Case No. VSO-0150, 26 DOE ¶ 82,789 (H.O. Fine August 7, 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 7, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case:Personnel Security Hearing

Date of Filing:March 31, 1997

Case Number: VSO-0150

This Opinion concerns the eligibility of XXXXXX (the individual) to hold an access authorization(1) 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." On XXXX, 1996, the individual's access authorization was suspended pursuant to the provisions of Part 710. In this Opinion, I consider whether, based on the record before me, the individual's access authorization should be restored. As indicated below, I am of the opinion that his access authorization should not be restored.

I. BACKGROUND

The individual is a DOE contractor employee who is required to hold an access authorization as a condition of employment. During the period beginning XXX XX, 1996 and ending on XXX XX, 1996, the individual was involuntarily hospitalized for psychiatric treatment.

As a result, a DOE Personnel Security Specialist conducted a Personnel Security Interview (PSI) with the individual. However, this interview did not resolve the security concerns raised by the individual's hospitalization. The DOE therefore requested that the individual consent to a psychiatric examination. On XXX XX, 1996, a board-certified psychiatrist conducted a psychiatric examination of the individual on behalf of the DOE. On the basis of this examination and a review of the individual's psychiatric and employment records, the DOE psychiatrist concluded that the individual suffered from bipolar and paranoid personality disorders. His access authorization was suspended and an administrative review proceeding was initiated in accordance with 10 C.F.R. § 710.9.

The administrative review process 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). The notification letter informed the individual that information in the possession of the DOE indicated that he 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 judgment or reliability." 10 C.F.R. § 710.8(h).

The individual filed a request for a hearing in which he denied the allegations of mental illness. Request for Hearing. This request was forwarded to the Office of Hearings and Appeals (OHA) and I was appointed as Hearing Officer. At the hearing, the DOE presented two witnesses: a DOE Personnel Security Specialist and the DOE Psychiatrist. The individual testified on his own behalf and called his spouse as a witness. The record of this proceeding was closed when OHA received a copy of the transcript of the hearing. Transcript of Hearing, Case No. VSO-0150 (hereinafter cited as "Tr.").

II. STANDARD OF REVIEW

The Hearing Officer's role in this proceeding is to evaluate the evidence presented by the agency and the individual, and to render an opinion based on that evidence. See 10 C.F.R. § 710.27(a). The regulations state that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the 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). Among the factors I have considered in rendering this Opinion concerning the individual's eligibility for access authorization are the following: the nature, extent, and seriousness of his conduct; the circumstances surrounding the conduct, including knowledgeable participation; the frequency and recency of the conduct; his age and maturity at the time of the conduct; the voluntariness of his participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for his conduct, the potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors. See 10 C.F.R. §§ 710.7(c), 710.27(a). The discussion below reflects my application of these factors to the testimony and exhibits presented by both sides in this case.

The regulations state that 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 individual must 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 security determinations should err, if they must, on the side of denials. See Department of the Navy v. Egan, 484 U.S. 518, 531 (1988); 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). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual in cases involving national security issues. Personnel Security Review, Case No. VSO-0002, 24 DOE ¶ 82,752 at 85,511 (1995). In the present case, I have reached the opinion that the individual has not met his burden of proving that restoring his clearance is clearly in the national interest.

III. ANALYSIS AND FINDINGS OF FACT

The series of events which have resulted in the present hearing began in XXX of 1996 when the individual was informed of the impending death of his father. Soon afterward, the individual, accompanied by his spouse, drove from XXX to XXX where his parents resided. Shortly after he arrived at this location, his father passed away. He spent the following week with his mother. During this time, the individual was subject to a number of highly stressful situations. After spending approximately a week in XXX, the individual and his spouse decided to visit his eldest daughter's family (which included their son-in-law and granddaughter) in XXX. The individual and his spouse then drove from XXX to XXX, getting little or no sleep along the way.

The record contains contradictory accounts of the events that transpired after the individual arrived in XXX. Apparently, the individual's behavior in XXX concerned some of his family members. Those family members encouraged the individual to undergo a medical exam at the ECMC. As a result of this examination, the individual was involuntarily admitted to ECMC for psychiatric observation and treatment on XXX XX, 1996. The medical staff at ECMC diagnosed the individual with bipolar disorder and further concluded that he was suffering an acute manic episode. The individual remained involuntarily confined at ECMC for approximately XX days.

The individual's hospitalization for treatment of bipolar disorder raised serious security concerns under the criteria set forth at 10 C.F.R. § 710.8(h). Section 8(h) provides that a serious security concern is raised when an 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 judgment or reliability.

10 C.F.R. § 710.8(h). In order to resolve the security concerns raised by the individual's hospitalization and diagnosis, the DOE arranged for the individual to be examined by a DOE sponsored psychiatrist. The DOE sponsored psychiatrist reviewed copies of ECMC records concerning the individual's hospitalization. On XXX XX, 1996, the DOE Psychiatrist conducted a psychiatric examination of the individual. After reviewing these records and examining this individual, the DOE psychiatrist concluded that the individual had both a bipolar disorder and a paranoid personality disorder. The DOE Psychiatrist further concluded that the individual lacked sufficient judgment and reliability to maintain his DOE access authorization. As a result, the individual's access authorization was suspended and the present administrative review was commenced.

I am convinced 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. I base this finding upon both the written report prepared by the DOE Psychiatrist and his testimony at the hearing. After conducting his XXX XX, 1996, psychiatric interview of the patient, the DOE Psychiatrist concluded:

[T]he subject continues to show some symptoms that are congruent with a bipolar disorder, manic type. He still has grandiose thinking. He still is delusional and paranoid in a grandiose and mood-congruent manner. His speech is loose at times and circumstantial. His defensiveness and guardedness did not allow for further access to other symptoms that might support ongoing difficulties, though the ones that could be seen during the interview made it clear that the subject was continuing to suffer with a bipolar disorder. He could not cover up his loosening of associations, circumstantiality, and pressured speech when confronted.

XXX XX, 1996, Psychiatric Evaluation at Page 9. The DOE Psychiatrist also diagnosed the individual with a paranoid personality disorder. Id. Accordingly, I find that the record contains sufficient evidence of an illness or mental condition which causes or may cause a defect in judgment and reliability to warrant the suspension of his clearance.

The remaining question before me is whether there are any mitigating factors indicating that the individual's access authorization should be restored despite his mental disorders. 10 C.F.R. § 710.7(c). After having the opportunity to observe the individual's testimony at the hearing, the DOE Psychiatrist testified that there are mitigating circumstances in the present case. The DOE Psychiatrist testified that the individual has "recovered from the acute manic illness . . .." (Tr. at 194). To this end he testified:

I would say that the illness that had caused the defect of judgement and reliability is mitigated now by time, and the symptoms have lessened to the point where I would say that he's not at risk today.

(Tr. at 244). Moreover, the DOE Psychiatrist's testimony also indicates that in his opinion, the individual's paranoid personality disorder does not create a defect in the individual's judgment and/or reliability. For example, the DOE Psychiatrist testified that:

If [the individual] had come to my attention for no other external events aside from the paranoid personality, I'm not sure how that would have been brought to our attention. If its just that, I would then suggest that since he's had that for 35 years or 30 years, and it hasn't interfered with his work, and he's not been reprimanded, and he's not consuming alcohol, and he's not getting into fights, and he's a hard working man, and he drives, like, an hour and a half each way and he's supporting a family and two households, with the XXX House, so he is a hardworking man. He is a good family man. He's just very opinionated. And I would not say that his paranoid personality, in and of itself, would have been such to cause him defect in judgment or reliability within the meaning of the codes.

(Tr. at 197). The DOE Psychiatrist apparently believes that since the individual's bipolar disorder is no longer in an active state, his judgment and reliability are currently without a significant defect.

However, the DOE Psychiatrist did testify that the individual could suffer a relapse of his bipolar disorder, especially if he was subjected to severe stress. (Tr. at 244). If the individual does suffer a relapse, it is likely that his judgment and reliability will once again become significantly impaired. (Tr. at 195). While it is clear that the individual has a biological predisposition to manic episodes, the likelihood of reoccurrence is unclear. (Tr. at 139, 195 and 197). The DOE Psychiatrist testified that the individual is more likely to have a manic episode than the average person, but was unable to say how much more likely. (Tr. at 198). The only quantification of the risk that the DOE Psychiatrist was willing to provide was that he considered a relapse of the individual's Bipolar disorder to be possible but not probable. (Tr. at 246-47). The DOE Psychiatrist did however, discuss several factors in the present case which may militate against the probability of another manic episode. (Tr. at 194, 197-98). Specifically, the DOE Psychiatrist noted that the individual has had only one manic episode in over 50 years, that the individual was able to recover from his episode, that the one episode apparently resulted from a series of unusually severe stressors, the individual is a good and reliable worker, and that the individual has an unusually supportive spouse. Id. On these bases, the DOE Psychiatrist opined that the individual "could go the rest of his life without an episode." (Tr. at 198).

Unfortunately, the individual's paranoid personality complicates the situation. (Tr. at 158-59, 196- 98). The individual refuses or is unable to recognize that he is at risk for having additional manic episodes and has not followed up on the treatment recommendations made by the ECMC staff and the DOE Psychiatrist. Upon admission to ECMC, the individual was prescribed Lithium and Haldol. When the individual was discharged, he discontinued the Haldol and Lithium because of the side effects. (Tr. at 229-33). The DOE Psychiatrist recommended that the individual continue on mood stabilizing medicine and possibly neuroleptic medication for a period of six months to two years. (Tr. at 136-37); Report of Psychiatric Examination at 11. In addition, the DOE Psychiatrist found that the individual required ongoing counseling and education about his disorders. (Tr. at 160). Unfortunately, the individual has steadfastly refused to continue his medication and has not sought counseling. In fact, the individual refuses to believe that he may have a mental disorder. According to the DOE Psychiatrist, this failure to accept the fact that he has a mental illness and to undergo the recommended treatment complicates his ability to avoid relapse. (Tr. at 196-98, 244-45). The DOE Psychiatrist testified that this inability or unwillingness to accept the recommended treatment poses a risk. (Tr. at 158-59).

The individual's refusal to continue treatment increases the possibility of relapse. Id. In evaluating the potential risk posed by the possibility of relapse, I must consider both the likelihood of relapse and the potential consequences of a relapse. In the present case, the probability of a relapse occurring has been described by the DOE Psychiatrist as possible but not probable. (Tr. at 246-47). Accordingly, I find that the individual would most likely not have a second manic episode.

If the individual had another manic episode however, he could be expected to experience an extremely significant defect in judgement and reliability. Even though, it is more likely than not that the individual will not experience another manic episode, when I consider the likely consequences of an additional manic episode, I must conclude that, in this case, the possibly of relapse poses an unacceptable risk.

The individual's unwillingness to accept treatment for his condition reflects unfavorably upon his judgment. This unwillingness to acknowledge his disorders has contributed to my concerns about the individual's present judgement and rationality. At the hearing, the individual repeatedly claimed that he "was given drugs of unknown or experimental quality" by the ECMC 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 ECMC staff. (Tr. at 224 ("their objective seemed [to be] to upset you. Keep you upset, on the ragged edge and they was seeing how this medicine would affect you. That's why I think it was experimental.")). For these reasons, I harbor grave concerns about the individual's rationality and judgment. I cannot recommend the restoration of the individual's access authorization while harboring such grave doubts.

I recognize that a board-certified forensic psychiatrist (the DOE Psychiatrist) has listened to the same testimony that I have and concluded that there is no present defect in the individual's judgment and reliability. However, as the Part 710 regulations dictate, it is the Hearing Officer who must make a predictive assessment of risk in order to make a common sense judgment 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). Sometimes Hearing Officers are required to make determinations which are contrary to the recommendations of medical experts. If the opinions of medical experts were binding on Hearing Officers, this process would be transformed into a simple matter of obtaining a medical diagnosis which calls into question an individual's judgement or reliability, or vice versa. Personnel Security Hearing, 25 DOE ¶ 82,751 at 85,503 (1995); affirmed 25 DOE ¶ 83,014 (1995) (OHA, 1995); terminated, (OSA, 1995). Such a decision rule is clearly not contemplated by the DOE Security regulations.

IV. CONCLUSION

Because of my concerns about the possibility of relapse and the doubts about the individual's judgment raised by his refusal of treatment and unusual testimony, I am unable to recommend the restoration of the individual's access authorization. I therefore find that because of the individual's illness or mental condition, the DOE has properly invoked 10 C.F.R. §710.8(h). While I have found that mitigating circumstances exist, I am still of the opinion that restoration of his access authorization would not be consistent with the national interest. Accordingly, I find that the individual has not shown that restoring his access authorization would not endanger the common defense and security and would be clearly consistent with the national interest.

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 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 to which 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

Steven L. Fine

Hearing Officer

Office of Hearings and Appeals

Date: August 7, 1997

(1)Access authorization is defined as an administrative determination that an individual is eligible for access to classified matter or is eligible for access to, or control over, special nuclear material. 10 C.F.R. § 710.5(a). Such authorization will be referred to variously in this Opinion as access authorization or security clearance.