PSH-14-0037

*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: April 16, 2014 ) Case No.: PSH-14-0037
)
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Issued : October 9, 2014
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Revised Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
On September 11, 2014, I issued a decision which analyzed the Individual’s access authorization
eligibility under both Criterion H and Criterion L. The Local Security Office did not invoke
Criterion L in the March 2014 Notification Letter. This decision has been modified to reflect
that Criterion L is not at issue in this case. The outcome of the decision has not changed.
This Decision concerns the eligibility of XXXXXXXXXXXXXXXX (hereinafter referred to as
“the Individual”) to hold an access authorization1/ under the Department of Energy’s (DOE)
regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled, “General Criteria and Procedures
for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.” As fully
discussed below, after carefully considering the record before me in light of the relevant
regulations and Adjudicative Guidelines, I have determined that the Individual’s access
authorization should be restored.
I. Background
The Individual is employed by a DOE contractor in a position that requires him to hold a DOE
security clearance. The Local Security Office (LSO) received potentially derogatory information
regarding the Individual’s mental stability. The LSO conducted two Personnel Security
Interviews (PSI) with the Individual in May 2013 (May 14, 2013, PSI and May 28, 2013, PSI).
In March 2014, the LSO sent a letter (Notification Letter) to the Individual advising him that it
possessed reliable information that created a substantial doubt regarding his eligibility to hold a
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 Decision as access authorization or
security clearance.
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security clearance. In the Notification Letter, the LSO explained that the derogatory
information fell within the purview of a potentially disqualifying criterion set forth in the
security regulations at 10 C.F.R. § 710.8, subsection (h) (hereinafter referred to as Criterion H).2/
Upon his receipt of the Notification Letter, the Individual exercised his right under the Part 710
regulations by requesting an administrative review hearing. The Director of the Office of
Hearings and Appeals (OHA) appointed me the Administrative Judge in the case, and I
subsequently conducted an administrative hearing in the matter. At the hearing, the LSO
presented one witness, a DOE consulting psychologist (DOE psychologist); the Individual
presented his own testimony, and the testimony of three witnesses – his wife, his treating
psychiatrist (Psychiatrist #2), and the contractor’s nurse-practitioner who approved his fitness to
return to work. The LSO submitted 21 exhibits into the record; the Individual submitted three
exhibits into the record.
II. Regulatory Standard
A. Individual’s Burden
A DOE administrative review proceeding under Part 710 is not a criminal matter, where the
government has the burden of proving the defendant guilty beyond a reasonable doubt. Rather,
the standard in this proceeding places the burden on the Individual because it is designed to
protect national security interests. This is not an easy burden for the Individual to sustain. The
regulatory standard implies that there is a presumption against granting or restoring a security
clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with
the national interest” standard for granting 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), cert. denied, 499 U.S. 905 (1991) (strong presumption against the
issuance of a security clearance).
The Individual must come forward with evidence to convince the DOE that restoring his access
authorization “will not endanger the common defense and security and will be clearly consistent
with the national interest.” 10 C.F.R. § 710.27(d). The Individual is afforded a full opportunity to
present evidence supporting his eligibility for an access authorization. The Part 710 regulations
are drafted so as to permit the introduction of a very broad range of evidence at personnel
security hearings. Even appropriate hearsay evidence may be admitted. 10 C.F.R. § 710.26(h).
Thus, an Individual is afforded the utmost latitude in the presentation of evidence to mitigate the
security concerns at issue.
B. Basis for the Administrative Judge’s Decision
In personnel security cases arising under Part 710, it is my role as the Administrative Judge to
issue a Decision that reflects my comprehensive, common-sense judgment, made after
consideration of all the relevant evidence, favorable and unfavorable, as to whether the granting
or continuation of a person’s access authorization will not endanger the common defense and
2/ Criterion H concerns information that a person has “[a]n illness or mental condition of a nature which,
in the opinion of a psychiatrist or a licensed clinical psychologist, causes or may cause, a significant
defect in judgment or reliability.” 10 C.F.R. § 710.8(h).
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security and is clearly consistent with the national interest. 10 C.F.R. § 710.7(a). I am
instructed by the regulations to resolve any doubt as to a person’s access authorization eligibility
in favor of the national security. Id.
III. The Notification Letter and the Security Concerns at Issue
As previously noted, the LSO cites one criterion as the basis for suspending the Individual’s
security clearance, Criterion H. To support its allegations, the LSO references the Individual’s
16-year history of depression, hospitalizations in 2010 and 2013, the latter for suicidal and
possible homicidal ideations, and the opinion of a DOE psychologist that the Individual currently
suffers from Major Depressive Disorder, Recurrent, Severe, as defined by the Diagnostic and
Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). All of these matters relating to
the Individual’s mental health raise a security concern under Criterion H because the DOE
psychologist opined that the Individual’s Major Depressive Disorder could significantly and
clinically impair his judgment and compromises his reliability. Guideline I of the 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 (Adjudicative Guidelines) states that certain emotional, mental, and personality conditions
can impact one’s judgment, reliability, or trustworthiness. The Individual’s diagnosis in this case
falls under Guideline I. Adjudicative Guidelines, ¶ 28(b).
IV. Findings of Fact
Except where otherwise indicated, the facts are undisputed. The Individual was diagnosed with
depression in 1997. DOE Ex. 19. His treating psychiatrist (Psychiatrist #1) recommended that
the Individual attend counseling for one year and take Paxil. DOE Ex. 19. The Individual
completed the proscribed treatment, but six months later felt his depression returning. DOE Ex.
19. He immediately resumed treatment with his Psychiatrist #1. DOE Ex. 19. At that time,
Psychiatrist #1 suggested another two years of counseling and Paxil. DOE Ex. 19. In 2003, after
completing that course of treatment, the Individual was released to his primary care physician
(PCP) and continued taking Paxil under his observation. Tr. at 45.
In May 2010, after years with no significant psychiatric event, the Individual was hospitalized
after expressing some suicidal ideations to his family. He was diagnosed as suffering from
Major Depressive Disorder by the treating mental health professionals at the hospital. DOE Ex.
18 at 31. Prior to his hospitalization, the Individual was recovering from a leg injury that he
sustained at work. DOE Ex. 18 at 31. Upon returning to work after his injury, he was informed
that his work was below an acceptable standard in quality or performance. DOE Ex. 18 at 31.
Due to the stress from his work performance and injury and the medication prescribed for that
injury, his depression worsened and he was admitted to the hospital for observation. DOE Ex.
18. After five days, the Individual was discharged and referred to Psychiatrist #2. DOE Ex. 18.
In December 2012, Psychiatrist #2 noted that the Individual’s depression was worsening and he
was experiencing signs of anxiety. DOE Ex. 14 at 4. The diagnosis given at that time was Major
Depressive Disorder, Recurrent, in Partial Remission (Active). DOE Ex. 14 at 4. On January 3,
2013, the Individual began discussing ways to end his life. DOE Ex. 14 at 8. Psychiatrist #2
noted the same diagnosis of Major Depressive Disorder, Recurrent, in Partial Remission
(Active). DOE Ex. 14 at 8.
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On January 26, 2013, the Individual woke his wife by placing his hand on her throat twice.
DOE Ex. 17 at 4. When she awoke, the Individual’s wife found the Individual to be “very
tearful and very upset.” DOE Ex. 8. The Individual called Psychiatrist #2, and they agreed that
he should go to the hospital to be admitted for crisis management. DOE Ex. 14 at 12. The
hospital report reflects that the Individual was having “vague suicidal thoughts over the past
weeks but did not result in action or plans.” DOE Ex. 17 at 14. The notes also reflect that if the
Individual thought that suicide was an option, he would need to “take his wife with him.” DOE
Ex. 17 at 14. The Individual, his wife, and Psychiatrist #2 all stated that his stress level had been
increasing during late 2012 and early 2013 due to home and work related pressures and that the
Individual was experiencing suicidal ideations. DOE Ex. 14 at 2. The Individual was feeling
financial pressure because he was older and had little savings. DOE Ex. 14 at 2. In addition, his
work functions were changing and he needed to learn new skills. DOE Ex. 8 at 15. Finally, both
he and his wife were suffering from health-related issues. DOE Ex. 7 at 6. After a four-day
hospitalization, the Individual was discharged on January 30, 2013. DOE Ex. 17 at 29. At the
time of discharge, the Individual’s diagnosis was Major Depressive Disorder. DOE Ex. 17 at 29.
In March 2013, the Individual was medically cleared to return to work after being evaluated by a
nurse practitioner. The nurse practitioner reviewed Psychiatrist #2’s medical records relating to
the Individual, his hospital records from January 2013, and interviewed the Individual prior to
medically clearing him to return to work. DOE Ex. 12.
In May 2013, the Individual underwent two PSIs with the LSO. The LSO conducted the first
PSI on May 14, 2013, to inquire about the circumstances relating to the Individual’s January
2013 hospitalization. DOE Ex. 11. The LSO held the second PSI on May 28, 2013, to clarify
some discrepancies from the earlier PSI. DOE Ex. 7. During those PSIs, the Individual agreed
to be evaluated by a DOE psychologist. In August 2013, the DOE psychologist evaluated the
Individual and she completed her report on September 3, 2013. DOE Ex. 4. In her report, the
DOE psychologist diagnosed the Individual as suffering from Major Depressive Disorder,
Severe, Recurrent, and cited the DSM-5 to support her diagnosis. DOE Ex. 4 at 5. She
concluded that the Individual “has a mental health disorder which could significantly and
clinically impair his judgment and compromises his reliability.” DOE Ex. 4 at 5.
V. Analysis
I have thoroughly considered the record of this proceeding, including the submissions tendered
in this case and the testimony of the witnesses presented at the hearing. In resolving 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)3/ and the Adjudicative Guidelines. After due
deliberation, I have determined that the Individual’s access authorization should be restored. I
find that restoring the Individual’s DOE security clearance will not endanger the common
defense and security and is clearly consistent with the national interest. 10 C.F.R. § 710.27(a).
The specific findings that I make in support of this decision are discussed below.
3/ Those factors include the following: 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 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 the conduct, the potential for pressure, coercion, exploitation, or duress, the
likelihood of continuation or recurrence, and other relevant and material factors.
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A. The Individual’s Diagnosis
All the mental health professionals in the case, including the DOE psychologist and Psychiatrist
#1 and Psychiatrist #2, agree that the Individual is suffering from depression. The doctors at the
hospital where he was admitted in 2010 and 2013, the DOE psychologist, and Psychiatrist #2 all
agree that the Individual suffers from Major Depressive Disorder (MDD). The degree of
severity of the MDD is where their opinions differ. The DOE psychologist opined that the
Individual’s MDD was recurrent and severe. DOE Ex. 4 at 5. Psychiatrist #2 opined that,
although recurrent, the Individual’s MDD is in partial remission. Tr. at 112.
B. The Security Concern
The Criterion H concern raised by the LSO relates to whether the Individual’s MDD causes or
may cause a significant defect in judgment or reliability. The DOE psychologist stated in her
report and reiterated at the hearing that the Individual’s MDD could significantly and clinically
impair his judgment and compromise his reliability. Based on the evidence readily available to
the LSO at the time of the Notification Letter, the LSO properly invoked Criterion H based on
the DOE psychologist’s opinion.
Psychiatrist #2, however, disagreed with the DOE psychologist’s opinion. He testified that the
Individual’s core functioning has not been affected by his MDD. Psychiatrist #2 opined that the
Individual is high-functioning with a high intelligence, and a methodical, systematic person with
solid, stable, and ethical principles. Tr. at 88. Psychiatrist #2 also stated that the Individual is
“really devoted to his job, to his work.” Tr. at 88. Psychiatrist #2 concluded that:
I would say depression has been a major health problem. . . . that has had a very
significant impact in his life. However, he has not shown any impact on his
cognitive function and his overall daily activities and his lifestyle, as it may have
in other patients. I'm referring specifically to psychotic symptoms, unusual
behavior, changes in personality or any sign of recklessness. That has never been
a problem with [the Individual].
Tr. at 90. He went on to state that the Individual’s suicidal ideations, which have been in
evidence over the years, are passive as the Individual has never attempted to carry one out. Tr. at
118.
As noted above, there is a difference of opinion between the two mental health professionals that
testified in this case. For the various reasons noted below, I find Psychiatrist #2’s opinion to be
more persuasive in this case. He has been treating the Individual for over four years, and he has
spent considerably more time treating him. Tr. at 70. They meet at least monthly for medication
management and counseling. Tr. at 100. It is apparent from his notes that he is counseling and
observing the Individual during those meetings as well. DOE Ex. 8; DOE Ex. 14; Ind. Ex. A.
He is intimately acquainted with the Individual and his mental health condition. Psychiatrist #2
opined that the Individual’s MDD diagnosis has not changed his personality or core functioning.
Tr. at 88. On the other hand, the DOE psychologist is of the opinion that the Individual’s
condition could significantly impair his judgment and compromise his reliability. She based this
opinion on a 90-minute interview and a review of his DOE personnel file. DOE Ex. 4. She
averred that the Individual’s MDD has been uncontrolled for 17 years, which is in direct conflict
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to the testimony of the Individual, his wife, and Psychiatrist #2. Tr. at 207. She also asserted
that the Individual only sees Psychiatrist #2 every three to four months, which is in direct
conflict with the Individual’s, his wife’s, and Psychiatrist #2’s testimony and the documentary
evidence. Tr. at 200; DOE Ex. 8. Therefore, while I find that the LSO properly invoked
Criterion H, based on the hearing testimony presented by the Individual, his wife, and
Psychiatrist #2, I find that the Individual’s MDD does not currently cause a significant defect in
the Individual’s judgment or reliability.
C. Mitigation
Although I find that the Individual’s MDD is not currently a concern under Criterion H, I will
address the remaining concern about whether his MDD might impair his judgment, reliability,
and trustworthiness in the future. Based on the record before me, I find that the Individual’s
MDD is readily controllable with treatment, that he has demonstrated ongoing and consistent
compliance with the treatment plan and that he “has voluntarily entered a counseling or treatment
program for a condition that is amenable to treatment, and the individual is currently receiving
counseling or treatment with a favorable prognosis by a duly qualified mental health
professional.” Adjudicative Guidelines at Guideline I, ¶ 29(a)-(b).
Beginning in 1997, the Individual has consistently shown compliance with his treatment plan.
When initially diagnosed with depression, Psychiatrist #1 recommended that the Individual
attend one year of counseling and take Paxil. DOE Ex. 19. He completed that prescribed
treatment, but six months later when he felt his depression returning he immediately resumed
treatment with Psychiatrist #1 for another two-year period, as prescribed by Psychiatrist #1. Tr.
at 19. After completing two years of counseling with Psychiatrist #1, Psychiatrist #1 released
him to the care of his PCP for continuing observation. Tr. at 45. In May 2010, when the
Individual felt his depression worsening, he sought help by being admitted to the hospital. The
hospital personnel referred him to Psychiatrist #2, who has been treating him for MDD since
2010. DOE Ex. 18. They meet regularly, usually once a month. DOE Ex. 8; Tr. at 100. In
January 2013, the Individual had a mental health crisis that ultimately culminated by his twice
placing his hand on his wife’s neck while she was asleep. Both times, his hand placement woke
her up. He testified that although he was awake, he felt like he was dreaming. Tr. at 136. When
she awoke after the second incident, he was “very tearful and very upset.” Tr. at 34. After
speaking with Psychiatrist #2 by telephone, they agreed he should go to the hospital to be
evaluated. He was admitted to the hospital a second time. Psychiatrist #2 testified that, although
the Individual’s MDD cannot be cured, it can and is controlled. Tr. at 121. He opined that the
Individual’s MDD is in partial remission. DOE Ex. 8; Tr. at 112.
As stated above, I found the testimony of Psychiatrist #2, along with the Individual and his wife,
to be persuasive. They were candid, open, and honest. In addition, Psychiatrist #2 and the
Individual’s wife, who is also a registered nurse, both stated that the Individual is very compliant
with his medication and has never resisted treatment. The Individual’s wife stated “he never
misses appointments and whatever the doctor tells him that he's supposed to do, that's what he
does. And if he doesn't understand something, he'll ask me to explain to him what the
treatment’s about or what the medicine is for. You know, he's very attentive to it.” Tr. at 39.
The Individual’s two hospitalizations occurred when he expressed concern that his depression
was worsening. DOE Ex. 17 at 14; DOE Ex. 18 at 31. From the very beginning, the Individual
has been consistent and compliant with the treatment plans put in place by his health care
professionals, thereby satisfying paragraph 29(a) of the Adjudicative Guidelines.
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The Individual voluntarily entered into treatment, first in 1997 with Psychiatrist #1, and again in
1998 when the course of treatment was completed but the Individual felt his depression
returning. DOE Ex. 19. He continued his voluntary treatment by consulting with Psychiatrist #2
after his hospitalization in 2010. DOE Ex. 18 at 31. The Individual continues in treatment with
Psychiatrist #2, and Psychiatrist #2 testified that the Individual’s MDD can be controlled. Tr. at
121. His continuing treatment and the favorable prognosis by Psychiatrist #2 satisfies paragraph
29(b) of the Adjudicative Guidelines.
In light of the persuasive testimony of Psychiatrist #2, I find that the Individual’s current
condition is controllable with treatment and that he has demonstrated ongoing and consistent
compliance with that treatment plan and that he has voluntarily entered and continued counseling
with a favorable prognosis by Psychiatrist #2. Therefore, he has resolved any Criterion H
security concerns that might present themselves in the future.
VI. Conclusion
In the above analysis, I have found that there was sufficient derogatory information in the
possession of the DOE that raises serious security concerns under Criterion H. After considering
all the relevant information, both favorable and unfavorable, in a comprehensive common-sense
manner, including weighing all the testimony and other evidence presented at the hearing, I have
found that the Individual has brought forth sufficient evidence to resolve the security concerns
associated with Criterion H. I therefore find that restoring the Individual’s access authorization
will not endanger the common defense and is clearly consistent with the national interest.
Accordingly, I have determined that the Individual’s access authorization should be restored.
The parties may seek review of this Decision by an Appeal Panel under the regulations set forth
at 10 C.F.R. § 710.28.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals
Date: October 9, 2014