PSH-11-0001

* 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 XXXXXX’s.
United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
)
Filing Date: October 14, 2011 )
) Case No.: PSH-11-0001
_________________________________________ )
Issued: February 16, 2012
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Hearing Officer Decision
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Richard A. Cronin, Jr., Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXXXXXXXX (“the Individual”) to
hold a Department of Energy (DOE) access authorization.1 This Decision will consider whether,
based on the testimony and other evidence presented in this proceeding, the Individual’s
suspended DOE access authorization should be restored. For the reasons detailed below, I find
that the DOE should not restore the Individual’s access authorization at this time.
I. BACKGROUND
The Individual is employed by a DOE contractor and has held a DOE access authorization for a
number of years. Exhibit (Ex.) 18 at 8. During the period August 2009 through November 2009,
the Individual went to his office in a secured building late at night during non-duty hours. Ex. 15.
Further, the Individual had made several unauthorized purchases from his government-issued
credit card during that period. Ex. 15. In explaining these events to his superiors, the Individual
asserted that the incidents were a result of his experiencing a manic episode of his Bipolar
Disorder. Ex. 15 at 7. This disclosure prompted the Local Security Office (LSO) to conduct a
January 2010 Personnel Security Interview (2010 PSI) with the Individual. Ex. 20. After the PSI,
the LSO referred the Individual to a DOE consultant-psychiatrist (DOE Psychiatrist) for an
evaluation. The DOE Psychiatrist examined the Individual in July 2011 and issued a report
(Report). Ex. 3.
1 Access authorization, also known as a security clearance, is an administrative determination that an individual is
eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5.
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After reviewing the Individual’s personnel security file, the LSO informed the Individual in an
August 2011 Notification Letter that there existed derogatory information that raised security
concerns under 10 C.F.R. § 710.8 (h) and (l) (Criteria H and L, respectively). See Ex. 1
(Notification Letter). The Notification Letter also informed the Individual that his security
clearance was being suspended and that he was entitled to a hearing before a Hearing Officer in
order to resolve the security concerns. Id.
The Individual requested a hearing on this matter. Ex. 2 at 8. The LSO forwarded his request to
the Office of Hearings and Appeals, and I was appointed the Hearing Officer. At the hearing, the
DOE counsel introduced 27 exhibits into the record (Exs. 1-27) and presented the testimony of
two witnesses, a personnel security specialist and the DOE Psychiatrist. The Individual,
represented by counsel, presented his own testimony, as well as the testimony of three witnesses:
his counselor (Counselor), and two supervisors (Supervisors 1 and 2). See Transcript of Hearing,
Case No. PSH-11-0001 (hereinafter cited as “Tr.”) The Individual also tendered 26 exhibits, Exs.
A-Z, including a statement from his treating psychiatrist (Individual’s Psychiatrist), Ex. Y.
II. REGULATORY STANDARD
The regulations governing the Individual’s eligibility for access authorization are set forth at
10 C.F.R. Part 710, “Criteria and Procedures for Determining Eligibility for Access to Classified
Matter or Special Nuclear Material.” The regulations identify certain types of derogatory
information that may raise a question concerning an individual’s access authorization eligibility.
10 C.F.R. § 710.10(a). Once a security concern is raised, the individual has the burden of
bringing forward sufficient evidence to resolve the concern.
In determining whether an individual has resolved a security concern, the Hearing Officer
considers relevant factors, including the nature of the conduct at issue, the frequency or recency
of the conduct, the absence or presence of reformation or rehabilitation, and the impact of the
foregoing on the relevant security concerns. 10 C.F.R. § 710.7(c). In considering these factors,
the Hearing Officer may consult adjudicative guidelines that set forth a more comprehensive
listing of relevant factors. See Revised Adjudicative Guidelines for Determining Eligibility for
Access to Classified Information (issued on December 29, 2005 by the Assistant to the President
for National Security Affairs, The White House) (the Adjudicative Guidelines).
Ultimately, the decision concerning eligibility is a comprehensive, common-sense judgment
based on a consideration of all relevant information, favorable and unfavorable. 10 C.F.R.
§ 710.7(a). In order to reach a favorable decision, the Hearing Officer must find that “the grant or
restoration of access authorization to the individual would not endanger the common defense and
security and would be clearly consistent with the national interest.” 10 C.F.R. § 710.27(a). “Any
doubt as to an individual’s access authorization eligibility shall be resolved in favor of the
national security.” Id. See generally Dep’t of the Navy v. Egan, 484 U.S. 518, 531 (1988)(Egan)
(the “clearly consistent with the interests of national security” test indicates that “security
clearance determinations should err, if they must, on the side of denials”).
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III. FINDINGS OF FACT AND ANALYSIS
A. Whether the LSO Properly Invoked Criteria H and L
1. The Individual’s History of Psychiatric Illness
The Individual was first diagnosed as suffering from Bipolar Disorder in 1995 and suffered from
acute manic episodes of Bipolar Disorder in 1989, 1995, 2000 and 2009.2 Ex. 5 at 2; Ex. 3 at 1.
Following his examination of the Individual, the DOE Psychiatrist confirmed the Individual’s
diagnosis of Bipolar-I Disorder. Ex. 3 at 2. In determining whether the Individual’s illness could
cause a significant defect in judgment and reliability, the DOE Psychiatrist, in his report, noted
that the Individual had, at times, discontinued certain medications and refused treatment on the
occasions when a manic episode would erupt. Ex. 3 at 2-3. In 2002, the Individual assured the
LSO that his social support network and his church bishop would provide a “profound kind of
guarantee” that he would stay the course of treatment. Ex. 3 at 3. However, in 2009, the
Individual misinterpreted attempts by his wife and his then-psychiatrist to get the Individual to
seek additional help for his manic episode. Ex. 3 at 3. Given that fact, the DOE Psychiatrist was
not confident that the Individual would seek prompt treatment for a future episode of mania. Ex.
3 at 3. Thus, the DOE Psychiatrist concluded that a manic episode of the Individual’s Bipolar
Disorder could cause a significant defect in judgment and reliability. Ex. 3 at 3.
2. The Individual’s History of Financial Irresponsibility and Unusual Conduct
During a 1991 DOE-sponsored psychiatric evaluation, the Individual admitted that, during a
1989 manic episode, he went on a spending spree. Ex. 6 at 2. A 1990 credit report indicated that
the Individual had credit accounts totaling $126,962.3 Ex. 25 at 310-33. A 1996 credit report
indicated that the Individual had a credit balance of $88,961 of which there were 17 recently
opened accounts with credit balances totaling $49,000. Ex. 25 at 238-44. In late 2000, the
Individual had two vehicles and a motorcycle voluntarily repossessed. The Individual filed for
Chapter 7 bankruptcy in February 2001. Ex. 25 at 40-41,159. During a 2001 OPM investigation,
the Individual admitted that the bankruptcy was the result of unwise expenditures he made
during his 2000 manic episode. Ex. 25 at 140, 145. In a PSI conducted in 2002, the Individual
admitted that, during his 2000 manic episode, he lacked financial judgment. Ex. 21 at 85-86.
During his 2009 manic episode, the Individual purchased a truck to live in because of his recent
decision to separate from his wife. Ex. 20 at 54. Because his wife kept his credit cards and check
book during this episode, the Individual began to run out of money and ultimately used his
government credit card to rent hotel rooms and to pay for personal expenses. Ex. 20 at 76-82,
111-17. During the 2010 PSI, the Individual admitted that, during the 2009 manic episode, he
2 As recorded above, the Individual was first diagnosed as suffering from Bipolar Disorder in 1995. However, the
Individual believes he suffered a manic episode in 1989. The DOE Psychiatrist accepts the Individual’s belief that
he did, in fact, suffer a manic episode in 1989. Ex.3 at 1.
3 The Notification Letter identified this credit report as having been obtained in 1989 and showing credit accounts
totaling $130,717. Ex. 1 at 6.
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had made “wacky” purchases such as buying multiple items regardless of his actual need for the
item. Ex. 20 at 54. Additionally, during this manic episode, the Individual, while on scheduled
leave, would come to his office in a classified facility late at night to bring and store boxes of
books and to check E-mails. Ex. 20 at 61-63. When asked about these incidents in the 2010 PSI,
the Individual admitted that he had made bad choices and possessed sub-standard judgment
during the 2009 manic episode. Ex. 20 at 78.
3. The Associated Security Concerns
Criterion H concerns information that a person has “an 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). It is well established that “certain emotional, mental, and personality
conditions can impair judgment, reliability, or trustworthiness.” Adjudicative Guidelines,
Guideline I. Conduct involving such psychological conditions can raise questions about an
individual’s ability to protect classified information. Personnel Security Hearing, Case No. TSO-
1013 (July 19, 2011) (Bipolar Disorder found to raise security concerns). In light of the DOE
Psychiatrist’s determination that the Individual suffers from Bipolar Disorder, a condition that
may cause a significant defect in the Individual’s judgment and reliability, the LSO had
sufficient grounds to invoke Criterion H.
Criterion L concerns circumstances tending 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.” 10 C.F.R. § 710.8(l). It is well-established that financial
irresponsibility raises doubts as to an individual’s honesty, reliability and trustworthiness, and
raises security concerns under Criterion L. See Adjudicative Guidelines, Guideline F, ¶ 18 (the
“failure or inability to live within one's means, satisfy debts, and meet financial obligations may
indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations
all of which can raise questions about an individual's reliability, trustworthiness and ability to
protect classified information.”); Personnel Security Hearing, Case No. TSO-0507 (October 31,
2007). Similarly, other conduct casting doubt on an individual’s willingness to comply with rules
or regulations – in this case, improper use of his DOE-issued credit card and his admissions of
periods of exercising questionable judgment – also calls into question an individual’s honesty,
trustworthiness, and reliability. See Adjudicative Guidelines, Guideline E, ¶ 16(c). Given the
Individual’s admitted bouts of excessive financial indebtedness, his misuse of his DOE-issued
credit card and his admissions of past poor choices and substandard judgment, the LSO had
sufficient grounds to invoke Criterion L.
B. Whether the Individual Has Mitigated the Security Concerns
As an initial matter, I find that the Criterion L derogatory information cited by the LSO has its
origins in, and is intimately connected to, the Individual’s Bipolar Disorder. The evidence in the
record indicates that the individual’s financial irresponsibility and other questionable activities
occurred when the Individual was suffering from a manic episode of his Bipolar Disorder and
were a direct result of these episodes. See Tr. at 143-46, 163, 205. Consequently, I need only
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consider if the Individual has resolved the Criterion H concerns. If the Individual resolves the
Criterion H concerns, then it is unlikely that the type of Criterion L behavior detailed in the
Notification Letter will reoccur. Conversely, if I find that the Individual has not resolved the
Criterion H concerns related to his Bipolar Disorder, I cannot find that the Criterion L concerns
have been resolved.4
At the hearing, the Individual sought to present evidence indicating that the risk that he would
have another manic episode is low. The Individual asserts that the 2009 manic episode was
induced from a new medication, Vyvnase, and that, given the pattern of his manic episodes,
another episode may not occur until after his retirement or may never occur. The Individual also
denied at the hearing that he stopped taking medication without consulting his physician.
Further, the Individual presented evidence that, should he experience another manic episode, a
four-person “intervention” team would intervene to ensure that he would receive immediate,
effective treatment for the episode. The Individual also presented evidence to demonstrate his
excellent work performance and to establish the fact that, even while suffering from a manic
episode, he committed no breaches of security. A summary of the relevant testimony is presented
below.
The Individual presented a written statement from his psychiatrist (Individual’s Psychiatrist)
stating that the Individual has been highly adherent to his treatment plan and has gone to great
lengths to minimize the risk of a recurrent manic episode. Ex. Y at 2. Because of these efforts,
the Individual’s Psychiatrist believes that the risk of the Individual having a future severe manic
episode is greatly reduced and that the time between manic episodes will likely be extended. Ex.
Y at 2.
The Individual’s Counselor testified that the Individual has adopted the practice of performing a
daily check of his thinking and mood so as to detect problems earlier. Tr. at 82. In their meetings,
the Counselor watches the Individual closely for changes in behavior. Tr. at 83. Overall, the
Counselor assessed the Individual’s condition as “stable” and notes that, despite the increased
stress associated with the suspension of his security clearance, the Individual has not experienced
another manic episode. Tr. at 88.
The Individual testified that, to prevent the difficulties that arose from his last manic episode, he
has created an intervention team of four individuals who are charged with confronting him
should he suffer from another manic episode. Tr. at 137, 140-41. The Individual’s bishop, the
Individual’s Psychiatrist, Counselor and Wife are members of the intervention team. Tr. at 141.
The Individual sent a letter to each of these four individuals requesting that they personally
intervene if the Individual demonstrates any unusual behaviors. Tr. at 141; Ex. J. Attached to the
letter is a list of manic and hypomanic symptoms for their reference and an internet article
regarding an actor suspected of suffering from Bipolar Disorder. Tr. at 141. The Individual
believes that if his intervention team confronts him with his letter and the attached article, it
would be hard for him to refuse to seek immediate medical help. Tr. at 141. Unlike the result
4 The Individual submitted evidence of his subsequent payment of the debts referenced in the Notification Letter.
Exs. D, E, K, M. However, as described above, I find that his financial problems are connected to his Bipolar
Disorder and that, should another manic episode occur, the Individual would be at significant risk for future bad
financial judgments.
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from his Wife’s intervention attempt in 2009, he would find it impossible to deny that he was in
the midst of a manic episode. Tr. at 142.
The Individual also testified that, as an added precaution, he has given his Wife a power of
attorney that will allow her to make decisions for him in the event of a future manic episode. Tr.
at 142. Additionally, the Individual’s Psychiatrist has assured the Individual that, if the
Individual was a “danger in any way,” she would ensure that the Individual received treatment in
a hospital. Tr. at 142.
Supervisors 1 and 2 testified as to the Individual’s excellent work performance for a number of
years. Tr. at 54, 56, 69-71. Neither supervisor would have doubts regarding the Individual’s
future performance or ability to protect classified information, despite their knowledge of the fact
that the Individual’s Bipolar Disorder could reoccur. Tr. at 56-57, 71-72. Both Supervisors
recommended that the Individual’s security clearance be restored. Tr. at 60, 71-72. In addition to
testimony from the Supervisors regarding the Individual’s ability to protect classified
information, the Individual elicited testimony from the personnel security specialist confirming
that during the 2009 manic episode the Individual did not compromise classified materials. Tr. at
35. The Individual also submitted ten letters from friends and individuals who have worked with
him, attesting to the Individual’s good character and their confidence that the Individual would
not endanger classified materials. Ex. I.
After listening to all of the witnesses, the DOE Psychiatrist testified as to his current assessment
of the Individual. The DOE Psychiatrist testified that, should the Individual suffer another manic
episode, it would be likely that the Individual’s judgment and reliability would be impaired. Tr.
at 191. The DOE Psychiatrist was unable to provide an estimate of the probability that the
Individual would suffer another manic episode. Tr. at 192. The DOE Psychiatrist commented
that it is “not unusual” that individuals suffering from Bipolar Disorder will begin to feel well
and decide on their own not to continue taking medication. Tr. at 192. While the Individual has
instituted a “remarkable” regimen to prevent future manic episodes, the DOE Psychiatrist
testified that he could not be certain that the Individual’s regimen would prevent another manic
episode. Tr. at 193. 5
Given the evidence submitted in this case, I find that the Individual has not resolved the Criterion
H security concerns raised by the Individual’s Bipolar Disorder. With regard to the Individual’s
arguments regarding the scant likelihood that he would have a future manic episode, I find these
arguments unavailing. Both the Individual’s Psychiatrist and the DOE Psychiatrist have stated
that it is impossible to predict with certainty whether the Individual will suffer a future manic
5 The Notification Letter alleges that, in the past, the Individual, on his own, stopped taking prescribed medication
for his illness. See Ex. 1 (Summary of Security Concerns – Sections I.L (stopped taking Vyvnase), I.M (stopped
taking Carbitrol), and I.O (Stopped taking Depakote)). The Individual disputes these allegations and testified that
either he did not in fact stop taking the medication (Carbitrol) or he stopped taking the medication with his
physician’s consent. Tr. 135-36, 139 (Carbitrol); Ex. B (prescription records); Tr. at 156-57 (Depakote). With regard
to Vyvnase, a medication for Attention Deficit Disorder, the Individual stopped taking the medication because of the
severe side effects. Tr. at 139. The Individual testified that he now knows not to stop taking medication without
consulting a physician. Tr. at 139. The DOE Psychiatrist testified, however, that the fact that the Individual
continued taking all of his medications in 2009, but yet still suffered a manic episode in 2009, supports a finding that
the Individual may suffer future bouts of mania. Tr. at 193-94.
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episode. Ex. Y at 1 (Individual “could have many years without an incident” but also stating that
the risk of relapse “is not zero”); Tr. at 192, 194. The Individual’s Psychiatrist asserts that the
time between the Individual’s manic episodes will be extended and that the risk of recurrence is
low for the foreseeable future. Ex. Y at 1. On the other hand, the DOE Psychiatrist testified that
it is not possible to make a prediction as to the likelihood of a future manic episode based upon
dates of prior manic episodes. Tr. at 195. Moreover, while the DOE Psychiatrist agrees that the
Individual’s 2009 manic episode was likely triggered by Vyvnase, this factor would not have
changed his assessment of the Individual. Tr. at 204. The DOE Psychiatrist went on to testify
that individuals with Bipolar Disorder are always at risk for destabilization based on emotional
factors or the introduction of new medications.6 Tr. at 204; see Ex. 21 at 12 (Individual’s
assertion that his use of a herbal supplement, ginkgo biloba, triggered his 2000 manic episode).
In reviewing the conflicting testimony, I find the DOE Psychiatrist’s testimony more convincing.
As a result, I cannot find to a sufficient certainty that the Individual’s risk of experiencing a
manic episode is so low as to resolve the Criterion H security concerns.
The Individual has presented substantial evidence as to his belief that his intervention team
would help him receive early treatment for manic episodes and thus prevent lapses of bad
judgment and unreliability in the future. I am not sufficiently convinced that the intervention
team can mitigate future bouts of manic episodes and their associated bad judgment. In 2009, the
Individual’s wife confronted him as to the possibility he might be suffering from a manic
episode, but the Individual rejected her assessment of his condition. Significantly, the Counselor
could not give a definitive answer to the question whether such an intervention could persuade
someone suffering from a manic episode to seek early treatment. The Counselor opined that
while the “hope” would be that such a person could be persuaded to seek treatment early, the
state of mind of the individual would be the determining factor whether such help was accepted.
Tr. at 101-03. The Counselor went on to testify that it is impossible to determine what state of
mind such an individual would have in the future. Tr. at 102-03. Similarly, the Individual’s
Psychiatrist’s statement opined that it is “possible” that the Individual would not make decisions
in his best interest during a manic episode. Ex. Y at 1. Consequently, if a future manic episode
affected the Individual’s thinking to a significant extent, intervention may not be effective.
Given my above findings, I find that the Individual has not completely resolved the security
concerns raised by the Criterion H derogatory information. See Personnel Security Hearing,
Case No. TSO-1006 (May 18, 2011) (individual with Bipolar Disorder and a five-year history of
no manic episodes and compliance with prescribed medications found not to have resolved
security concerns raised by his illness).
Because I find that the Criterion H concerns have not been resolved, I cannot find that the
Criterion L concerns have been resolved. As discussed above, the Individual has a history of
making poor judgments and having poor reliability while in the midst of a manic episodes. Such
a pattern of unreliability would likely reoccur if the Individual is unfortunate enough to suffer
another manic episode in the future.
6 The fact that the 2009 episode was essentially not the Individual’s fault unfortunately does not change the fact that
the Individual suffers from Bipolar Disorder and is at risk for future significant manic episodes.
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In making this determination, I wish to put on the record that the Individual, in the absence of a
flair-up of his illness, is a responsible, hard-working, employee who has provided substantial
evidence of many commendable traits. A determination that one is not suitable for a security
clearance is not a moral determination of the worth of an individual or necessarily an assessment
of loyalty or integrity. The Individual should be commended for his service.
IV. CONCLUSION
Upon consideration of the entire record in this case, I find that there was evidence that cast
doubts regarding the Individual’s eligibility for a security clearance under Criteria H and L of the
Part 710 regulations. I also find that the Individual has not presented sufficient information to
fully resolve those concerns. Therefore, I cannot conclude that restoring the Individual’s
suspended 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). Accordingly, I find
that the DOE should not restore the Individual’s suspended access authorization at this time.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth
at 10 C.F.R. § 710.28.
Richard A. Cronin, Jr.
Hearing Officer
Office of Hearings and Appeals
Date: February 16, 2012