Case No. VSO-0421, 28 DOE ¶ 82,800 (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: November 30, 2000

Case Number: VSO-0421

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 1987, and was granted a security clearance in 1990. DOE Exhibits 1-17, 1-23. In August 2000, the individual was indicted on a count of Child Abuse and also the same month suffered a manic episode related to his Bipolar Disorder. On September 1, 2000, the DOE conducted a Personnel Security Interview (PSI) with the individual. DOE Exhibit 5-1. 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 October 3, 2000, and thereafter issued an evaluation to the DOE, in which he concluded that the Individual suffered from Bipolar Disorder. DOE Exhibit 3-2. 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 2-2; 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 a DOE personnel security specialist, the DOE psychiatrist, the individual’s current psychiatrist, a co-worker and supervisor of the individual, and the individual.

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 2-3. 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).

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 “definitely has an illness or mental condition, Bipolar I Disorder.(2) The DOE psychiatrist additionally found that the individual’s disorder has caused a significant defect in the individual’s judgment and reliability, referring specifically to the individual’s behavior when he was hospitalized during a Manic Episode in 1985. DOE Exhibit 3-2 at 28.

The individual’s psychiatrist, who testified on the individual’s behalf, also opined that the individual “meets the diagnosis of bipolar disorder.” Transcript of February 13, 2001 Personnel Security Hearing (Tr.) at 74. When questioned at the hearing by the DOE counsel regarding the effect of the individual’s disorder on his judgment, the individual’s psychiatrist testified as follows:

Q.All right. Now, when [the individual], or a patient with his condition is in an episodic state, isn't it true that an individual's judgment would be highly impaired?

A.Again, you know, highly impaired is something that we don't have a scale for that, but I do agree that judgment is usually impaired.

Q.In reviewing the records at the Mental Health Center [where the individual was treated during his manic episode] in August (2000), he was highly impaired, was he not?

A.Well, again, you know that's what I read as well. Again, I was not his doctor on the unit. Again, I agree with you about the possible impairment, and he has been impaired according to the records, yeah.

Q.All right.

A.My point was in relationship to the degree of impairment, and again that's subjective, we don't have a scale that measures that, so it becomes sort of a clinician assessment.

Q.But if you're working with a mental health center as you do, and you read the records that indicate that he had to be restrained, then that indicates impairment, does it not? Isn't that more objective?

A.Yes, definitely, you know, restraint and psychotic state, which bipolar disorder tends to provoke in people, definitely, definitely lowers the judgment and the insight, and so I agree with you on that.

Tr. at 82-83. There appears to be no dispute between these two experts that the individual suffers from bipolar disorder and that the disorder has, when the individual was in the midst of a manic episode, significantly impaired his judgment.

The relevance of this disorder to the individual’s eligibility for access authorization lies in the effect the disorder may have on his future behavior. Although it is obviously impossible to predict future behavior with certainty, 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).

The individual is currently taking medication (lithium) that, in the opinion of both experts, can significantly reduce the chance of a future manic episode. However, even with this medication, the DOE psychiatrist estimates that the individual has a 25 percent chance of experiencing a manic episode within the next five years, Tr. at 23, and the individual’s psychiatrist quantified the chance of a future manic episode as “most probably” between 30 and 40 percent. Tr. at 84. It is, of course, impossible to know precisely how the Individual will behave at the onset of a manic episode. If the Individual were to quickly recognize the symptoms of his condition and seek treatment, 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 there. 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. Given the DOE psychiatrist’s characterization of the individual’s disorder as “severe,” Tr. at 24, and the individual’s psychiatrist’s reference to the “psychotic state [that] bipolar disorder tends to provoke in people,(3) a recurrence of a manic episode would necessarily pose a significant risk to the national security.

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.” 10 C.F.R. § 710.8(l). The facts alleged by the DOE under this criteria stem primarily from the individual’s mental condition.

In addition, the notification letter states that on August 9, 2000, the individual was indicted on one felony count of Child Abuse. DOE Exhibit 2-2 at 3-4; DOE Exhibit 6-4. While the individual was eventually found, after a trial, to be not guilty of the charge, the security concern raised by a criminal charge relates to the circumstances that led to the charge, rather than to the outcome of any subsequent criminal proceeding. As such, this incident raises a valid security concern under Criterion (l) in regard to the individual’s judgment, and the individual’s explanation of the events in question(4) does not mitigate that concern.

Apart from the charge of child abuse, the primary security concern under Criterion (l) is raised by a mental condition that is outside of the individual’s control, at least to the extent that his medication can reduce the risk of a future manic episode to no lower that 25 percent within the next five years. While there is no way to know for certain whether there will be another manic episode, 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”).

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

Staff Attorney

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)” DOE Exhibit 3-2 at 27. The DOE psychiatrist explained in his report that there “is a closely related illness/mental condition, Bipolar II Disorder. The difference is that in Bipolar II Disorder . . . , ?There has never been a Manic Episode.’ Since the subject has had a Manic Episode, he has Bipolar I rather than Bipolar II Disorder.” Id. That the Individual has had a Manic Episode is not in dispute.

(3)” Tr. at 83. The individual testified at the hearing that, based on his personal experience, lithium would help reduce the severity of a manic episode were it to occur. Tr. at 110-11. However, the individual presented no expert testimony or other evidence to support this claim, and when I addressed this question to the DOE psychiatrist, he responded that “it's hard to control for it, because manic episodes vary from episode to episode. And if somebody is on Lithium and a certain degree manic, how would you know if they weren't on Lithium they would be more manic, so I would say it's hard to answer that question.” Tr. at 44. The DOE psychiatrist added that “people have been very manic, I mean, all of the behavior that is described at the mental health center when he was off of Lithium, all psychiatrists have seen patients that manic on Lithium.” Id.

(4)The individual provides an account of his daughter suffering a bone fracture while he was trying to move her away from him so that he could talk on the phone undisturbed. DOE Exhibit 5-1 at 77 (“I put the phone down and I grabbed [my daughter] and I kind of swung her because I was trying to put her, I don’t know why, but I was physically trying to relocate her so I could hear the other, what [the person on the phone] was saying.”). What the individual’s account does not dispute is that he took actions resulting in physical injury to his daughter. Whether or not it was the intent of the individual to cause the injury, the fact that injury resulted under these circumstances raises questions regarding the individual’s judgment in this instance. Moreover, my conclusion that the individual at the very least exercised poor judgment on this occasion is in no way incompatible with the finding of the jury in the individual’s criminal case that he was not guilty, given that the jury could only find guilt if it was convinced of such beyond a reasonable doubt.