Case No. VSO-0358, 28 DOE ¶ 82,755 (H.O. Augustyn August 1, 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.

August 1, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case:Personnel Security Hearing

Date of Filing:April 6, 2000

Case Number: VSO-0358

This Opinion concerns the eligibility of xxxxxxxxxx (the individual) to obtain an access authorization under the Department of Energy (DOE) regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled "Criteria for Access to Classified Matter or Special Nuclear Material."(1) As explained below, on the basis of the evidence and testimony presented in this proceeding, I recommend against granting the individual an access authorization.

I. Background

A DOE contractor requested that the DOE grant a security clearance to the individual so that he may perform the duties of the job for which he was hired in 1999. During a background investigation of the individual, the DOE discovered, among other things, that the individual had undergone psychiatric treatment for a mental condition from 1989-1993. Because this information raised security concerns, the DOE conducted a Personnel Security Interview (PSI) with the individual. When the PSI failed to resolve security concerns about the individual’s mental health, the DOE obtained the individual’s consent and referred him to a board-certified psychiatrist (DOE consultant- psychiatrist) for a mental evaluation.

In December 1999, the DOE consultant-psychiatrist examined the individual and determined that he met the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) for Bipolar I Disorder, Most Recent Episode Mixed, Severe with Psychosis, In Full Interepisode Recovery. The DOE consultant-psychiatrist opined further that the individual’s mental condition has caused a significant defect in his judgment and reliability in the past, and that there is a 50% probability that it will cause a significant defect in his judgment or reliability in the future. Shortly thereafter, the DOE obtained authority from the Director of the Office of Safeguards and Security to initiate this administrative review proceeding.

The DOE commenced the administrative review proceeding by issuing a Notification Letter to the individual identifying the individual’s mental condition as derogatory information that cast doubt about his eligibility for a security clearance. According to the DOE, the derogatory information falls within the purview of 10 C.F.R. § 710.8(h)(Criterion H). (2) To support the allegations set forth in the Notification Letter, the DOE cites the following:


Upon receipt of the Notification Letter, the individual filed a response to the Notification Letter and requested a hearing. The DOE transmitted the individual's hearing request to the Office of Hearings and Appeals (OHA) Director who appointed me as Hearing Officer in this case. I convened a hearing in this matter within the time frame prescribed by the regulations governing the administrative review process. See 10 C.F.R. § 710.25(g). At the hearing, the DOE called two witnesses: a DOE personnel security specialist and the DOE consultant-psychiatrist. The individual offered only his own testimony. The DOE submitted 32 exhibits, and the individual tendered none. On July 7, 2000, I received the hearing transcript at which time I closed the record in this case. See 10 C.F.R. § 710.27(e).

II. 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 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, the circumstances surrounding his conduct, to include knowledgeable participation; the frequency and recency of his conduct; the 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.

A DOE administrative 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). Once the DOE has raised a valid security concern, the individual must 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. § 710.27(d). See Personnel Security Hearing, Case No. VSO-0013, 25 DOE ¶ 82,752 at 85,511 (1995) (affirmed by OSA, 1996), and cases cited therein. This standard implies that there is a strong presumption against the granting or restoring of a security clearance. See Department 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) (strong presumption against the issuance of a security clearance).

III. Findings of Fact and Analysis

The individual stipulated to some of the facts in this case but disputes others. First, he stipulated that his personal psychiatrist diagnosed him as suffering from Bipolar I Disorder in 1989. See Response to Notification Letter. Second, he stipulated that he received treatment for his Bipolar I Disorder from 1989 to 1993. Id. Third, he stipulated that during an isolated period of time, August and September 1989, he experienced a defect in his judgment and reliability. Id. The individual attributes the defect in judgment and reliability in 1989, however, to the effects of prescription medication he was taking, not his mental condition. Id.

By the individual’s own admission, he began experiencing emotional problems and making “off-the- wall” statements in 1989. Exhibit 6-1 at 73. In this regard, the individual related that he made the following untrue statements to his supervisors and co-workers during the time frame in question: he was a police informant in a Witness Protection Program; he was attacked by a bear; and he was bitten by a rattlesnake. Id. at 86-87. The individual reports that his employer at the time referred him to a psychologist who, in turn, recommended that he see a psychiatrist. Transcript of Hearing (Tr.) at 58. Instead, the individual sought treatment from his family physician who prescribed a mild tranquilizer for him. Exhibit 6-1 at 74. Subsequently, the individual advised his supervisor that he could not make a logical decision or perform his job duties because of his emotional state. Id. at 74. By way of example, the individual related that on one occasion his supervisor asked him to make 200 copies of a document, but he made 20,000 instead. Id. at 75. Further, he revealed that on days when he got depressed, he simply could not function. Psychiatric Report at 11. He also stated that during this period he was more aggressive than usual, got into verbal arguments and had limited patience. Id. at 13. As an example of his aggressiveness, the individual related that he “body slammed” a person while working under stressful conditions. Tr. at 86-87. The individual’s employer at the time ultimately terminated the individual prior to his completing a probationary period. Exhibit 6-1 at 75.

Shortly thereafter, the individual consulted a psychiatrist (personal psychiatrist) who diagnosed him as suffering from Bipolar I Disorder and prescribed lithium to alleviate the symptoms of the disorder. Id. at 76. According to the individual, his personal psychiatrist advised him he would need to take the medication for the rest of his life. Id. at 88. The individual’s personal psychiatrist left his medical practice in 1993, at which time the individual discontinued his medication on his own and failed to resume treatment with another mental health professional. Tr. at 70-71.

Despite the stipulations he made in his response to the Notification Letter regarding his mental health, the individual maintained at the hearing that he has been misdiagnosed with Bipolar I Disorder and appeared to dispute that he ever suffered from that mental condition. Id. at 54, 75. He suggested instead that the cause of his behavior in 1989 was rooted in years of a deteriorating second marriage that ultimately culminated in divorce. Id. at 54. Moreover, the individual challenges the DOE consultant-psychiatrist’s opinion that he meets the DSM-IV criteria for Bipolar I Disorder, arguing that the DOE consultant-psychiatrist only examined him for 30 minutes and did not conduct any independent tests. Id.

Criterion H

A. Bipolar Disorder I

The evidence in this case overwhelmingly supports a finding that the individual had a mental illness, Bipolar I Disorder, that affected his judgment and reliability in 1989. As an initial matter, the contemporaneous treatment notes from the individual’s personal psychiatrist document the individual’s behavior in 1989 as well as the Bipolar I Disorder diagnosis. Exhibit 3-3. (3)

More than a decade later, the DOE consultant-psychiatrist reviewed the individual’s medical records and obtained additional information during his examination of the individual. The DOE consultant- psychiatrist then opined that the individual suffers from Bipolar I Disorder, Most Recent Episode Mixed.(4) In explaining how the individual’s past behavior fits within the DSM-IV criteria for Bipolar I Disorder, the DOE consultant-psychiatrist pointed out that in 1989 the individual experienced a mixed episode where he manifested rapidly alternating manic and depressive behavior. Tr. at 42. At the hearing, the DOE consultant-psychiatrist explained that when people are manic, they “tend to be grandiose and say things that make them more important or more famous or higher status than they actually are.” Id. at 32. The individual’s admissions that he lied about being a police informant, having been attacked by a bear, and having been bitten by a rattlesnake fall into this category. Also, according to the DOE consultant-psychiatrist, manic people are aggressive. The individual’s admission that he “body slammed” a person while at work certainly demonstrates aggressive behavior. Moreover, the individual’s admission that there were days when he was so depressed he simply could not function at work clearly evidences the individual’s depressive state. Psychiatric Report at 11.

There were times, however, when the individual was extremely productive at work; he even won an employee of the month award in the 1989 time frame. Tr. at 43. At the hearing, the individual asked the DOE consultant-psychiatrist how it was possible for him to suffer from Bipolar I Disorder when he was productive at work during the day and only depressed at home during the night. Id. at 41. The DOE consultant-psychiatrist’s response was insightful. According to the DOE consultant- psychiatrist, a person with Bipolar I Disorder can experience a “mixed episode,” where mania and depression alternate such as mania during the day and depression during the night. Id. As for the individual’s nomination of employee of the month during the period in question, the DOE consultant-psychiatrist explained that it is not uncommon from someone in the manic phase of Bipolar I Disorder to be extremely productive before becoming completely dysfunctional. Id.

Regarding the individual’s concern that the DOE consultant-psychiatrist did not administer any tests to him during the examination, I asked the DOE consultant-psychiatrist at the hearing if any psychological tests such as the Minnesota Multiphasic Personality Inventory II (MMPI-II) would have confirmed his diagnosis of the individual. Id. at 79. The DOE consultant-psychiatrist advised that none of the psychological tests are useful tools in detecting bipolar disorders unless a person is experiencing a “manic episode” at the time the test is administered. Id. By way of explanation, the DOE consultant-psychiatrist stated that because Bipolar Disorder I is an episodic illness, a person can exhibit perfectly normal behavior between episodes. Id. at 23, 26. The difficulty with this mental illness, according to the DOE consultant-psychiatrist, is that it is very unpredictable. Id. at 26. For example, a person without any symptoms of the illness could go to work one day and within hours experience a manic episode, during which the person might exhibit irrational behavior, grandiose thinking, and poor judgment. Id. at 23.

As for the individual’s contention that the DOE consultant-psychiatrist’s opinion is not entitled to much weight because he only examined the individual for 30 minutes, I note that the DOE consultant-psychiatrist stated in the Psychiatric Report that he would ordinarily gather much more additional information from a person during a psychiatric examination but did not do so in this case because so much historical information was available to him in the individual’s Personnel Security File. The DOE consultant-psychiatrist testified that he did elicit a family history from the individual during his examination and learned that the individual’s mother suffered from Bipolar Disorder. Id. at 21. This fact is significant, according to the DOE consultant-psychiatrist, because Bipolar Disorder is highly heritable; approximately one-third of first-degree relatives inherit it. The genetic link to Bipolar Disorder also influenced the DOE consultant-psychiatrist’s opinion regarding the individual’s mental health. Moreover, the DOE consultant-psychiatrist states that he gathered enough information from the individual to characterize the individual’s Bipolar I Disorder as severe, with psychosis.(5)

The DOE consultant-psychiatrist also had the benefit of remaining in the hearing room while the individual testified and was able to comment on the individual’s mental health after listening to him testify. In the end, the DOE consultant-psychiatrist did not change his opinion that, without medication, there is a 50% probability that the individual will experience Bipolar I Disorder again.(6)

Finally, it is important that the individual did not present any expert testimony to refute either the DOE consultant-psychiatrist’s opinion or that of his personal psychiatrist in 1989. Hence, in my view, the record is clear that while the individual currently does not manifest any symptoms of Bipolar I Disorder that he exhibited in 1989, there is a substantial risk he will experience the same severe symptoms of the mental illness again in the future.

B. Judgment and Reliability

The individual does not dispute that his judgment and reliability was impaired in 1989. He has offered conflicting views on the cause of that impairment, however. In the 1999 PSI, the individual attributes the defect in his judgment and reliability to his Bipolar Disorder. PSI Tr. at 88-89. In his response to the Notification Letter, the individual suggested that the defect was the result of his taking a prescription medication. At the hearing, the individual testified that his poor judgment and lack of reliability in 1989 was actually caused by the stress associated with a failing second marriage.

The DOE consultant-psychiatrist addressed both of the individual’s theories. According to the DOE consultant-psychiatrist, “there is no possible way that [the individual’s] rather classic manic behavior can be attributed to taking . . . a mild benzodiazepine tranquilizer.” Psychiatric Report at 12, n. 38. At the hearing, the DOE consultant-psychiatrist explained that benzodiazepines calm people down and are often prescribed as an adjunct treatment for Bipolar Disorder. Tr. at 25. As for the individual’s suggestion that marital stress caused his defect in judgment and reliability, the DOE consultant-psychiatrist testified that “[t]here is no psychiatric evidence that a life event can trigger a manic episode.” Id. at 39. From the record before me, I find that the individual’s mental condition, and no other factor, caused the defect in judgment and reliability he exhibited in 1989.

C. Security Concern

The Personnel Security Specialist testified that a person suffering from Bipolar Disorder is a security concern for several reasons. First, a person with a diagnosed mental condition that may cause a significant defect in the person’s judgment and reliability might willingly or unwillingly engage in behavior that results in the disclosure classified information or special nuclear materials. Id. at 11. Second, a person with such a condition might try to conceal his/her condition, thereby making him/her susceptible to blackmail or coercion. Id. Third, a person with a mental condition could be distracted, prone to error and fail to take into account the consequences of his or her actions. Id.

All these reasons convince me that the DOE properly invoked Criterion H when it suspended the individual’s security clearance. I turn now to a discussion whether the individual has mitigated the DOE’s Criterion H concerns.

D. Mitigation

The individual testified that even though he no longer takes medication or sees a mental health counselor to address whatever illness plagued him in the past, he believes that the divorce from his second wife and physical exercise are rehabilitative factors I should consider. Id. at 74.

At the hearing, the DOE consultant-psychiatrist testified that the individual is in “Full Interepisodic Recovery” from his Bipolar I Disorder. Tr. at 38. When I asked him to differentiate “Full Interepisodic Recovery” from remission, the DOE consultant-psychiatrist replied that the individual is in remission now as well as in “Full Interepisodic Recovery.” Id. The DOE consultant-psychiatrist added, however, that there is a 50% chance he will experience another manic episode because he is not taking medication. Id. at 22, 29. In addition, the DOE consultant-psychiatrist expressed concern that manic episodes can come over persons rapidly and without warning. Id. at 21. The problem with mania, explains the DOE consultant-psychiatrist, is that people experiencing manic behavior seldom seek help because they feel very good and deny there is any problem. Id. at 35. Untreated, a manic episode can last on the average one to three months. Psychiatric Report at 5, n. 15. The DOE consultant-psychiatrist concluded that he is almost certain that if the individual experiences another manic episode he will most definitely exhibit a significant defect in his judgment and reliability again. Tr. at 29.

In evaluating the individual’s eligibility for access authorization, I found the following factors to be in the individual’s favor: (1) by his own account the individual has not experienced Bipolar Disorder in 11 years; (2) it has been seven years since he stopped taking lithium and he apparently has not experienced a manic or depressive episode, both characteristic of Bipolar I Disorder; and (3) the DOE consultant-psychiatrist has opined that the individual’s mental condition is currently in remission.

Weighed against these favorable factors are the following considerations: (1) the individual alternately admitted and denied during the administrative review process that he suffered from Bipolar I Disorder; (2) there is a current medical diagnosis that, without medication, there is a 50% likelihood that the individual’s Bipolar I Disorder may recur even though the individual currently manifests no symptoms of the disorder, and the disorder is in remission; (3) a board-certified psychiatrist has opined that if the individual were to experience another manic episode, he is almost certain that the individual will experience a significant defect in his judgment and reliability; (4) the last defect in judgment and reliability that the individual experienced was severe and had psychotic features; (5) the individual discontinued taking medication to control his Bipolar Disorder in 1993 without consulting with a medical professional in spite of an earlier medical opinion that he would need to take lithium the rest of his life; and (6) the individual is currently not under medical care or taking medication for his Bipolar I Disorder.

In the final analysis, I conclude that the possibility of the individual’s suffering a relapse and the likely consequences attendant such a relapse pose an unacceptable risk to national security. See Personnel Security Hearing, Case No. VSO-0150, 26 DOE ¶ 82,789 (1997), aff’d, Personnel Security Review, Case No. VSA-0150, 27 DOE ¶ 83,002 (1997) (aff’d OSA 1998) (possibility of relapse was too great to allow an individual suffering from Bipolar I Disorder to retain his access authorization); Personnel Security Hearing, Case No. VSO-0082, 25 DOE ¶ 82,800 (1996), aff’d, Personnel Security Review, 26 DOE ¶ 83,016 (1997) (aff’d OSA 1997) (person with Bipolar I Disorder did not show mitigation of Criterion H concerns). I cannot therefore find that “the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest” in this case. See 10 C.F.R. § 710.7(a).

IV. Conclusion

As explained in this Opinion, I find that the DOE properly invoked 10 C.F.R. § 710.8(h) in suspending the individual's access authorization. After considering the totality of the circumstances, I find that the arguments advanced by the individual in his defense do not sufficiently mitigate the security concerns accompanying that criterion. In view of Criterion H and the record before me, I cannot find that restoring the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, in my opinion, the individual's access authorization should not be granted.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that either 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. The party seeking review of the Opinion must file a statement identifying the issues that it wishes to contest 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). Submissions must be served on the

Office of Security Affairs at the following address:

Director

Office of Safeguards and Security, NN-51

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD. 20874

Ann S. Augustyn

Hearing Officer

Office of Hearings and Appeals

Date: August 1, 2000

(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 from time to time in this Opinion as access authorization or security clearance.

(2)Criterion H concerns information that a person “has an illness or mental condition . . . 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).

(3)In October 1989, the individual’s personal psychiatrist diagnosed the individual as suffering from probable bipolar disorder and provided the following information in his notes under the heading, “Objective Findings: distractibility, judgment impaired, inattentive, episodic anger, has racing thoughts, had pressured speech, says and does things he does not remember.” Id. In subsequent medical notes, the individual’s personal psychiatrist diagnosed the individual with Bipolar Mixed Disorder. Id.

(4)The DSM-IV defines Bipolar I Disorder, Most Recent Episode Mixed. as follows:


A. Current (or most recently in a Mixed Episode).

B. There has previously been at least one Major Depressive Episode, Manic Episode, or Mixed

C. The mood episodes in Criteria A and B are not better accounted for by Schizoeffective Disorder and are not superimposed on Schizophrenia, Schizophreniform Disorder, Delusional disorder, or Psychotic Disorder Not Otherwise Specified.

(5)At the hearing, the DOE consultant-psychiatrist explained that the individual’s job termination and his being “out-of-touch” with reality led him to conclude that the individual’s Bipolar I Disorder was severe. Tr. at 36. Further, according to the DOE consultant-psychiatrist, the individual exhibited signs of psychosis in 1989 because he was saying things that were not true. Id.

(6)If the individual were on a prophylactic treatment, such as lithium, the probability of a future manic episode would be 25%, according to the DOE consultant-psychiatrist. Psychiatric Report at 18.