Case No. VSA-0205 (OHA March 8, 1999)

For full history of this case, and links to other cases, click here.

* 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.

March 8, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: November 16, 1998

Case Number: VSA-0205

In this Opinion, I consider a Request for Review filed by XXXXXXXXXXX (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 October 1, 1998, 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-0205), 27 DOE ¶ 82,776 (1998) (October 1 Opinion). On November 2, 1998, the individual filed a Request for Review of the Hearing Officer's Opinion pursuant to 10 C.F.R. § 710.28. On November 16, 1998, 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 January 21, 1999. In this Opinion I will address the matters raised in the Statement of Issues.

I. Background

The individual is employed at a DOE facility. Because information was provided to the local DOE Security Office that raised security concerns, a reinvestigation of the individual was conducted in 1997. As a part of this reinvestigation, a DOE Personnel Security Specialist interviewed the individual in May and August 1997. After these Personnel Security Interviews (PSIs), the local Security Office referred the individual to a board-certified psychiatrist (hereinafter referred to as “the DOE psychiatrist”), for an agency-sponsored psychiatric evaluation. The DOE psychiatrist evaluated the individual and provided a written report to the Security Office.

After reviewing the results of this reinvestigation, the Director of the DOE facility determined that derogatory information existed which cast into doubt the individual’s suitability for continued access authorization. The Director informed the individual of this determination in a letter which set forth in detail the DOE’s security concerns and the reasons for those concerns. I will hereinafter refer to this letter as the Notification Letter.

The derogatory information set forth in the Notification Letter pertains to paragraphs (f), (h) and (l) of the criteria for determining eligibility for access to classified matter or special nuclear material set forth at 10 C.F.R. § 710.8. For purposes of clarity, I will first describe the security concerns set forth under criterion (l). That criterion defines as derogatory information indicating that the individual has “[e]ngaged in any unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable, or trustworthy; or which furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress which may cause the individual to act contrary to the best interests of the national security. Such conduct or circumstances include, but are not limited to, criminal behavior, a pattern of financial irresponsibility, or violation of any commitment or promise upon which DOE previously relied to favorably resolve an issue of access authorization eligibility.” With regard to this criterion, the Letter states that the individual attempted suicide twice during a two week period in March 1997. In his May 1997 PSI, the individual said that on March 13, 1997 he placed a loaded gun to his head and pulled the trigger. After the gun misfired, he placed it in his belt, left his house without saying anything to his wife, drove to a secluded location, and remained there for several hours, thinking about his marriage. According to medical records subsequently obtained by the local security office, the individual had also attempted to take his own life ten days to two weeks prior to this event. On this occasion, the individual took an overdose of Lortab, a prescription medication.

The Letter points out that during the August 1997 PSI, the individual stated that he had been feeling depressed for about a year before the suicide attempts. He described a lack of sleep, appetite and weight loss, unexplainable emotions and frequent arguments with his wife during this period. He also made statements to his wife and friends to the effect that his family would be better off without him, and that perhaps he should have an "accident" so that they wouldn't have to worry about him anymore. During the May 1997 PSI, the individual indicated that prior to the suicide attempts he voluntarily sought treatment for depression at a local facility. However, because he did not believe the facility's employees to be properly qualified, he did not actively pursue the prescribed therapy.

The Letter also cites statements that the individual made during the two PSIs to the effect that he has, periodically, struck or pushed his wife. The individual stated that he would sometimes push his wife away in order to withdraw from an argument, and that she has, on more than one occasion, fallen as a result of this action. He further indicated that he had slapped his wife with an open hand on at least two occasions.

In addition, the Letter sets forth allegations that the individual has made a number of false or misleading statements concerning his mental and emotional state and his suicide attempts. In his report to the local security office, the DOE psychiatrist indicated that the individual minimized his emotional and domestic problems, and did not provide honest and accurate answers. Moreover, according to medical records obtained by the security office, the individual's wife stated that during the second suicide attempt, the individual asked her to pull the trigger, and that after he left the house with the gun, she feared that he was going to attempt suicide again. This account contradicts statements that the individual made during the May 1997 PSI, during which he said that he did not say anything to his wife before he left the house. He also stated that he did not intend to frighten his wife by leaving the house with the gun, and that he did not think that she would be concerned. In the August 1997 PSI, the individual claimed that he was not attempting suicide when he took the overdose of Lortab, but was instead attempting to go to sleep. However, he had previously been reviewing his insurance coverage to determine whether his family would be taken care of in the event of his death, and had determined that they would, in fact, be financially secure. The Letter concludes that these acts and statements constitute unusual conduct that calls into question the individual's honesty and reliability, and which furnishes reason to believe that he may be subject to pressure, coercion or duress as those terms are used in criterion (l).

Criterion (f) pertains to information indicating that the individual has "deliberately misrepresented, falsified, or omitted significant information from a . . . personnel security interview, . . . or proceedings conducted pursuant to § 710.20 through § 710.31." Under this criterion, the Letter cites inconsistencies between the individual's accounts of his second alleged suicide attempt given in his two PSIs. As previously mentioned, during the May 1997 PSI, the individual said that after the gun failed to discharge, he placed it under his belt and walked out of the house without saying anything. However, in his August 1997 PSI, the individual stated that as he was heading out the door with the gun, his wife told him that he did not have the guts to end his own life. He then stopped, told her to watch, placed the gun to his head, pulled back the hammer, and pulled the trigger. He indicated that he intended for his wife to witness these actions, and that when the gun misfired, he tried to hand it to her, but she would not take it. He then left with the gun.

The Letter also refers to the individual's statements in the May 1997 PSI that he had not threatened suicide before this incident, and that his medical records would not contain any pertinent information other than what was discussed during that interview. However, those records contained information about the Lortab incident described above. The Letter goes on to cite the individual's statements in the August 1997 PSI concerning this incident as further examples of falsification or misrepresentation.

Finally, the Letter sets forth the DOE's security concerns under criterion (h). That criterion defines as derogatory information indicating that the individual has "an illness or mental condition of a nature which, in the opinion of a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist, causes, or may cause, a significant defect in judgement or reliability." The DOE psychiatrist evaluated the individual as suffering from Mood Disorder with Major Depressive Episodes and Mixed Personality Disorder with Paranoid, Antisocial and Histrionic Traits. The DOE psychiatrist concluded that these disorders cause, or could cause, a significant defect in judgement or reliability within the meaning of criterion (h).

At the request of the individual, a hearing was convened. A personnel security specialist and the DOE psychiatrist testified on behalf of the DOE. The individual testified in his own behalf and called his wife, a psychiatrist (hereinafter referred to as "the evaluating psychiatrist), an Employee Assistance Program (EAP) counselor, the individual's supervisor, a friend of the individual's wife, and an associate as additional witnesses.

II. Hearing Officer's Opinion

At the outset, the Hearing Officer noted that although there was some disagreement between the parties as to the exact nature of the individual's diagnosis, it was agreed that during the month of the suicide attempts, the individual was suffering from significant psychiatric problems. It was further agreed that the symptoms of the individual's condition included depression, uncontrollable anger, violence toward his wife, and an inability to honestly discuss his problems. Therefore, instead of challenging the factual bases underlying the security concerns set forth in the Letter, the individual focused on his rehabilitative efforts, in an attempt to show that he no longer suffers from these problems. However, after reviewing the record as a whole, the Hearing Officer concluded that the individual had failed to demonstrate adequate rehabilitation. This conclusion was based primarily on the Hearing Officer's judgement as to the relative credibility of the testimony of the evaluating psychiatrist, the EAP counselor, the individual himself, and the DOE psychiatrist. October 1 Opinion at 10.

The evaluating psychiatrist testified that the individual was rehabilitated. According to the Hearing Officer, this conclusion was based on two determinations: (i) that the individual had taken the proper dosage of his prescribed medications for an extended

period of time and would continue to do so; and (ii) that the EAP counselor's meetings with the individual had helped him deal with the day-to-day problems that had caused stress and exacerbated his erratic behavior.

The Hearing Officer found that the evaluating psychiatrist's first determination was based on information obtained during four 20 minute meetings with the individual over a 16 month period of time. During these meetings, which occurred on an as needed basis and were scheduled by the individual, the evaluating psychiatrist focused on the levels of the individual's medications. The individual self-reported his condition, and the Hearing Officer observed that there was no apparent effort by the evaluating psychiatrist to spend sufficient time with the individual to evaluate whether those reports were accurate. Consequently, because of his limited contact with the individual, the Hearing Officer did not believe that the evaluating psychiatrist was able to accurately determine the manner in which the individual was coping with day- to-day stress, or to predict with any degree of certainty that the individual would continue to take his medications.

The Hearing Officer found the evaluating psychiatrist's reliance on the EAP counselor's sessions to be similarly misplaced. The evaluating psychiatrist's knowledge of those sessions came solely from the individual's descriptions of them. However, the Hearing Officer found that the individual did not accurately describe the extent of this counseling. The individual had only three sessions with the counselor over a 16 month period. However, the evaluating psychiatrist's testimony referred to the individual's reports of regular follow-up meetings with the EAP counselor. The evaluating psychiatrist's notes also contain references to regular sessions with the EAP counselor. The Hearing Officer concluded that three sessions over a 16 month period did not constitute "regular" follow-up sessions, especially in a case where the patient had apparently attempted suicide on two occasions. Since the evaluating psychiatrist was under the impression that there were more counseling sessions than actually occurred, the Hearing Officer determined that the second basis for his opinion was not well founded.

The Hearing Officer also found it significant that the evaluating psychiatrist's opinion was not based on a current psychiatric evaluation. His initial evaluation of the individual occurred 17 months prior to the hearing, and he had only limited contact with the individual after that date. The Hearing Officer opined that a reevaluation of the individual might have provided a significantly revised prognosis. He concluded that the evaluating psychiatrist's opinion regarding rehabilitation is not convincing because there was no recent psychiatric examination to support his findings.

The EAP counselor also testified that the individual is rehabilitated. He based his opinion on the belief that the individual is pursuing an appropriate course of recovery, and that if he maintains his current pattern of drug therapy, he will not encounter significant further difficulties. However, the Hearing Officer stated that because of his limited contact with the individual, the counselor did not appear to know him very well. For example, the counselor indicated that the individual had recently received counseling through a church. However, there were only two counseling sessions at the church, and those sessions occurred several years prior to the suicide attempts. Hearing Transcript (Tr.) at 145, 165. Accordingly, the Hearing Officer attributed very little weight to the counselor's opinion.

The Hearing Officer then evaluated the testimony of the individual, a former co- worker, the individual's wife, and her best friend regarding the individual's current behavior. He concluded that although he was convinced of positive changes in the individual's behavior at work, the individual's lack of candor regarding his rehabilitation efforts and his past behavior led him to believe that the individual is not rehabilitated. The individual testified that he and his wife had developed skills to avoid the marital stresses that contributed to the individual's psychiatric problems by reading books and pamphlets provided to them by the EAP counselor and an outpatient consulting program. His wife testified that they "went through [the pamphlets] every single day discussing" the concepts. Tr. at 130. Their testimony also indicated that they spent a great deal of time doing exercises suggested by the pamphlets, and that the skills gained through the reading and the exercises have allowed the individual to change his behavior. However, the Hearing Officer found the testimony regarding the nature of this home study work to be very general. The actual work that they did was not produced, and there was no testimony as to the number, names, or content of the books and pamphlets. Because of the limited amount of detail that they were willing to provide, the Hearing Officer concluded that the individual and his wife had not been candid and forthright in describing the nature and extent of their home study efforts.

The Hearing Officer noted a similar lack of candor in the individual's responses to questions concerning his past workmen's compensation claims and the circumstances surrounding his overdose of Lortab. Specifically, he found that the individual attempted to avoid discussing the compensation claims, and minimized or rationalized his behavior regarding the first alleged suicide attempt. Tr. at 171, 173-77.

The Hearing Officer also expressed skepticism regarding the testimony of the individual's wife concerning his domestic behavior, concluding that her testimony was very general in nature. She had testified that his behavior at home was greatly improved, and that he was now able to control his temper. Tr. at 131. The Hearing officer pointed out that there were others, such as the individual's two grown children, who could have provided corroborating testimony concerning the individual's day to day behavior but were not called as witnesses.

In contrast, the Hearing Officer found the DOE psychiatrist's testimony to be persuasive. In particular, the Hearing Officer agreed with the DOE psychiatrist's statement that the individual "needs some marital therapy, or I think some of the past stresses and disagreements are going to resurface again . . . " Tr. at 119. Such therapy was also suggested by the evaluating psychiatrist and the EAP counselor, and the individual's failure to obtain marital counseling or to openly admit this failure led the Hearing Officer to find that the individual has not been fully committed to his rehabilitation program. The Hearing Officer also found convincing the DOE psychiatrist's testimony that after 35 years of a dysfunctional lifestyle, the individual could not be expected to completely change in such a relatively short time. Tr. at 122. In this regard, the Hearing Officer stated:

I found this testimony to be very strong. Seventeen months ago the individual had a serious mental condition that was characterized by two suicide attempts and violence toward his wife. I agree with the DOE consulting psychiatrist's opinion that the individual's activities in the seventeen months since his diagnosis have been insufficient to indicate that the individual has reached a level of rehabilitation at which it is highly likely that he will be able to control his behavior in the future.

October 1 Opinion at 16.

Finally, the Hearing Officer noted that the individual had not directly addressed the DOE's security concerns relating to criteria (f) and (l), apparently believing that if he showed rehabilitation from his mental condition, the DOE would no longer consider those to be independent security concerns. However, since the Hearing Officer could not conclude that the individual had shown rehabilitation with regard to his mental condition, he was unable to find that the individual had sufficiently mitigated the DOE's concerns under criteria (f) and (l). The Hearing Officer therefore concluded that the individual's clearance should not be restored.

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, he contends that the Hearing Officer denied him the opportunity of supporting his eligibility for access authorization by (i) improperly limiting the number of character witnesses that the individual could have testify, and (ii) permitting the DOE psychiatrist to remain in the hearing room after the evaluating psychiatrist and the EAP counselor had been excused. The individual requests that I recommend restoration of his clearance, or, in the alternative, that I determine that procedural irregularities occurred during his hearing that denied him the opportunity to fully respond to the concerns set forth in the Notification Letter.

With regard to his first contention, the individual claims that in two prehearing telephone conversations, the Hearing Officer instructed him to eliminate from his presentation duplicative testimony from friends, co-workers and family that "he (the individual) is a good guy," or that he "is a changed man." Statement of Issues at 2 (quoting the Hearing Officer). The individual contends that pursuant to these instructions, he removed the names of his son and daughter from his witness list. As previously discussed, the Hearing Officer found the individual's wife's testimony about his behavior at home to be unconvincing, stating that " . . . there were others who could have provided detailed corroborating testimony . . . [who] were not called by [the individual] as witnesses. These witnesses include two of [his] adult children." October 1 Opinion at 14. The individual argues that the Hearing Officer's instructions to limit the number of character witnesses therefore denied him the opportunity to support his eligibility for a security clearance.

I do not agree with this contention. As an initial matter, neither the telephone memoranda of the prehearing conversations, nor the letters from the Hearing Officer to the individual and the DOE Counsel confirming the substance of those conversations, reflect any attempt by the Hearing Officer to restrict the number of character witnesses. In fact, in the Hearing Officer's letter to the individual dated July 1, 1998, in which the Hearing Officer summarized the previous day's prehearing telephone conference, he stated that "[i]f part of the rehabilitation argument is that there is currently no marital violence, you should consider calling . . . corroborating witnesses [in addition to the individual and his wife]." Moreover, the record indicates that the individual apparently heeded this advice. In a letter to the Hearing Officer dated August 14, 1998, the individual informed the Hearing Officer that he intended to call a friend of the individual's wife as an additional character witness. At the hearing, this witness favorably compared the individual's recent domestic behavior with his behavior prior to receiving treatment. It therefore appears that the individual's removal of his son's and daughter's names from the witness list was his decision, and was not done at the behest of the Hearing Officer.

Furthermore, even if I were to assume that the Hearing Officer instructed the individual to eliminate duplicative testimony, such an act would be within the scope of the Hearing Officer's discretion under the DOE's Personnel Security Regulations. Those regulations state, in pertinent part, that a Hearing Officer may exclude "evidence which is incompetent, immaterial, irrelevant, or unduly repetitious." 10 C.F.R. § 710.26(h).

Finally, I find that the Hearing Officer would almost certainly have not recommended restoration of the individual's clearance even had the individual's son and daughter testified. As indicated by the Hearing Officer, this testimony might have corroborated the wife's statements that the individual has learned to control his temper at home. October 1 Opinion at 14. Although the wife's testimony was certainly relevant, it was not considered dispositive by the Hearing Officer. His recommendation was based primarily on his judgement as to the credibility of the DOE psychiatrist, the evaluating psychiatrist, the EAP counselor, and the individual himself. October 1 Opinion at 10. Simply put, there were a number of other, more important factors that led the Hearing Officer to recommend that the individual's clearance not be restored, including his lack of candor regarding the suicide attempts and his failure to pursue marital counseling.

The individual's contention that the Hearing Officer improperly restricted the number of character witnesses that he could call, thereby denying him an opportunity to support his eligibility for access authorization, is without merit. I already considered this claim and rejected it in my January 21, 1999 letter to the individual (January 21 letter). In that letter, I found that the Hearing Officer's alleged restriction of the number of character witnesses was not a procedural irregularity warranting investigation or augmentation of the record.

The second contention in the individual's Statement of Issues concerns the Hearing Officer's decision to allow the DOE psychiatrist to participate in the hearing after the evaluating psychiatrist and EAP counselor had been excused. During the hearing, expert testimony was taken in a panel format, with each side's witnesses testifying in the presence of the others. After their respective testimonies, the individual requested that the evaluating psychiatrist and the EAP counselor be excused, and the Hearing Officer granted these requests. However, the DOE psychiatrist remained in the hearing room, and commented on the testimony of later witnesses. The individual argues that because his witnesses were not present to rebut the DOE psychiatrist's comments, he was not afforded an opportunity to fully support his eligibility for access authorization.

I also find this contention to be without merit. At the outset, I note that the record indicates that the individual agreed to the DOE psychiatrist's presence in the hearing room during the entire hearing. In the July 1, 1998 letter from the Hearing Officer to the individual, the Hearing Officer stated that during the previous day's prehearing telephone conference, "[w]e agreed that [the DOE psychiatrist] would remain for the entire hearing and would be available for further questioning as the hearing progresses." The individual has not contested the accuracy of this statement. I cannot find that an arrangement that is often used in hearings of this nature, and that was previously agreed to by all parties, constituted an abuse of the Hearing Officer's discretion. Moreover, I disagree with the individual's claim that this arrangement denied him an opportunity to fully present mitigating evidence. In this regard, I must again note that the evaluating psychiatrist and the EAP counselor were excused at the individual's request, and at that time he knew, or should have known, that the DOE psychiatrist would continue to participate in the hearing. In addition, the record indicates that the individual's witnesses testified extensively concerning all relevant aspects of the individual's rehabilitation. Finally, the Hearing Officer allowed the individual the option of having the evaluating psychiatrist review the transcript of testimony taken after his departure and submit comments on that testimony. Tr. at 201. The individual chose not to pursue this option. For these reasons, I conclude that the Hearing Officer did not act improperly by allowing the DOE psychiatrist to participate in the hearing after the individual's witnesses had been excused. I also addressed this issue in my January 21 letter, finding that this decision by the Hearing officer did not constitute a procedural irregularity warranting an investigation. Accordingly, I find the arguments raised in the individual's Statement of Issues to be without merit.

As previously indicated, the Statement of Issues did not directly address the Hearing Officer's findings and the bases for those findings. After a thorough review of the record in this proceeding, I am convinced that the Hearing Officer correctly found that security concerns exist under criteria (f), (h), and (l), and that the individual has failed to present adequate evidence in mitigation of those concerns. In this regard, I am particularly troubled by the individual's continuing lack of candor concerning the suicide attempts and his apparent unwillingness to pursue marital counseling. 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 his access authorization should not be restored.

George B. Breznay

Director

Office of Hearings and Appeals

Date: March 8, 1999