Case No. VSO-0438, 28 DOE ¶ 82,802 (H.O. Goering June 8, 2001)

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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.

June 8, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: March 12, 2001

Case Number: VSO-0438

This Opinion concerns the eligibility of XXXXX (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." The individual’s access authorization was suspended by the Manager of a Department of Energy Operations Office (DOE) pursuant to the provisions of Part 710. For the reasons stated below, I cannot recommend that the individual’s access authorization be restored at this time. 10 C.F.R. § 710.27(a).

I. Background

The individual is an employee of a contractor at a DOE facility. He has been employed at the facility since 1996, and was granted a security clearance in 1998. Transcript of May 2, 2001 Personnel Security Hearing (Tr.) at 70. On May 23, 2000, the individual was arrested for Domestic Violence. This arrest led the DOE to conduct a Personnel Security Interview (PSI) with the individual on July 11, 2000. See DOE Exhibit 13. Because the derogatory information remained unresolved after that PSI, the DOE requested that the individual be interviewed by a board-certified psychiatrist (DOE psychiatrist). The psychiatrist interviewed the individual on August 18, 2000, and thereafter issued an evaluation to the DOE, in which he concluded that the Individual suffered from “a personality disorder, not otherwise specified.” DOE Exhibit 8. The DOE ultimately determined that the derogatory information concerning the individual created a substantial doubt about his eligibility for an access authorization, and that the doubt could not be resolved in a manner favorable to the individual. Accordingly, the DOE suspended the individual’s access authorization, and obtained authority from the Director of the Office of Safeguards and Security to initiate this administrative review proceeding.

The administrative review proceeding began with the issuance of a Notification Letter to the individual. DOE Exhibit 4; see 10 C.F.R. § 710.21. That letter informed the individual that information in the possession of the DOE created a substantial doubt concerning his eligibility for access authorization. The Notification Letter included a statement of the derogatory information and informed the individual that he was entitled to a hearing before a Hearing Officer regarding his eligibility for access authorization.

The individual requested a hearing, and the DOE forwarded the individual’s request to the Office of Hearings and Appeals (OHA). The Director of OHA appointed me as the Hearing Officer in this matter. Prior to the hearing, counsel for the DOE submitted exhibits. Testifying at the hearing were the DOE psychiatrist, the individual, and his wife.

II. Analysis

The derogatory information cited in the Notification Letter issued to the Individual falls within the ambit of two regulatory criteria, paragraphs (h) and (l) of 10 C.F.R. § 710.8. DOE Exhibit 3. In the Notification Letter, the DOE stated that the information indicated that the Individual (1) “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” and (2) “has engaged in unusual conduct or is subject to circumstances which tend to show that he is not honest, reliable, or trustworthy; or which furnishes reason to believe that he may be subject to pressure, coercion, exploitation, or duress which may cause him to act contrary to the best interests of national security.” Id.; see 10 C.F.R. § 710.8(h), (l).

The following events relevant to the present case are not in dispute:

DOE Exhibit 4 at 8-9.

A. Security Concerns Cited Under 10 C.F.R. § 710.8(h)

Criterion (h) pertains to information that a person 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 his report, the DOE psychiatrist found that the individual does have such a mental condition. DOE Exhibit 8 at 1. As noted above, the DOE psychiatrist concluded that, “[d]iagnostically, the mental condition would be that of a personality disorder, not otherwise specified, . . .” Id. at 3. The report states,

What is of concern is this succession of arrests stemming back over the last ten years. I have no indication that they are propelled by a drinking problem on the part of [the individual]. However, he has managed to be in two marriages which have become stormy. He is on his second round of counseling. This is taking on the aspects of a pattern and one cannot be sure that he will not be in this situation again and again and again. This is not to say that he is guilty of the violence - it is to say, however, that he has gotten himself repeatedly into situations where he comes before a judge. It is for this reason that I administered the [Minnesota Multiphasic Personality Inventory-2 (MMPI-2), a psychological test], in order to see if I could detect anything which would indicate why this happens.

Id. at 2-3. The psychiatrist stated that the results of the MMPI-2 were “only marginally valid because it was apparent that [the individual] was presenting himself in an unusually favorable light.” Id. at 3. The psychiatrist found that the individual’s MMPI-2 score suggests that he “is somewhat immature, a risk taker, and may be narcissistic and manipulative.” Id. The individual also scored “quite high” on “a scale that generally measures over controlled hostility.” Id.

The psychiatrist testified as follows regarding his conclusions:

The best I could come up with, which is an unsatisfactory diagnosis because it is kind of a catch-all, is personality disorder not otherwise specified. And by this I mean that is does seem to me, in my view, that he does have a personality disorder which gets him into these situations, but I don’t have the data to say it’s particularly this kind or this kind or this kind.

Tr. at 16. When asked whether the personality disorder would affect the individual’s judgment and reliability, the psychiatrist responded,

I don’t know that the personality disorder would affect that, but I think the personality disorder might very well lead to future situations such as have been four times now in the past, which might cause him to act, could cause him to act in the way of saying I’m going to be in real trouble now. Which might cause him to or could cause him to get into a situation once again, or twice again, or who knows how many times again, where he would have to kind of weigh his options and say, or could be put under pressure, let us say, to reveal things that he should not reveal. You get repeated arrests again and again and again, you are in trouble.

. . . .

There are many people with personality disorders NOS, not otherwise specified. We all have our quirks and the condition itself does not cause. The condition, however, in my view, puts him in a situation where he may have to do that. There is a causal chain there. It is not quite like somebody who is manic and the condition then causes them to be very grandiose and start bragging about all these things he knows about. It is not that close. It is a chain thing.

Tr. at 16-17, 20.

Finally, the following portion of the DOE psychiatrist’s testimony addressed whether he stood by the conclusions reached in his written report.

Q[uestion by DOE Counsel:] [T]he regs say, and the question put to you was; Does [the individual] have an illness or mental condition which causes or may cause a significant defect in his judgment or reliability. And you had said [in your report], I answer the question in the affirmative. Do you still stand by that or are you now saying, well, it is not his personality disorder, it is just that he could get into these situations?

A[nswer by DOE psychiatrist:] I answered the question in the affirmative with my understanding of the causal chain. If the causal chain is not operative then I have no data to answer the question in the affirmative, it is as simple as that.

Tr. at 25. The DOE psychiatrist’s “understanding of the causal chain” appears to me to be perfectly reasonable. He has concluded that the individual suffers from a personality disorder, and reasons that this mental condition could “cause him to get into a situation once again, or twice again, or who knows how many times again, where he would have to kind of weigh his options and say, or could be put under pressure, let us say, to reveal things that he should not reveal.” Tr. at 16-17. This theory is supported by the fact, as discussed below in section II.B, that the individual has on at least one occasion failed to report a criminal charge to the DOE. I am persuaded by the psychiatrist’s reasoning, therefore, that the individual has a mental condition that causes, or may cause, a significant defect in judgment or reliability.

The individual does not directly dispute the diagnosis of the DOE psychiatrist, and in fact admits that there “is a pattern, and I can see DOE’s concern. It is embarrassing. It’s embarrassing for me personally and I can see a pattern. I really would like for this to stop.” Tr. at 69. The individual also presented a letter from a social worker who counseled him and his wife after the most recent incident of domestic violence. The letter states that the individual

was a self-referral to the Employee Assistance Program that has a contract with [the individual’s employer] to provide said services. [The individual] participated in individual counseling as well as conjoint counseling with his wife. The sessions were concluded, as both believed that the marriage had improved. They are better able, they stated, to manage their difficulties in a more appropriate manner.

DOE Exhibit 14.

While I commend the individual for his attempts to overcome his problems, the individual has not presented any evidence that would lead me to dispute the diagnosis of the DOE psychiatrist, or to demonstrate that he no longer suffers from the personality disorder with which he has been diagnosed.(2)

B. Security Concerns Cited Under 10 C.F.R. § 710.8(l)

Criterion (l) concerns information that an individual has “[e]ngaged in any unusual conduct or is subject to any 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. Such conduct or circumstances include, but are not limited to, criminal behavior, a pattern of financial irresponsibility, or violation of any commitment or promise upon which DOE previously relied to favorably resolve an issue of access authorization eligibility.” The facts alleged by the DOE under this criteria, the repeated events leading to criminal charges as set forth above, are essentially the same as those that formed the basis for the diagnosis of the DOE psychiatrist.

First, I note that in the case of four of the five criminal charges brought against the individual, the charges were ultimately dismissed. This fact is not particularly helpful to the individual, however. The security concern raised by a criminal charge relates to the circumstances that led to the charge, rather than the outcome of any subsequent criminal proceeding. This is particularly true in the present case where there is an acknowledged pattern of these circumstances recurring.

The individual has related his side of the events that led to the various criminal charges at issue. He has also presented the testimony of his current wife regarding the two most recent charges. Tr. at 27-41. The testimony of the individual and his wife, who appeared to me to be testifying truthfully, puts the events in question in a light relatively favorable to the individual. The individual appeared particularly sensitive about being tagged with the stereotype of an abusive husband. “As far as me going out and being this abusive husband . . . , that is not me. That’s not me. It might sound like denial, but that is not me in these cases.” Tr. at 70.

However, the purpose of this proceeding is not to assign moral fault or even criminal liability to the individual, but rather to evaluate the security concerns raised by the individual’s behavior. And the security concern I find echoes, from a lay perspective, the following testimony of the DOE psychiatrist:

This essentially was my concern that if he continues this pattern and it may well be that he does not know how he gets into these situations, I certainly do not know, but I do see a pattern and have to wonder whether this is going to continue. And with repeated arrests, one could, in my view, at least, very easily get into a situation where one might feel compromised in terms of having to keep secrets.

Tr. at 14. The analysis here would be easier were there a pattern of willful disregard of the law by the individual, since the DOE must rely on clearance holders to scrupulously follow rules and regulations. But the concern in the present case is almost the opposite--the apparent lack of willfulness, or lack of control over the occurrence of these events in the individual’s life. This raises concerns that go directly to the reliability of the individual.

Moreover, the concern that the individual may be reluctant to report such an event to the DOE is not merely speculative. The individual failed to report his 1998 vandalism charge and the DOE only learned of the charge through a report in a local newspaper. DOE Exhibit 4 at 8. The individual claims that he did not realize he had been charged, but this claim strains credulity. During the PSI at which the individual was confronted with the DOE’s knowledge of the charge, the following exchange occurred:

Q.So you go down [to the police station] and you give them your side of the story and, and the officer says, “We’re going to defer this.”

A.Right.

Q.OK. Now is that what he told you when you were at the Police Station?

A.No. He just said, “Well, you’re going to go to court for it.”

Q.OK. So now when did you go to court?

A.Uh, I think a, a week or two afterwards.

Q.OK.

A.And then after I went to court, I think that’s when I went to [a security official] and just told him, I said, “I wasn’t charged with anything.” I honestly thought I wasn’t charged with anything. I thought I just paid the court costs because they were just going to throw it out. They said, “You pay this, we’re going to defer it. It’s just a derferation (sic),” you know.

Q.OK. Well, that’s what I...

A.Just don’t get in any trouble in here.

Q.OK. So you went to court. You were charged then?

A.Well, yes, and I really wasn’t aware of it honestly. I really wasn’t aware of it.

DOE Exhibit 12 at 10. From someone who had faced criminal charges on three prior occasions, this explanation from the individual does not ring true. And the two-month interval between the time the individual was charged and the PSI at which he was confronted with the charge provides a textbook example of one of the concerns cited under Criterion L. Whenever a clearance holder does not fully disclose pertinent personal information to the DOE, that individual leaves himself “subject to pressure, coercion, exploitation, or duress which may cause the individual to act contrary to the best interests of the national security.” 10 C.F.R. § 710.8(l).

In sum, the pattern of the individual’s past behavior raises legitimate concerns regarding the individual’s future reliability. Therefore, I cannot conclude that restoring the individual’s “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), 710.27(a).

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 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, SO-21

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874-1290

Steven J. Goering

Hearing Officer

Office of Hearings and Appeals

Date: June 8, 2001

(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.

(2) In fact, the DOE psychiatrist testified, “Personality disorders tend to be, they are patterns of relating to people and so on, that tend to be enduring. That does not mean that they will always manifest themselves in the same way. I think there is enough suggestion here, at least to raise that possibility that it will be enduring because he has had this pattern despite counseling and so on.” Tr. At 22-23.