, the individual’s Statement of Issues contains similar allegations concerning his treatment at the XXXXXXXXX. Specifically, the individual said that “[t]he hospital situation was very dangerous...because of the unprofessional behavior of the staff at entry, my life was in fact in great danger....” Statement of Issues at 2. In referring to the incident in which he held the examination room door closed and was then forcibly restrained, the individual said that “[I] looked on in terror as these people stormed into the room.” Id. Without supporting evidence, these statements by the individual are not credible and lead me to believe that his grasp of reality is infirm. In turn, I agree with the Hearing Officer that his judgement and reliability are questionable. For the reasons set forth above, I therefore conclude that the arguments in the individual’s Statement of Issues are without merit.

IV. Conclusion

I have thoroughly reviewed the record in this proceeding, including the Hearing Officer’s Opinion and the individual’s Statement of Issues. 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). I conclude that the Hearing Officer properly found that security concerns existed with respect to this individual under Criterion H. Moreover, I find that there is insufficient evidence of mitigating factors to restore the individual's security clearance. For the reasons explained above, I find that the individual has not furnished evidence that restoration of his clearance would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27 (a). Accordingly, it is my opinion that access authorization should not be restored.

George B. Breznay

Director

Office of Hearings and Appeals

Date: November 17, 1997

(1)This testimony was based on medical records obtained from XXXXXXXXX.