Case No. VSO-0253, 27 DOE ¶ 82,804 (H.O. Schwartz May 26, 1999)

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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.

May 26, 1999

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: December 23, 1998

Case Number: VSO-0253

This Opinion concerns the eligibility of XXXXXXXXX (hereinafter referred to as "the individual") to hold an access authorization (also called a security clearance) under the Department of Energy (DOE) regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." As explained below, I recommend against reinstating the individual’s access authorization.

Background

The individual held an access authorization from 1985 to 1995. The individual is employed by a DOE contractor that has again requested access authorization for the individual. The local DOE security office issued a Notification Letter to the individual on November 6, 1998. The Notification Letter alleges under 10 C.F.R. § 710.8(h) that the individual “has an illness or mental condition of a nature which, in the opinion of a board-certified psychiatrist, causes, or may cause, a significant defect in his judgment or reliability.” This charge is based on a number of psychiatric evaluations of the individual, including one recently performed by a DOE consultant psychiatrist (DOE psychiatrist), who reported that the individual suffers from bipolar disorder, last episode manic, with psychotic symptoms, and expressed his opinion that this condition causes a significant defect in the individual's judgment and reliability.

Because of these concerns, the case was referred for administrative review. The individual filed a request for a hearing on the charge described in the Notification Letter. DOE transmitted the individual's hearing request to the Office of Hearings and Appeals (OHA), the OHA Director appointed me as Hearing Officer in this case, and I convened a hearing at the convenience of the parties.

At the hearing, the DOE Counsel called the DOE psychiatrist as his only witness. The individual represented himself, testified on his own behalf, and called his supervisor, his former wife, and a member of the clergy as additional witnesses. The DOE submitted 59 written exhibits and the individual submitted five written exhibits, including one at the hearing. Upon receipt of the transcript of the hearing, I closed the record.

Standard of Review

The applicable DOE 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). In resolving questions about the individual’s eligibility for access authorization, I must consider the relevant factors and circumstances connected with the individual’s conduct. These factors are set out in § 710.7(c):

the nature, extent, and seriousness of the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the voluntariness of participation; the age and maturity of the individual at the time of the conduct; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct; the potential for pressure, coercion, exploitation, or duress; [and] the likelihood of continuation or recurrence.

A DOE administrative review proceeding under 10 C.F.R. Part 710 is authorized when the existence of derogatory information leaves unresolved questions about an individual’s eligibility for access authorization. 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). The burden is on the individual to come forward 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. § 710.7(a). See Personnel Security Hearing, Case No. VSO-0013, 24 DOE ¶ 82,752 at 85,511 (1995) and cases cited therein. The individual has not met this burden. For the reasons discussed below, I recommend that his access authorization not be reinstated.

Findings of Fact and Analysis

In his report, the DOE psychiatrist outlined the individual's history of mental illness over the past seven years. While I take note that the individual has challenged the legitimacy of psychiatry as a science and as a tool for assessing the mental health of a "born-from-above" Christian, see, e.g., Transcript of Hearing (Tr.) at 149-50, there is no evidence in the record that contradicts the facts contained in the following summary of his medical history. The individual reported that his father was abusive and possibly a paranoid schizophrenic, and his mother was an alcoholic. As an adolescent, he had some interaction with the police, particularly concerning his detonation of explosives. DOE Psychiatrist's 1998 Report (Report), DOE Exhibit 22, at 4. After serving in Vietnam, he returned and was later treated for Post Traumatic Stress Disorder (PTSD). Id. at 4, 6; Tr. at 49; DOE Exhibit 3. In 1993, the individual was voluntarily hospitalized after a suicide attempt. The treating psychiatrist diagnosed him as suffering from bipolar disorder and PTSD, and released him on medications after about two weeks. DOE Exhibit 54. In December 1994, the individual's girlfriend obtained a restraining order against him, which required that he not communicate with or contact her in any way, nor come within 100 yards of her. See Individual's February 22, 1999 Submission. In January 1997, he was arrested for violating the terms of the restraining order. Tr. at 90; Exhibit 3 at 2. After his arrest, he was transferred to a mental hospital where he remained involuntarily, on medications, for a month. Id.

In 1994, the DOE psychiatrist was asked to perform an evaluation of the individual in light of his 1993 hospitalization and a series of case evaluations. At that time, the DOE psychiatrist's opinion was that, although the individual had suffered from a single episode of bipolar disorder and a single error of judgment (attempted suicide), his judgment and reliability were not defective, and that he did not at that time "have an illness or mental condition of a nature which causes or might cause a significant defect in judgment or reliability within the meaning of 10 C.F.R. § [710.8(h)]." DOE Exhibit 35 at 7.

In his September 1998 report, the DOE psychiatrist found that the individual's mental health had deteriorated since he had interviewed him in 1994. Report at 2. He explained at the hearing:

[W]hen I first saw him [in 1994] he had the one episode of a mood disorder, and by the time I saw him in 1998 he had three episodes of a . . . severe mood disorder. The current thinking is that a person with that many episodes and that much disability based on each episode that required hospitalization should be on medicine for an indefinite period of time. My opinion then would be that he is suffering from a manic depressive illness, manic episodes, they're severe and they're psychotic, and he's had enough of these that warrant treatment by medication for a [long] if not indefinite period of time.

Tr. at 106. The DOE psychiatrist lists nine symptoms of bipolar disorder that he observed in the individual, either personally or through reviewing his records, among them: a distinct period of abnormally and persistently elevated, expansive or irritable mood, lasting at least one week (or any duration if hospitalization is necessary); inflated self esteem and grandiosity; distractibility; periods of out of control behavior, failure to respond to limits and agitation; and the presence of psychotic symptoms. Report at 9; Tr. at 105. He also observed the following psychotic symptoms, among others: delusions; hallucinations; episodes of mania and depression; thought disorder with loosening of associations including circumstantiality; and thought transference. Report at 9. At the hearing, the DOE psychiatrist testified that the individual continues to demonstrate symptoms of his illness. See, e.g., Tr. at 165 (tangential thinking), 182 (grandiosity), 206 (thought disorder).

In addition, the DOE psychiatrist addressed the individual's prognosis:

Based on the amount of episodes, the longevity of the episodes, and his behavior between the severe episodes, the prognosis is very poor. Based on his lack of insight and his not seeking treatment, his prognosis is poor. And the delusions that he has that continue between the major episodes are so firm and so fixed that they are not likely to respond to medication. . . . I believe that at this point his condition is probably intractable. Medication might take the edge off and decrease some of the irritability. It might even prevent a severe manic episode, but I believe that the delusions have lasted so long and are so fixed and he's getting so much [secondary] gain from them that they would not go away.

Tr. at 106-07. The DOE psychiatrist described secondary gain as benefits the individual reaps from the symptoms of his illness, and listed them:

[H]e gets an audience, he gets to be dysfunctional at work, he gets to feel so unique that . . . he's not likely to give up those symptoms because they're too rewarding for him. . . . [H]e's also somehow untouchable at work. . . . He feels a sense of euphoria and elation.

Tr. at 107-08.

The DOE psychiatrist wrote that he found insufficient evidence of rehabilitation or reformation from this mental illness. Report at 10. He listed the changes in behavior and mental state that would be needed to establish adequate evidence of rehabilitation and reformation, which included: the individual's thinking would have to be free from loosening of associations, such as tangentiality (thoughts jumping from subject to subject with no connections, explained at Tr. at 80) and circumstantiality (thoughts jumping from subject to subject but nonetheless arriving at the intended goal, id.); he would need to be able to control his proselytizing; he would need to accept responsibility for his actions and not excuse his behavior by drawing on the "lord"; he would need to be free from delusions; and he would need to maintain himself under psychiatric care (psychotherapy and medication) for an indefinite time. Report at 11. At the hearing, the DOE psychiatrist stated that such psychiatric care would have to be followed for at least a year before it could be considered as evidence of rehabilitation or reformation. Tr. at 111-12. (Even then, psychiatric care might not improve his condition. See discussion on prognosis, above.) As a result, the DOE psychiatrist's opinion was that the individual has not demonstrated evidence of rehabilitation or reformation. Tr. at 113.

At the hearing, the individual did not produce expert testimony challenging that of the DOE psychiatrist. Instead, he presented arguments of two types. First, he attempted to elicit testimony from his witnesses that he was not dangerous or difficult, but rather merely behaving as the Lord directed him. See, e.g., Tr. at 26 (testimony of clergy), 197 (testimony of supervisor). In fact, his former wife testified that he was kinder, easier to relate to and more trustworthy than before he was "with the Lord." Tr. at 118-19, 134. While he was questioning his former wife, the individual pointed out the irony that, although he was unaware at the time, he was probably more of a threat before he "came to the Lord," when the DOE was not concerned about his access authorization, than now. Tr. at 133. Despite the above testimony, the fact remains that a board-certified psychiatrist has diagnosed the individual as suffering from an illness that meets the elements of Criterion H. The individual has not produced evidence that questions this diagnosis, for example, the diagnosis of another medical professional. The only testimony that the individual has produced on this point is that of lay witnesses. The regulations state that a diagnosis of illness or mental condition must be delivered by a medical professional. 10 C.F.R. § 710.8(h). Nevertheless, lay testimony may be used to establish that the facts underlying a diagnosis are incorrect, and in this way call into question the diagnosis itself. In this case, however, the lay testimony and other evidence presented is insufficient to raise a doubt in my mind regarding the DOE psychiatrist's diagnosis.

Second, the individual argued that the psychiatrist's diagnosis of his mental state, on which the DOE's charge is based, is improper because the government's reliance on psychiatry to make a determination is a violation of the Constitution. The individual bases this contention on his premise that psychiatry is a religion, and the government "can't use it in this trial as evidence because . . . Congress shall make no law respecting an establishment of religion. So if you favor one religion over the other, it says not to do it." Tr. at 166. He further stated to the DOE psychiatrist, "You have no credentials for ever evaluating born-from-above believers and you're evaluating me. . . . [T]he fact is, if you don't believe in God and you're evaluating me-- Freud was an atheist. Psychiatry is based on atheism, and anyone who actually believes in psychiatry is actually accepting an atheist religious doctrine." Tr. at 150-51. He went on, "This man has no comprehension about God. He refuses to admit and bow to God. He bows to the darkness of shamanism, and you're having him evaluate me. I find this objectionable. . . . I want a psychiatric evaluation from somebody who understands God, from God's perspective." Tr. at 154.

I have carefully considered these arguments. While the individual strongly believes that he is correct, I have no authority to rule on constitutional claims such as this one. My authority to act as a hearing officer in this proceeding flows from the very regulations the individual has challenged as unconstitutional. If I were to declare these regulations unconstitutional, I would cease to have any authority to conduct the hearing and to render an opinion. Therefore, such a constitutional issue is best reviewed by the courts. Moreover, within the scope of the regulations that govern not only this hearing process but also the entire process for determining an individual's eligibility for access authorization, the individual's objections to being examined by the DOE psychiatrist do not prevail. These regulations, 10 C.F.R. Part 710, enumerate the types of human activities or conditions that raise concerns about individuals who engage in, or suffer from, them. See Tr. at 168. One such condition is described in 10 C.F.R. § 710.8(h). This provision, Criterion H, states that an opinion regarding illness or mental condition be made by a "board-certified psychiatrist, other licensed physician or a licensed clinical psychologist." It does not specify that the medical professional must be one who meets the approval of the individual being examined, or that he must be sensitive to the religious beliefs of the individual. Instead, the medical professional must be one who has received the appropriate training and experience to render a judgment concerning the individual's mental health. I do not find it improper that the DOE selected the DOE psychiatrist to evaluate the individual under Criterion H.

After reviewing the record in this case, I find that the DOE has sufficiently demonstrated that the individual suffers from a mental illness, bipolar disorder, last episode manic, with psychotic symptoms, that causes a significant defect in his judgment or reliability. I also find that the individual has not met his burden of coming forward with evidence to resolve the security concerns about his mental condition.

Conclusion

For the reasons explained in this Opinion, I find that the individual has failed to show that granting him access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, I recommend that the individual's access authorization not be granted. (1)

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

William M. Schwartz

Hearing Officer

Office of Hearings and Appeals

Date: May 26, 1999

(1)Although application of the regulations to the facts presented in this case leads me to this opinion, I note the following unsolicited opinion the DOE consultant psychiatrist expressed at the hearing:

[A]s of April 24, 1995, based on a severe mental illness, [the individual] should have been put out on short-term disability and compensated for his time. And if he failed to heal well enough to work, it would have been much more beneficial if [the individual] was placed on permanent disability. . . . And, . . . if for some reason, based on the outcome of this hearing, he's unable to work, he really is unable to work because of a disability, it would be unfair for him to just be left without any livelihood, unfair of his employer to leave him without any livelihood.

Tr. at 100-01.