Case No. VSO-0198, 27 DOE ¶ 82,784 (H.O. Goering November 24, 1998)

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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.

November 24, 1998

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing:March 19, 1998

Case Number:VSO-0198

This Opinion concerns the eligibility of XXXXX [hereinafter 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 (DOE) Operations Office pursuant to the provisions of Part 710. Based on the record before me, I am of the opinion that the Individual’s access authorization should not be restored.

I. Background

A. Procedural History

The Individual is an employee of a contractor at a DOE facility. After being informed that the Individual had been admitted to a psychiatric hospital for a 19-day period, the Operations Office conducted a Personnel Security Interview (PSI) with the Individual. See DOE Exhibit 11. Since the security concern remained unresolved after that PSI and after the DOE had reviewed the Individual’s records from the psychiatric hospital, the Operations Office requested that the Individual be interviewed by a DOE consultant psychiatrist [hereinafter DOE psychiatrist]. The DOE psychiatrist interviewed the Individual on November 25, 1997, and issued an evaluation to the DOE on December 29, 1997, in which he concluded that the Individual suffered from Major Depression, Recurrent, In Full Remission, and Personality Disorder, Not Otherwise Specified, With Narcissistic and Borderline Traits. See DOE Exhibit 15. The Operations Office 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 Operations Office suspended the Individual’s access authorization, and obtained authority from the Director of the Office of Safeguards and Security to initiate an administrative review proceeding.

After the Manager of a DOE Operations Office has authorized the suspension of an individual’s access authorization, and has obtained the authority to conduct an administrative review proceeding, the individual is notified of the basis for the suspension and provided “the option to have the substantial doubt regarding eligibility for access authorization resolved in one of two ways: (i) By the Manager, without a hearing, on the basis of the existing information in the case; (ii) By personal appearance before a Hearing Officer (‘a hearing’).” 10 C.F.R. §§ 710.10(b), (d), 710.21(a), (b)(3). “[I]f a hearing is requested, the individual [has] the right to appear personally before a Hearing Officer; to present evidence in his own behalf, through witnesses, or by documents, or both; and, . . . to be present during the entire hearing . . . .” 10 C.F.R. § 710.21(b)(7). The 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 administrative review proceeding in this case began with the issuance of a Notification Letter to the Individual. See DOE Exhibit 1; 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 that derogatory information and informed the Individual that he was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt 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.

At the hearing convened pursuant to 10 C.F.R. § 710.25(e) and (g), the following witnesses testified: the human resources manager for the Individual’s employer, a DOE Personnel Security Specialist, the DOE psychiatrist, a doctor employed by a DOE laboratory, a psychologist employed by the same laboratory [hereinafter the DOE psychologist], a psychiatrist who had treated the Individual during his admission at the psychiatric hospital [hereinafter the Individual’s psychiatrist], a psychologist who evaluated the Individual at the psychiatric hospital [hereinafter the Individual’s psychologist], and four of the Individual’s co-workers. The DOE Counsel submitted 15 exhibits prior to the hearing and one additional exhibit at the hearing. The Individual submitted 21 exhibits at the hearing.

B. The Basis for the DOE’s Security Concern

As indicated above, the Notification Letter issued to the Individual included a statement of the derogatory information in the possession of the DOE that created a substantial doubt regarding the Individual’s eligibility for access authorization. DOE Exhibit 1. In the Notification Letter, the DOE stated that the information indicated 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.” Id.; see 10 C.F.R. § 710.8(h). This statement was based on the DOE psychiatrist’s diagnosis of Major Depression, Recurrent, In Full Remission, and Personality Disorder, Not Otherwise Specified, With Narcissistic and Borderline Traits. DOE Exhibit 15 at 10.

“The 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 considering the question of the Individual's eligibility for access authorization, I have been guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c): 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 voluntariness of the 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; the likelihood of continuance or recurrence; and other relevant and material factors.

After consideration of all the relevant information in the record, I conclude for the reasons set forth in this opinion that the concern raised by the Individual’s illness or mental condition remains unresolved. While the diagnosis of a personality disorder was seriously disputed among the experts who testified at the hearing, and while I ultimately am not persuaded that the Individual has a personality disorder, there is no dispute among the same experts that the Individual experienced a major depressive episode with psychotic hallucinations in the spring of 1997. There is also no dispute that the Individual is at a greater risk for experiencing a similar episode in the future than had he never had such an episode in the past, and that this risk is significantly greater than that for the general population. Finally, there is some disagreement as to whether and how quickly the Individual will seek treatment if and when he experiences a future depressive episode. Nonetheless, though the Individual may immediately seek treatment and not return to his job until after his symptoms subside, there remains a serious risk to the national security when a clearance holder’s judgment and reliability is compromised by mental illness, even if the condition is temporary and takes place away from his place of work. Because of this unresolved concern, it is my opinion that the Individual’s access authorization should not be restored.

II. Analysis

A. Constitutional Due Process Claim

The Individual argues that the “vagueness and ambiguity” of 10 C.F.R. § 710.8(h) and the DOE’s “refus[al] to pay for and produce the two most relevant opinion and fact witnesses,” the Individual’s psychiatrist and psychologist, constitute a violation of the Individual’s due process rights under the United States Constitution. Letter from counsel for Individual to Steven Goering, Office of Hearings and Appeals (October 27, 1998). The Director of OHA has previously addressed the issue of constitutional due process claims raised in the Part 710 proceedings. In a review of a hearing officer’s opinion, he stated,

The constitutional requirements of due process do not apply unless there is a cognizable liberty or property interest in a security clearance. Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990) (Dorfmont). There is no protected property or liberty interest in maintaining a security clearance. Id. at 1403. Accordingly, the court in Dorfmont found that a claim for denial of due process stemming from the revocation of a security clearance is not a colorable constitutional claim. Id. at 1404. Similarly, the claim of denial of due process must be summarily rejected in this case.

Personnel Security Review, Case No. VSA-0121, 26 DOE ¶ 83,014 at 86,596 (1997). Thus, while I note for the record the constitutional claims made by the Individual, I must reject them here for the same reason articulated by the OHA Director.

B. The Diagnosis of Personality Disorder, Not Otherwise Specified

The DOE psychiatrist stated in his December 1997 evaluation that his diagnoses of the Individual were “made according to the standard diagnostic instrument, The Diagnostic and Statistical Manual, Fourth Edition of the American Psychiatric Association (DSM-IV). The diagnostic system lists diagnoses according to five aspects or axes.” DOE Exhibit 15 at 10. The two diagnoses cited by the DOE in its Notification Letter to the Individual fall under Axis I, which as described by the DOE psychiatrist “lists current clinical conditions,” and Axis II, which “lists longstanding personality disorders.” DOE Exhibit 1; DOE Exhibit 15 at 10.

Under Axis II, the DOE psychiatrist diagnosed “Personality Disorder, Not Otherwise Specified, With Narcissistic and Borderline Traits.” DOE Exhibit 15 at 10. He stated that he diagnosed the Individual “as having a Personality Disorder, Not Otherwise Specified, because I felt his personality disorder contained elements of Narcissistic Personality Disorder and Borderline Personality Disorder.” Id. at 12. According to the DSM-IV, the category of Personality Disorder, Not Otherwise Specified, is provided “for two situations,” one being where “the individual’s personality pattern meets the general criteria for a Personality Disorder and traits of several different Personality Disorders are present, but the criteria for any specific Personality Disorder are not met; . . .” DSM- IV at 629. Ultimately, I am not convinced the individual suffers from a personality disorder. I do not reach this conclusion by merely substituting my opinion for that of the DOE psychiatrist, but rather after considering the diversity of expert opinion expressed at the hearing, which I relate in some detail below.

The DSM-IV describes Narcissistic Personality Disorder as a “pervasive pattern of grandiosity (in fantasy or behavior), need for admiration, and lack of empathy, beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of” nine specified criteria. Id. at 12- 13. Of the nine DSM-IV criteria, the DOE psychiatrist determined that the Individual “arguably” met four, described in the evaluation as follows:

His sense of self-importance (criterion 1) was noted in the Rorschach testing done [during the Individual’s spring 1997 hospitalization]. A sense of entitlement (criterion 5) was noted in his attitude in the scheduling and testing process [related to the DOE psychiatrist’s November 1997 evaluation]. Lack of empathy (criterion 7) was noted in the Rorschach Test. His extreme confidence in our evaluation session was remarkable, and fit criterion 9 [shows arrogant, haughty behaviors or attitudes]. However, I did not give [the Individual] the diagnosis of a Narcissistic Personality Disorder since I did not feel enough criteria were met strongly enough. I also felt he had a number of significant problems diagnosed under Borderline Personality Disorder.

Id. at 13.

Borderline Personality Disorder is described in the DSM-IV as a “pervasive pattern of instability of interpersonal relationships, self-image, and affects, and marked impulsivity beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of” nine specified criteria. The DOE psychiatrist found that the Individual met

criteria 5, 8 and 9 for Borderline Personality Disorder. The most important symptoms are the suicidal ideation that recurred at the time of his recent psychiatric hospitalization (criterion 5 [recurrent suicidal behavior, gestures, or threats, or self-mutilating behavior]), and the stress-related psychotic symptoms that occurred at the time of the hospitalization (criterion 9 [transient, stress-related paranoid ideation or severe dissociative symptoms]). Inappropriate intense anger (criterion 8) appears to have been a problem in his second marriage with physical fights, a trip of the wife to the ER, and the wife’s allegation that he may have shot her horse.

Id. at 14.

Based on the testimony of the Individual’s psychiatrist and both psychologists, I have serious concerns regarding the DOE psychiatrist’s diagnosis of personality disorder. The first is the validity of the results of the psychological testing conducted during the Individual’s spring 1997 hospitalization, upon which results the DOE psychiatrist relied in part in making his diagnosis of personality disorder. The Individual’s psychologist, who performed the testing, testified at the hearing that the Individual was being treated for his condition with four drugs during the time the testing was done. Tr. at 89-90. When asked whether these drugs would “affect the validity of the various tests,” the Individual’s psychologist responded,

Well, as you recall if you've reviewed my report, I suggested that we may wish to retest him. I was concerned about him not being stable on his medication, so I suggested that it might be valuable to readminister the testing at a point in time when the stabilization of medication might have taken place. So I was concerned at that time about the effect of those medications, and continue to be concerned.

Tr. at 90. In his contemporaneous evaluation of the testing results, the Individual’s psychologist stated that

the neuropsychological data are equivocal because both [sic] of medication effects and because of [the Individual’s] overall orientation and the attitude toward the psychological testing . . . . [W]hen [the Individual] stabilizes on his medication, it might be valuable to have the neuropsychological screening re-administered in order to determine whether or not these soft signs are in fact indicative of any enduring psychological deficit.

DOE Exhibit 7 at 16.

Since his hospitalization, the Individual has been psychologically tested twice. In both cases, the Individual was given the Minnesota Multiphasic Personality Inventory-2 (MMPI). The first test was given in June 1997, and the DOE psychologist described the results as follows: “Psychological testing would suggest that [the Individual] is coping productively with stress and anxiety. His thought process is clear, he seems not to be depressed and his capacity to control his impulses is adequate.” DOE Exhibit 8 at 1. The second MMPI was given in conjunction with the evaluation by the DOE psychiatrist in November 1997. The results of the test were scored by a psychologist, and the DOE psychiatrist stated in his evaluation that the psychologist’s report “concluded ‘Normal MMPI profile of a very self-assured individual with a strong personality.’” DOE Exhibit 15 at 10. At the hearing, the DOE psychologist agreed with the characterization of the results of both of these tests as “benign.” Tr. at 499.

When asked at the hearing about the MMPI results, the Individual’s psychologist testified that “the idea that his MMPI at that point in time is completely benign strongly suggests that the diagnosis of borderline personality disorder would not at the present time be warranted.” Tr. at 87. The Individual’s psychiatrist expressed a similar opinion. When asked whether the results of the two MMPIs were consistent or inconsistent with the DOE psychiatrist’s diagnosis of personality disorder, the psychiatrist responded, “In general, inconsistent. Most of the time -- I would say a very strong majority of the time -- the personality disorders that he cites, narcissistic and especially borderline, will be quite apparent on an MMPI.” Tr. at 381-82.

Regarding the weight he gave to the results of the most recent MMPI in making his diagnoses, the DOE psychiatrist testified that “the DSM-IV makes no mention whatsoever of MMPI in any of the criteria either to rule in or to rule out any diagnosis made. So you can make DSM-IV diagnoses without relying at all in general on the MMPI or probably any psychological test for that matter.” Tr. at 124-25. He concluded that he does not “put a high amount of weight on the MMPI, but I did feel it was consistent with the diagnoses that I made. It certainly didn't contradict them.” Id. at 125. The DOE psychologist, who administered the June 1997 MMPI, agreed that the DOE psychiatrist’s diagnosis was not necessarily inconsistent with the results of the MMPIs. He expressed his opinion that “that personality disorders can exist and people can answer the MMPI in such a way that those problematic behaviors are not manifested.” Tr. at 510.

Based on the above testimony, I conclude that it is plausible, even though it appears to be uncommon, that an individual can produce two normal MMPIs despite suffering from a personality disorder. My confidence, therefore, in the DOE psychiatrist’s diagnosis is not directly undermined by the MMPI results. Nonetheless, I believe the benign results of the two MMPIs give greater weight to the concern of the Individual’s psychologist that the testing he administered to the Individual during his hospitalization may not reliably reflect an underlying personality disorder. This in turn casts some doubt on the DOE psychiatrist’s diagnosis to the extent that it relied on the results of this testing.

Other equally important concerns regarding the diagnosis were voiced by the DOE psychologist, who explained at the hearing why he did not agree with the DOE psychiatrist’s Axis II personality disorder diagnosis.

[The Individual’s psychiatrist] enumerated four things that had to be in place for a personality disorder to exist, . . . the most important ones of those for me are that, one, the pattern of behavior has to be evident from late adolescence or early adulthood, and I have no information to suggest that's true; it has to be stable over time, I have no information to suggest that's true; but most importantly, those behaviors cannot be better explained by an Axis I diagnosis in order for a person to receive a personality diagnosis, personality disorder diagnosis, and I think there is an argument to be made that the behaviors that [the DOE psychiatrist] slotted, to use your term, into the personality disorder categories could be explained by the major depressive disorder.

Tr. at 512.(2)

I agree with the DOE psychologist that there is a notable lack of evidence in the record pointing to a long-term pattern of behavior indicating a personality disorder beginning in or before early adulthood and remaining stable in the Individual, who is now over 40. Indeed, the characteristics the DOE psychiatrist cited to support his personality disorder diagnosis all seem to have manifested themselves during the Individual’s spring 1997 hospitalization or at most in the last few years. See DOE Exhibit 15 at 13, 14.

After listening to and carefully considering the testimony of two psychiatrists and two psychologists on this issue, I am not persuaded by the DOE psychiatrist’s diagnosis of a personality disorder. The weight of the expert testimony instead points to a diagnosis of only an Axis I disorder, Major Depression, which is discussed next.

C. The Diagnosis of Major Depression, Recurrent, In Full Remission

Under DSM-IV Axis I, the DOE psychiatrist diagnosed the Individual with “Major Depression, Recurrent, In Full Remission.” In contrast to their lack of consensus with regard to the diagnosis of a personality disorder, both psychiatrists and both psychologists who testified agreed that the Individual experienced a major depressive episode in the spring of 1997, see, e.g., Tr. at 87, 126, 418, 511, though there is not a consensus of opinion as to whether this was the Individual’s first depressive episode. See, e.g., id. at 126, 406. There is also no dispute that the Individual’s depressive episode included psychotic features, see, e.g., id. at 91, 312, 378, 488, which the DSM-IV defines as “either delusions or hallucinations (typically auditory),” DSM-IV at 377, although it is disputed whether the Individual experienced psychotic hallucinations prior to his hospitalization or only during the hospitalization. See, e.g., Tr. at 175, 365. More importantly, there is agreement that the Individual is more likely to experience another depressive episode than had he never had such an episode in the past, and that this risk is significantly greater than that for the general population. Tr. at 113, 126, 421-22, 422, 513-14.

Although it is impossible to predict with absolute certainty an individual’s future behavior, as Hearing Officer in this case, I must make a predictive assessment. Personnel Security Hearing, Case No. VSO-0164 (Jan. 12, 1998); Personnel Security Hearing, Case No. VSO-0174 (Jan. 9, 1998); Personnel Security Hearing, Case No. VSO-0146, 26 DOE ¶ 82,788 (1997), aff’d (OSA 1998); see 10 C.F.R. § 710.7(c) (“In resolving a question concerning an individual’s eligibility for access authorization, all DOE officials involved in the decision-making process shall consider . . . the likelihood of continuation or recurrence.”). On this point, the Supreme Court has stated, “A clearance does not equate with passing judgment upon an individual's character. Instead, it is only an attempt to predict his possible future behavior and to assess whether, under compulsion of circumstances or for other reasons, he might compromise sensitive information.” Department of Navy v. Egan, 484 U.S. 518, 528 (1988).

It is my opinion, based on the expert testimony, that the Individual is significantly more likely than a member of the general population to experience a major depressive episode in the future. It is, of course, impossible to know precisely how the Individual will behave at the onset of a future depressive episode. The Individual’s psychologist testified that if the Individual “were in the midst of a major depressive disorder and was at work, he would likely pose a threat, a danger to himself certainly, if not to others.” Tr. at 103. However, both the Individual’s psychiatrist and psychologist have expressed confidence that the Individual will quickly recognize the symptoms of his condition and seek treatment. Tr. at 105-07, 386-87. If that were the outcome, then the risk to the national security would be diminished in that it would be less likely that the Individual’s judgment and reliability on the job would be impaired. Nonetheless, the security risk would not end once the Individual seeks treatment. By virtue of holding a clearance, individuals can become privy to sensitive information that must not be divulged to others, and thus it is critical not just that a clearance holder exercise good judgment and be reliable on the job, but that judgment and reliability be intact off the job as well.

A recurrence of the Individual’s major depressive episode with psychotic features would therefore necessarily pose a significant risk to the national security. During his hospitalization in 1997, the Individual experienced psychotic hallucinations that “gradually disappeared in response to medication,” Tr. at 378, though the hospital records indicate the Individual continued to have hallucinations well into his treatment. See, e.g., DOE Exhibit 7 at 71. While two days after his admission to the hospital, his psychiatrist described the Individual’s judgment as “fair to good” and “relatively intact,” id. at 11, the Individual’s psychologist found in his evaluation of the Individual over one week later

chronic and pervasive problems from rooting perceptual inaccuracy and mediational distortion. This contributes to significant problems in reality testing and often produces behaviors which are surprisingly inappropriate to the situation. He has problems in thinking, in that ideational discontinuity and faulty conceptualization occurs [sic] very frequently in his Rorschach record. This tends to interfere with logic and promotes faulty judgement. Again, the probability of errors in decision making is thus increased significantly.

Id. at 14. I note as discussed above that the psychologist expressed reservations about the diagnostic value of the testing he performed due to the drugs the Individual was taking at the time. Nonetheless, the risk to the national security remains whether the Individual’s faulty judgment results directly from a personality disorder, from the psychotic features of severe depression, or from the drugs necessary to treat hallucinations.

In sum, while there is no way to know for certain whether there will be another depressive episode, or whether the Individual will experience psychotic hallucinations as he did in 1997, the probability of another such occurrence is in my opinion great enough that I do not have the degree of confidence necessary to 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. See Egan, 484 U.S. at 531 (“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”).

III. Conclusion

Upon consideration of the record in this case, I conclude that there is evidence that raises a substantial doubt regarding the Individual’s eligibility for a security clearance, and I do not find sufficient evidence in the record that resolves this doubt. Therefore, because 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, it is my opinion that the Individual’s access authorization should not be restored. 10 C.F.R. § 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 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 J. Goering

Staff Attorney

Office of Hearings and Appeals

Date: November 24, 1998

(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)Significantly, these concerns are referenced in the DSM-IV:

Many of the specific criteria for the Personality Disorders describe features (e.g., suspiciousness, dependency, or insensitivity) that are also characteristic of episodes of Axis I mental disorders. A Personality Disorder should be diagnosed only when the defining characteristics appeared before early adulthood, are typical of the individual’s long-term functioning, and do not occur exclusively during an episode of an Axis I disorder. . . .

. . . .

The clinician must be cautious in diagnosing Personality Disorders during an episode of a Mood Disorder or an Anxiety Disorder because these conditions may have cross-sectional symptom features that mimic personality traits and may make it more difficult to evaluate retrospectively the individual’s long-term patterns of functioning.

DSM-IV at 632.