Case No. VSO-0312, 27 DOE ¶ 82,846 (H.O. Lazarus April 27, 2000)

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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.

April 27, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: October 28, 1999

Case Number: VSO-0312

This Opinion considers the continued eligibility of XXXXXXXX (the individual) to hold a level "Q" access authorization under the regulations set forth in 10 C.F.R. Part 710, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." The individual is employed by the Department of Energy (DOE). DOE suspended the individual’s access authorization based on information that he had used illegal drugs in violation of a DOE Drug Certification. It is my opinion that the individual's access authorization should be restored.

PROCEDURAL BACKGROUND

On October 4, 1999, pursuant to 10 C.F.R. 710.8(l), DOE suspended the individual’s “Q” access authorization based on the individual’s admission that he had used marijuana from 1995 to 1996, violated a DOE drug certification and received a citation for possession of marijuana on April 4, 1996. The individual requested a Hearing regarding his eligibility for an access authorization, and a Hearing was held before the undersigned Hearing Officer. At the Hearing, DOE presented the testimony of a DOE security specialist. The individual testified on his own behalf, and presented the testimony of an employee assistance program (EAP) counselor and a physician who is the director of a substance abuse program.

FINDINGS OF FACT

After considering the entire record of this proceeding, including the pre-hearing stipulations filed by the parties on December 23, 1999, I make the following findings of facts:

A. The Factual Evidence

In 1989, DOE required the individual to sign a drug certification before he was granted a “Q” access authorization. Stipulations No. 6 and 8.(1)

In 1990, the individual's father was diagnosed with colon cancer. Although his parents lived in a distant city, the individual was a critical part of father’s support system and an active care-giver. In 1995, the individual’s father became bedridden. The individual took every opportunity to visit his parents and help his mother to care for his father. With the help of a hospice organization, the family was able to care for the individual’s father at home. The individual’s father passed away in December of 1995. Stipulation No. 16.

The individual was very depressed during this period, and he admits that the depression impaired his judgment.(2) The individual testified that, because his judgment was impaired, he violated the drug certification by using marijuana between November of 1995 and April of 1996.(3) Stipulation No. 17; Transcript of Hearing (Transcript) at 79.

In April of 1996, while on personal business in Ohio, the individual was “pulled over” for a traffic violation, and the police discovered that the individual had a small amount of marijuana in his possession. The police officers gave the individual a “citation” for Possession of Marijuana. The individual admits that, at the time that he received this citation, he was under the influence of the drug. Although the individual was not arrested for this offense, he was fined $150. Stipulation No. 19. After he received this citation, the individual stopped using marijuana. Individual’s Exhibit 1. (4)

Realizing that his life was spiraling downward, on May 6, 1996, the individual consulted an employee assistance program (EAP) counselor for “help with a marijuana problem.” Individual’s Exhibits 1, 2 and 3. Based on her interview with the individual, the EAP counselor stated that the individual appeared to be suffering from major depression superimposed on dysthymia. Individual’s Exhibit 2. The EAP counselor noted that the individual “appears overwhelmed by stresses in his life.” Transcript at 120. She referred the individual for medical and psychiatric examinations, and also suggested that the individual should be evaluated by a drug program. Individual’s Exhibit 2 and 3.

On May 9, 1996, the individual went to see his primary care physician. According to the medical records, the primary care physician diagnosed the individual as suffering from “depression,” and prescribed Prozac. Stipulation No. 24. The primary care physician suggested that the individual exercise for thirty minutes a day, referred him for a mental health evaluation, and instructed the individual to return in four weeks. Individual’s Exhibit No. 5.

On May 17, 1996, the individual returned to see the EAP counselor. The individual told the EAP counselor that his primary care physician had prescribed Prozac and referred him to a mental health clinic. The EAP counselor encouraged the individual to follow the doctor’s guidance, and also told him that he would benefit from a 12-step program. After this visit, the EAP counselor noted that the “case was closed.” Individual’s Exhibit 3.

The individual never returned to see his primary care physician, nor did he obtain any additional counseling or participate in a twelve-step program. Transcript at 83-86. The individual continued to take Prozac until November of 1996 when he could no longer refill the prescription.(5)

The individual testified that he recovered from his depression in November of 1996. Stipulation No. 25. Since that time, the individual has received performance awards, time- off awards and a special recognition from the manager of the local operations office. Transcript at 100-105. In March of 1999, during a routine re-investigation of his security clearance, the individual told a DOE personnel specialist that he had violated the drug certification by using marijuana on numerous occasions in 1995 and 1996, and that he had received a citation for possession of marijuana in Ohio. Based on this information, DOE suspended the individual’s clearance.

B. The Expert Testimony

1. The Personnel Security Specialist

At the Hearing, DOE presented the testimony of a personnel security specialist. The personnel security specialist stated that the individual had broken his promise to DOE that he would not buy or use illegal drugs. The personnel security specialist also testified that DOE automatically suspends the access authorization of an individual who has violated a drug certification because the individual is no longer considered to be trustworthy, and is considered to be at an increased risk for blackmail. The personnel security specialist also testified that she was particularly concerned about the individual’s conduct in this case because of his history of illegal drug use and providing false information to DOE,(6) as well as his failure to report the citation he received for possession of marijuana before he was re- investigated for a clearance. Moreover, the personnel security specialist indicated that the individual was still attempting to keep his past use of illegal drugs a secret. Transcript at 32- 53.

2. The Doctor who Directs the Substance Abuse Program

The individual presented the expert testimony of a doctor who is the director of a substance abuse program. The doctor testified that the individual became depressed because of his father’s illness:

I think he was really caught off guard by this situation with his father. I think this was a new situation for him to be depressed. I think it was very crippling, very painful. And part of his problem is his father didn’t die right away. Part of the problem is he had to watch this go on and on and on, and that probably kept him from being able to work through it, too.

Transcript at 172.

The doctor testified that this depression impaired the individual’s judgment and caused him to use illegal drugs in violation of the drug certification. Transcript at 162. The doctor explained that depression often causes severe impairment:

An individual gets depressed enough, their ability to function at home, at work, as a parent, can be severely impaired. . . Most people that are severely depressed are critically impaired. They make bad decisions, they can’t balance their checkbooks, they can’t think clearly, they can’t focus on tasks, they’re irritable. . . .

Transcript at 162.

The doctor stated that the individual’s depression had caused him to “basically lose sight of the security regulations that he had to follow.” Transcript at 162. The doctor explained that, when he was depressed, the individual was not acting as he would under normal circumstances:

This is a smart man. He would not use marijuana lightly. He would not make a decision to use marijuana and risk everything that he has spent his life trying to acquire. The only reason he would do that would be if he was in so much emotional pain that he was desperate. And under those conditions, the only thing you think of is relief of that pain. Your job, your family, your career, etc. takes a second place. And because he had a history of having used marijuana in the past, he knew what it would do. He knew it was a quick and easy fix. It’s not a decision he would make under normal circumstances.

Transcript at 163.

The doctor also testified that the individual had recovered from his depression, and that he was doing fine. The doctor stated that there was no evidence that the individual was suffering from a mood disorder before his father became ill, and that the individual was not currently suffering from a condition that would warrant psychotropic medications, therapy or counseling. Transcript at 170-175.

The doctor explained that depression is often relieved by an antidepressant, and that the individual was able to heal because he had stopped using marijuana, had started to use Prozac, and was able to stop being a caretaker and complete the process of mourning the loss of his father. The doctor stated that because he is no longer depressed, the individual no longer felt that he needed to use marijuana. Although the doctor stated that the individual may become depressed again, the doctor believes that it is extremely unlikely that the individual will ever use illegal drugs again because the individual is now aware of an appropriate treatment for depression. Id. (7)

III. ANALYSIS

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). To restore the individual’s security clearance, I must find that restoring this access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. See 10 C.F.R. § 710.27(d). In making a determination here, I will consider the relevant factors and circumstances connected with the individual's conduct. These factors, which are set forth at 10 C.F.R. § 710.7(c), include "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 age and maturity of the individual at the time of the conduct; the voluntariness of 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; [and] the likelihood of continuation or recurrence. . . ."

I find that, as a result of his father’s long illness, the individual’s judgment was impaired and he violated a drug certification. Accordingly, I find that DOE acted properly when it suspended the individual’s access authorization.

However, notwithstanding his past untrustworthy conduct, I find that the individual’s access authorization should be restored. An access authorization that has been suspended under Criterion L may only be restored if a Hearing Officer determines that the individual is trustworthy. Here, I find that the individual is trustworthy. I am convinced that the individual is a responsible and highly moral person. For several years, the individual cared for his father who was suffering from a terminal illness. Even though it involved great personal sacrifice, the individual acted in a highly responsible and compassionate manner and enabled his father to remain at home after he became bedridden.

Moreover, I also find that the individual’s judgment is sound and that it is highly unlikely that he will use illegal drugs in the future. The doctor who directs the substance abuse clinic testified that the individual was depressed as a result of his father’s illness, and that the depression impaired the individual’s judgment and caused him to use illegal drugs in violation of a drug certification.(8) The doctor testified that the individual had recovered from his depression, and that the individual is no longer impaired. The doctor also testified that it is extremely unlikely that the individual will ever use illegal drugs again because the individual is aware of an appropriate treatment for depression. I have no basis for rejecting the doctor’s opinion. See Lewis v. WMATA, 19 F. 3rd 677 (D.C.Cir. 1994)(Court requires expert testimony when information is beyond ken of lay person); Brock v. Merrell Dow Pharmaceuticals,Inc., 874 F. 2d 307 (5th Cir. 1989) (Defendant entitled to JNOV because plaintiff failed to present adequate expert testimony on matter that required expert testimony). Accordingly, I find that the individual is a responsible person, and that his judgment is no longer impaired. As such, I find that the security concerns raised by the individual’s use of illegal drugs in violation of a drug certification have been mitigated, and that the individual's access authorization should be restored. See Personnel Security Hearing, Case No VSO-0128, 26 DOE ¶ 82,784 (1997).

The regulations governing this proceeding provide that either the DOE's Office of Security Affairs or the individual may file a request for review of this Opinion. 10 C.F.R. § 710.28(a). The request must be filed within thirty calendar days of receipt of this Opinion. Within fifteen calendar days of filing such a request, the requesting party must file a statement specifying the issues upon which it seeks review. The other party may file a response to the statement of issues. It must do so within twenty calendar days of receipt of the statement of issues. All submissions must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Avenue, SW, Washington, D.C. 20585-0107. In addition, a party must send a copy of each of its submissions to the other party.

Linda Lazarus

Hearing Officer

Office of Hearings and Appeals

Date: April 27, 2000

(1)DOE required the individual to sign a drug certification because, in the past, he had used illegal drugs and had provided false information to the agency. DOE did not suspend the individual’s access authorization because he had provided false information to the agency. Stipulation No. 2.

(2)DOE has stipulated that the individual was suffering from major depression (dysthymia) during this period. Stipulation No. 23. DOE has also stipulated that depression is a “medical disorder that may be caused by many things including family history and genetics, other general medical illnesses, certain medicines, drugs or alcohol, other psychiatric conditions, or certain life conditions such as extreme grief or stress.” Stipulation No. 27.

(3)DOE has stipulated that an individual who is depressed will have at least three of the following symptoms:

Stipulation No. 28.

(4)DOE has stipulated that the individual does not need to be rehabilitated from his use of illegal drugs. Stipulation No. 26.

(5)The individual continues to exercise regularly. Transcript at 86.

(6)DOE did not suspend the individual’s security clearance because he provided false information to the agency, or had used illegal drugs. See Section 710.8.

(7)Moreover, DOE has stipulated that the individual does not need to be rehabilitated from using illegal drugs.

(8)I also find that the individual’s depression, and consequent lack of judgment, was the reason that he delayed reporting the citation he received for possession of marijuana to DOE security.