Case No. VSO-0142, 26 DOE ¶ 82,791 (H.O. F. Brown August 14, 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.

August 14, 1997

DECISION AND ORDER

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Hearing

Date of Filing: March 7, 1997

Case Number: VSO-0142

This Opinion concerns the eligibility of XXXXXXXXXXXX (hereinafter referred to as "the individual") to hold an 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."(1) A Department of Energy Operations Office (DOE) suspended the individual's access authorization under the provisions of Part 710. This Opinion considers whether, on the basis of the evidence and testimony presented in this proceeding, the individual's access authorization should be restored. As set forth in this Opinion, I have determined that the individual's security clearance should not be restored.

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 contractors, agents, DOE access permittees, 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).

In this instance, the DOE granted the individual an access authorization, an "L" clearance, as a condition of his employment with a DOE contractor. However, on November 23, 1996, DOE informed the individual that his access authorization had been suspended based upon information in the possession of the DOE that created substantial doubt concerning his continued eligibility. Then, on January 23, 1997, DOE issued a Notification Letter to the individual which specified the derogatory information in support of its determination. That information is set forth in Enclosure (1), "Statement of Charges," accompanying the Notification Letter, and is summarized below.

Enclosure (1) of the Notification Letter states that the derogatory information regarding the individual falls within the purview of potentially disqualifying criteria set forth in 10 C.F.R. § 710.8, on two grounds, subsections 710.8(h) and (l). First, the Statement of Charges alleges that 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 licensed clinical psychologist, causes, or may cause, a significant defect in judgment or reliability." 10 C.F.R. § 710.8(h). In this regard, the Statement of Charges specifies that pursuant to a Personnel Security Interview (PSI), the individual was referred to Dr. XXXXXXXXXX, a DOE consultant psychiatrist (DOE Psychiatrist), who performed a psychiatric evaluation of the individual. In his report of this evaluation rendered to DOE, the DOE Psychiatrist diagnosed the individual with a composite of psychiatric conditions, including Depressive Disorder, Somatoform Disorder, Mixed Personality Disorder, as well as Psychosocial and Environmental Problems. Ultimately, the DOE Psychiatrist determined on the basis of his diagnosis that the individual has a mental condition which may cause a significant defect in his judgment and reliability. Behavioral manifestations of the individual's mental condition, that are discussed in the psychiatric report in support

of the DOE Psychiatrist's diagnosis, are described in the Statement of Charges under Section 710.8(l).

The DOE invokes 10 C.F.R. § 710.8(l) on the basis of its finding that the individual has "[e]ngaged in [] unusual conduct or is subject to 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." In this regard, the Statement of Charges specifies, in summary, that during the PSI, the individual stated that he was prescribed medication for depression following an incident in which he threatened to kill himself in front of his wife, but then several months later voluntarily discontinued the medication and once again contemplated suicide, sitting for approximately one hour with a gun in front of him. During the latter incident, the individual reported that he "blacked out," drove to his friend's house where he appeared in a hysterical manner and then, after the friend called for police assistance, the individual voluntarily admitted himself to a mental health clinic for five days of counseling and treatment. The individual further indicated during the PSI that he was again placed on anti-depressant medication and following his release from the mental health clinic he suffered instances of anxiety attacks. Notwithstanding, the individual informed the DOE Psychiatrist during his psychiatric evaluation that he was no longer taking medication or seeking counseling.

In a letter forwarded to the DOE Office of Hearings and Appeals (OHA) on March 7, 1997, the individual exercised his right under Part 710 to request a hearing in this matter. 10 C.F.R. § 710.21(b). On March 11, 1997, I was appointed as Hearing Officer in this case. After conferring with the individual and the DOE Counsel appointed, 10 C.F.R. § 710.24, I set a hearing date. At the hearing, the DOE Counsel called as witnesses the DOE Psychiatrist, the DOE Personnel Security Specialist who conducted the PSI with the individual, and the individual. The individual elected to call as witnesses his counselor, Dr. XXXXXXXXXX (Individual's Counselor), and two supervisory co-workers (Co-Workers #1 and #2, respectively). The transcript taken at the hearing shall be hereinafter cited as "Tr.". Various documents that were submitted by the DOE Counsel and the individual during this proceeding constitute exhibits to the hearing transcript and shall be cited as "Exh.".

II. Analysis

A DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal matter, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. See Personnel Security Hearing, Case No. VSO-0078, 25 DOE ¶ 82,802 (1996). In this type of case, we are dealing with a different standard designed to protect national security interests. A hearing is "for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization." 10 C.F.R. § 710.21(b)(6). Once the DOE has made a showing of derogatory information raising security concerns, the burden is on the individual to come forward at the hearing with evidence to convince the DOE that restoring his access authorization "would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.27(d). This standard implies that there is a strong presumption against the granting or restoring of a security clearance. See Dep't of Navy v. Egan, 484 U.S. 518, 531 (1988) ("clearly consistent with the national interest" standard for the granting of security clearances indicates "that security determinations should err, if they must, on the side of denials"); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance).

I have thoroughly considered the record of this proceeding, including the submissions of the parties, the evidence presented and the testimony of the witnesses at the 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): 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 voluntariness of the 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; the likelihood of continuance or recurrence; and other relevant and material factors. After due deliberation, it is my opinion that the individual's access authorization should not be restored since I am unable to conclude that such restoration would not endanger the common defense and security or would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a). The specific findings that I make in support of this determination are discussed below.

A. Findings

The individual is XXXXX years old and has been employed by the DOE contractor as a XXXXXXX for XXX years. The individual married his fourth wife in September 1996; he has one child, a son, whom he adopted with his first wife. However, it is certain behavior by the individual that occurred while married to his third wife, whom he ultimately divorced in March 1996, which gave rise to concern on the part of DOE security. The salient facts and circumstances, that are undisputed in the record, are summarized below.

In February 1996, the individual was hospitalized for five days at XXXXXXXXXXXXXXX (BHC), a psychiatric center, for treatment following an apparent suicide attempt. The individual stated that while at work on February 12, 1996, he began to feel "homicidal and suicidal" and therefore went to see an Employee Assistance Program (EAP) counselor who unfortunately discounted the individual's mental state and told him to go home. Exh. 1 (PSI) at 11; Tr. at 115. Upon arriving home, the individual became even more depressed and had "a severe anxiety attack." The individual then retrieved his pistol and sat downstairs in his home with the pistol in front of him, while he wrote a note expressing his feelings and contemplated suicide. Id. Before making an actual suicide attempt, however, the individual reportedly "blacked out" although he had not been drinking and found himself at his friend's door crying hysterically. Id.; Tr. at 117. The friend called the police who, upon arriving, took the individual to the hospital which then transferred him to BHC. Exh. 1 at 11-12; Tr. at 117.

Substantial stressful conditions existed in the individual's life at the time of the suicidal incident. At the time, the individual was separated and in the process of seeking a divorce from his third wife, who suddenly and unexpectedly announced to the individual in late December 1995 that she was leaving him. She left shortly thereafter and proceeded to move in with a man whom the individual thought to be his close friend. Tr. at 112-13. This revelation by his ex-wife that she was leaving him, and indeed that she had had another previous affair, was made to the individual when he was facing serious financial difficulties. The ex-wife's prolonged period of unemployment, their mounting medical bills (see note 2, infra) and unwise credit purchases left the individual unable to pay his bills, and under advice from his attorney he and his ex-wife began Chapter 7 bankruptcy proceedings in early December 1995. Exh. 1 at 30-35; Tr. at 114-15. Then added to this, the individual began to experience medical difficulties associated with a work related injury that he sustained in 1986 whereby he herniated a disc in his neck. Exh. 1 at 37; Tr. at 115. In January 1996, the injury became more aggravated and he began to experience pain associated with weakness in his left arm, leading his doctor to raise the possibility of surgery. The individual believes that it was all of these matters, combined with the feeling of uncaring he experienced at the EAP office, which brought things to a head leading to his suicidal state on February 12, 1996. Tr. at 115-16.

Upon his release from BHC, however, the individual further revealed during a PSI conducted concerning the February 1996 suicidal incident that it was not the first time that he had indulged the notion of suicide. The individual stated that he first experienced depressive episodes, thought about committing suicide and threatened to shoot himself on one occasion in May 1995, when he and his ex-wife were experiencing marital and financial difficulties. Exh. 1 at 4-5; Tr. at 108. Following this incident, the individual sought counseling and treatment from his family physician who placed the individual on the anti-depressant drug, Prozac, but later changed the individual's medication to Paxil. Exh. 1 at 8; Tr. at 110.(2) However, after his ex-wife left him, the individual states that he stopped taking his medication in early January 1996 when the prescription ran out, partly due to financial constraints and because "I didn't feel the medication was doing me any good . . . I was feeling worse." Tr. at 118.

After his suicidal incident in February 1996, the individual underwent psychiatric therapy and counseling with BHC physicians (BHC Psychiatrist and BHC Counselor, respectively), who diagnosed him with severe depression. Exh. 1 at 14. The BHC Psychiatrist, whom the individual saw four or five times, placed him on an anti-depressant medication, Xanax. Tr. at 120, 123. Following his release from BHC, the individual reportedly experienced "two major episodes of anxiety" which resulted in the BHC Psychiatrist increasing the individual's Xanax dosage to three times a day. Exh. 1 at 21-22; Exh. 5 (BHC Psychiatrist Report). The individual experienced one episode of anxiety while at work which required him to isolate himself; however, the individual states that he has suffered no anxiety attacks since April 1996. Exh. 1 at 23; Tr. at 127. The individual continued to see the BHC Counselor, first on a weekly and then on a bi-weekly basis, for a total of approximately twelve sessions. Tr. at 124-25.(3) However, at the end of July 1996, the individual stopped taking his medication, Xanax, when his prescription had been depleted. Tr. at 122. Around the same time, the individual elected to cease his sessions with the BHC Counselor since "it seemed like things were going good [and] I felt good about myself." Tr. at 123.

On August 14, 1996, the individual was seen by the DOE Psychiatrist who performed a two and one-half hour psychiatric assessment of the individual, and ultimately rendered in his report submitted to DOE with the diagnosis summarized above in discussing the Notification Letter. I will now turn to my analysis of the DOE Psychiatrist's finding that the individual has a mental condition of which causes or may cause a significant defect in his judgment and reliability. For the reasons below, I have determined that the individual was accurately diagnosed by the DOE Psychiatrist as having such a mental condition, and that the individual has failed to adequately mitigate the legitimate security concerns of DOE regarding this matter.

B. Section 710.8(h), Mental Condition

As specified in the Notification Letter Statement of Charges, the DOE Psychiatrist diagnosed the individual with a composite of psychiatric disorders leading to his conclusion that the individual has "a mental condition of a nature which . . . causes, or may cause, a significant defect in judgment and reliability." 10 C.F.R. § 710.8(h). During the hearing, the DOE Psychiatrist stated that his diagnosis was based upon a complete evaluation of the individual's psychiatric status and history, and then reaffirmed and expanded upon his assessment of the individual's mental condition. According to the DOE Psychiatrist, the primary mental condition which forms the basis for his concern is that the individual continues to have chronic depression dysthymia with associated anxiety disorder. Tr. at 41. The DOE Psychiatrist further believes that the individual harbors anger and hostility that are yet unresolved. Id.

More critically, the DOE Psychiatrist opined that because the individual has failed to maintain proper therapy treatment and medication(4), there is a considerable possibility that the individual will once again lose control of his depression and/or anger in the event he were again subjected to stressful circumstances. Tr. at 42-44. Indeed, the DOE Psychiatrist stated that in dysthymic persons such as the individual, a major depression might be triggered by usual occurrences such as the onset of winter or the anniversary date of a traumatic experience. Tr. at 45-46. According to the DOE Psychiatrist, it is the individual's obsessive thinking about stressful matters that might again lead him into depression and ultimately to another "dissociate reaction" (i.e. the "blackout" memory loss he experienced). According to the DOE Psychiatrist: "If [the individual] had an acute reaction -- I'm talking about got to the point of being dissociative, which borders on being psychotic -- there's only a brief step from obsession to dissociative reaction to a psychosis. Who knows what he could do." Tr. at 48.

The Individual's Counselor(5), who reviewed the DOE Psychiatrist's report, did not disagree with the essential characteristics of the DOE Psychiatrist's diagnosis. The Individual's Counselor believed that there has been a marked (25 to 30 percent) improvement in the individual since the DOE Psychiatrist's evaluation and did not fully agree with the DOE Psychiatrist's chronic, volatile depiction of the individual's mental condition. Tr. at 13-16. Nonetheless, the Individual's Counselor believes that the individual was properly diagnosed with dysthymic depression, which the individual still has, and therefore recommended that the individual "remain in therapy once every two to three weeks for at least a year to stabilize him and just to make sure that there are no other episodes . . . and then retesting at the end of the year period." Tr. at 23. In view of the individual current stabilized level of functioning, the Individual's Counselor was not persuaded that the individual needed to be on medication. Tr. at 19. However, the Individual's Counselor believes that it is crucial that the individual continue in therapy since in the absence of such treatment "there's a proneness to a major depression if something major happens." Tr. at 29. I asked the Individual's Counselor his opinion of the likely outcome if the individual were to face another major stressful incident without proper therapy; the Individual's Counselor responded: "If another major incident happened such as losing his job or a divorce situation or a wife moving in with a person . . . I hate to say it, but I think there is a hundred percent chance of the dissociative process happening again." Tr. at 36.

Thus, there is uncontroverted evidence presented in the record that the individual continues to have a mental condition which requires psychiatric therapy, and perhaps medication, on an ongoing basis for a suggested period of one year. Further, the bouts of depression, anxiety attacks and suicidal threats, as well as the prospect of more volatile behavior raised by the DOE Psychiatrist, convince me that the individual's mental condition has caused and may continue to cause a significant defect in his judgment and reliability.

In the individual's favor, I was persuaded by the testimony of the Individual's Counselor that the individual is now stable and his mental condition has improved substantially since his examination by the DOE Psychiatrist. In addition, as pointed out by the BHC Counselor, the individual did not actually attempt suicide and his "suicidal ideation" stemmed from a unusual combination of highly stressful circumstances. See note 3, supra. Moreover, the individual has demonstrated his willingness to seek help when necessary, from his family physician when he first had notions of suicide, from his EAP counselor at the workplace during a depressive episode, and in seeking treatment from BHC where he voluntarily admitted himself. Tr. at 22-23. In this regard, having heard the views of the Individual's Counselor, the individual stated at the hearing that he is now inclined to resume therapy. Tr. at 126.

Notwithstanding, I am unable to conclude that the individual has overcome the legitimate security concerns of DOE. There remains a a considerable possibility that the individual's mental condition may again manifest itself and significantly impair his judgment and reliability, were the individual to be confronted with a highly stressful situation. I am therefore drawn to the conclusion that the individual should not be allowed to hold a security clearance at this time.

C. Section 710.8(l), Unusual Conduct

In the Notification Letter, Statement of Charges, DOE expresses concern with the individual's decisions to discontinue taking his prescribed anti-depressant medication (Paxil) in January 1996, prior to the suicidal incident, and then to again discontinue prescribed medication (Xanax) and counseling in July 1996. According to DOE, these decisions constitute unusual conduct which tend to show that the individual is not reliable. Although DOE had plausible cause to raise this matter, I am not persuaded based upon my review of the circumstances and testimony presented that these decisions by the individual demonstrate unreliability on his part.

It is DOE's position that the individual should not have discontinued his anti-depressant medication in either instance without the advice and approval of the prescribing physician. As noted by DOE Counsel at the hearing, these types of medications are normally accompanied by written material informing the patient that the medication should not be discontinued without proper medical supervision. Tr. at 119. However, the individual testified that he did not recall ever seeing such material, explaining that in the first instance he received the medication (Paxil) through his ex-wife's medical plan and she generally picked up the medication. Id. The individual further testified that neither his family physician or the BHC Psychiatrist told him that he should not discontinue the medication without their authorization. Tr. at 119, 121. In both instances, the individual had not seen the prescribing physician for quite some time and neither physician required a follow-up appointment of the individual. Thus, the individual was without guidance when he decided to discontinue medication first in January 1996, because he felt it wasn't helping, and again, in July 1996, because he was feeling well and hadn't had an anxiety attack since April 1996. The individual further stated that neither the BHC Psychiatrist or the BHC Counselor indicated to him that he could not discontinue counseling by his own volition. Tr. at 124-25.

I found the individual to be forthright and convincing in proffering his explanation for his determinations to discontinue medication and counseling. The Individual's Counselor testified that although, in retrospect, the individual should not have discontinued medication, certainly in January 1996, he was not surprised by the individual deciding to do so based upon his knowledge of the individual's personality. According to the Individual's Counselor, it was fitting with the individual's temperament for him to assume that "once he finished the course of treatment, you're done" and for him to assume, similar to taking antibiotic medication, that when "you finish the thirty day prescription period you're done." Tr. at 19. Further, I find no other reason to doubt the individual's reliability in this regard. The individual's Co-Workers were very persuasive in their testimony in assessing the individual as a very reliable person. Tr. at 72, 75. Indeed, Co-Worker #2, the individual's foreman stated that the individual was the worker that he generally chose to leave in charge in his absence. Tr. at 75. Finally, with regard to this matter, the individual was convincing in giving his assurance that he will maintain his medication as directed, if medication is again prescribed in treatment for his mental condition. Tr. at 126-27.

On the basis of the foregoing, I have determined that the individual has successfully mitigated the security concerns of DOE relating to his decisions to discontinue medication and counseling, as bearing upon the matter of the individual's reliability.

III. Conclusion

As explained in this Opinion, I find that DOE properly invoked 10 C.F.R. §§ 710.8(h) and 710.8(l) in suspending the individual's access authorization. It is my opinion that the individual has a "mental condition of a nature which . . . causes, or may cause, a significant defect in judgment or reliability." 10 C.F.R. § 710.8(h). I do not find on the basis of the record before me that the individual has "[e]ngaged in [] unusual conduct . . . which tend[s] to show that the individual is not honest, reliable, or trustworthy . . . .," within the meaning of section 710.8(l). Notwithstanding, in view of my finding of a continuing mental condition under section 710.8(h), I cannot find that restoring the individual's access authorization at this time would not endanger the common defense and security and would be consistent with the national interest. Accordingly, I find that the individual's access authorization should not be restored.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of this Hearing Officer's Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585-0107, and served on the other party. If either party elects to seek review of the Opinion, that party must file a statement identifying the issues on which it wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files its request for review. The party seeking review must serve a copy of its statement on the other party, who may file a response

within 20 days of receipt of the statement. 10 C.F.R. § 710.28(b). The address where submissions must be sent for purposes of serving them on the Office of Security Affairs is as follows:

Director

Office of Safeguards and Security, NN-51

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874-1290

Fred L. Brown

Hearing Officer

Office of Hearings and Appeals

Date: August 14, 1997

(1)1/ An 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 or security clearance. In the present case, the individual seeks the restoration of a level "L" access authorization; however, that designation has no bearing upon the applicable standards governing eligibility to hold an access authorization.

(2)2/ Shortly after this time, in June or July 1995, the individual's ex-wife was sexually assaulted at her place of employment, which induced her to quit her job and to go into therapy. Tr. at 111-12. At the same time, the individual and his ex-wife had begun marriage counseling in an attempt to resolve their difficulties, and the individual was continuing in treatment with their family physician for his depressive episode. Tr. at 112; Exh. 1 at 8. This resulted in extensive medical bills which further exacerbated their poor financial condition.

(3)3/ At the hearing, the individual submitted a letter dated June 28, 1996, from the BHC Counselor to DOE security. Exh. 3. In the letter, the BHC Counselor states that the individual's thoughts of suicide in February 1996 were not unusual considering he was facing "4 out of the 5 major psychological stressors of life": 1) divorce; 2) bankruptcy; 3) loss of home; and 4) health issues relating to injury. The BHC Counselor proffered his assessment that "[the individual] has dealt with and worked through many of the psychological stressors which brought about the major depressive episode and has an optimistic view of the future. . . . At this time I see [the individual]'s risk of self harm as low with no indication of risk of harm to others." Id.

(4)4/ The DOE Psychiatrist was not convinced that the individual must necessarily remain on medication if the individual receives proper psychiatric therapy. However, the DOE Psychiatrist noted the "dissociate response" (i.e. the individual's reported blackout) was likely brought on by the individual's tendency to dwell obsessively upon his problems. The DOE Psychiatrist noted that proper medication could serve to control such obsessive thought. Tr. at 44-45. In this regard, the DOE Psychiatrist opined that Paxil would be a good medication to control the individual's obsessions and that other medications may be suitable to control his tension and anxiety; however, the DOE Psychiatrist did not believe that Xanax, the most recent drug prescribed by BHC, was appropriate given the nature of the individual's psychiatric condition. Tr. at 44, 48.

(5)5/ The Individual's Counselor is not a psychiatrist but a licenced counselor, with a doctorate in counseling and counseling education. Tr. at 13, 24. The Individual's Counselor first began seeing the individual in April 1997, and at the time of the hearing had seen him five times. Tr. at 24-25.