PSH-17-0025

*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 14, 2017 ) Case No.: PSH-17-0025
)
__________________________________________)
Issued: June 22, 2017
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Administrative Judge Decision
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Richard A. Cronin, Jr., Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXX (“the Individual”) for access
authorization under the Department of Energy’s (DOE) regulations set forth at 10 C.F.R. Part
710, Subpart A, entitled, “Criteria and Procedures for Determining Eligibility for Access to
Classified Matter or Special Nuclear Material.”1 For the reasons set forth below, I conclude 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 health. In order to address those concerns, the LSO summoned
the Individual for an interview with a personnel security specialist in September 2016. Following
the September 2016 interview, the LSO sent the Individual for an evaluation with a DOE
consultant-psychologist (DOE Psychologist).
On March 1, 2017, after reviewing the transcript of the Personnel Security Interview (PSI) and
the Individual’s personnel security file, the LSO sent the Individual a letter (Notification Letter)
advising him that the DOE possessed reliable information that created substantial doubt
regarding his eligibility to continue to hold access authorization. In an attachment to the
Notification Letter, the LSO explained that the derogatory information fell within the purview of
Guideline I (Psychological Conditions) of the Revised Adjudicative Guidelines for Determining
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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Eligibility for Access to Classified Information, The White House (December 29, 2005) (the
Guidelines).
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 Individual
presented the testimony of three witnesses and testified on his own behalf. The DOE Counsel
presented the testimony of the DOE Psychologist. The LSO submitted nine exhibits (Ex. 1-9)
into the record; the Individual tendered sixteen exhibits (Ex. A-P). The hearing transcript in the
case will be cited as “Tr.” followed by the relevant page number.2
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 at the hearing 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). Hence, 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 OHA decisions are available on the OHA website at www.energy.gov. A decision may be accessed by entering the
case number in the search engine at www.oha.gov/search.htm.
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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. Notification Letter and Associated Security Concerns
As previously mentioned, the Notification Letter included a statement of derogatory information
that raised concerns about the Individual’s continued eligibility for access authorization. The
information in the letter specifically cites Guideline I.
Guideline I addresses “[c]ertain emotional, mental, and personality conditions [that] can
impair judgment, reliability, and trustworthiness.” Guideline I at ¶ 27. While seeking
mental health counseling cannot be used as the sole basis for raising this guideline, an “opinion
by a duly qualified mental health professional that the individual has a condition…that may
impair judgment, reliability, or trustworthiness” could raise a security concern and may
disqualify an individual from maintaining access authorization. Id. at ¶¶ 27, 28(b). The
Notification Letter supports the use of Guideline I, citing the report of the DOE
Psychologist who evaluated the Individual, concluding that the Individual met the criteria
for “Persistent Depressive Disorder that causes him to be reactively angry, depressed and at
times suicidal.” The Notification Letter further stated that the DOE Psychologist
determined that the Individual’s depression and suicidal inclinations made him “likely to
have significant defects in his judgment and/or reliability.”
IV. Findings of Fact
Following a divorce and the death of his dog, the Individual began experiencing feelings of
sadness and loneliness. Ex. B at 3. He visited his primary-care physician, who prescribed an
antidepressant. Ex. B at 3 and Ex. 6 at 2. The Individual informed his supervisor of this fact. Ex.
B at 3.
In September 2016, the Individual participated in a PSI. The Individual stated that, in addition to
the medication, his primary-care physician suggested that he seek counseling. Ex. 8 at 12, 15.
However, the Individual indicated that after a week of using the medication, he began feeling
better and, therefore, chose not to seek counseling. Id. at 17. Following the PSI, the LSO sent the
Individual for evaluation with the DOE Psychologist. The DOE Psychologist determined that the
Individual suffered from Persistent Depressive Disorder “that causes him to be reactively angry,
depressed, and at times suicidal.” Ex. 6 at 6-7. The DOE Psychologist determined this to be “an
illness or mental condition of a nature which causes or may cause a significant defect in
judgment or reliability[,]” and he recommended that the Individual consult a psychiatrist for
proper medication management and seek therapy. Id.
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) and the Adjudicative Guidelines. After due
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deliberation, I have determined that the Individual’s security clearance 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.
At the hearing, the Individual asserted that he was not contesting the diagnosis of depression. Tr.
at 9-10. Instead, the Individual sought to demonstrate, through his exhibits, his testimony and his
witnesses, that he had resolved all of the security concerns. Id. at 9. While the Individual’s
counseling psychologist (Counseling Psychologist) was unable to testify at the hearing, he
submitted a notarized letter into the record indicating that he had been providing therapeutic
counseling to the Individual. Id. at 7; Ex. A. The Counseling Psychologist noted that the
Individual did “report a history of depression and suicidal thoughts, but they are effectively
managed…with his medication.” Ex. A at 1. He further noted that while he did not see a need for
continued therapy as the Individual’s “symptoms are quite minimal[,]” he would support the
Individual’s desire to continue therapy. Id.
In testifying on his own behalf, the Individual stated that he had held a security clearance for
approximately fifteen years without raising a security concern. Tr. at 85-86. He explained that he
“felt overwhelmed” by the divorce and the death of his dog and was having thoughts and feelings
that he did not know how to express; so he sought “help” from his primary care physician, who
prescribed medication. Id. at 86-87. After seven days, the Individual explained that he “felt a lot
better.” Id. at 87. The Individual acknowledged that he would not have sought counseling had it
not been for the DOE Psychologist’s evaluation. Id. at 93. He explained that through counseling,
he has learned that his emotions are normal and “[w]hat’s important is how [he] deal[s] with
them.” Id. He further elaborated that the stress of these administrative proceedings has shed light
on his support system, and he now realizes that he has “a lot of people [he] can talk to if [he]
need[s] it.” Id. at 93-94; 96. The Individual explained that he has been seeking counseling and
wishes to continue to pursue counseling. Id. at 94-95; 104. He explained that the Counseling
Psychologist has given him the tools to deal with the present, and not focus on the past, and he
stated that he felt relief in knowing “that everybody feels concern [and] stress.” Id. at 94-95. He
further stated that he intends to use his medication as prescribed and is open to suggestions of his
medical providers regarding changes to the dosage. Id. at 95-96.
The Individual additionally called three witnesses to testify on his behalf: his direct supervisor
and representative at the hearing (Supervisor), his sister-in-law, and a coworker.3 Id. at 13, 46,
69. Each witness stated that they had observed the Individual in stressful situations and had never
seen him react negatively. Id. at 24, 36-37, 49-50, 72-73. The Supervisor stated that in
approximately five-and-a-half years of knowing the Individual, he had never seen the Individual
demonstrably angry, nor had he observed the Individual behave in a concerning manner. Id. at
15-16, 28, 37. While the Supervisor acknowledged that the loss of the Individual’s dog was a
very traumatic event in his life, the Supervisor noted that the Individual was excited about his
counseling sessions and “enthusiastic about continuing to meet” with the Counseling
Psychologist. Id. at 25, 31-32.
3 The Individual submitted into the record eight “Letters of Support” from persons who know him. Ex. F, H, I, K, L,
N-P.
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The Individual’s coworker testified that he knew the Individual both on a professional and
personal level as they spent time together outside of the workplace. Id. at 70-71. The coworker
explained that he knew the Individual when the Individual worked with the “worst project
manager [he had] ever seen in [his] life.” Id. at 72. He explained that while the Individual
received the “brunt” of the manager’s treatment, which he described as “throwing stuff and
yelling,” he never saw the Individual react negatively. Id. at 73. Like the Supervisor, the
coworker acknowledged that the Individual “expressed hurt” over the loss of his dog, but the
coworker saw “nothing out of the ordinary.” Id. at 81, 83.
The Individual’s sister-in-law testified that she has known the Individual since 1982 and has
observed him “under a lot of stress.” Id. at 49. She described him as very reserved and
nonreactive, and stated that, while she had seen him agitated and frustrated, she had never seen
him act out, aggressive, or confrontational. Id. at 49-51. She shed light on the Individual’s
relationship with his dog, explaining that the dog was a part of the family, and the loss of the dog
felt like a family member had died. Id. at 51-52. She explained that the Individual has adopted
another dog and stated that “he has a partner again.” Id. at 66-67. She further expressed that she
and her husband are willing to be whatever support system the Individual might need. Id. at 62.
The final witness was the DOE Psychologist, who sat through the entire hearing, listening to the
testimony of all of the witnesses. The DOE Psychologist explained that in hearing the testimony,
he was unaware of the stress the Individual had experienced under his previous manager and he
noted that the testimony revealed that the Individual was “generally regarded as someone who
was easy to get along with.” Id. at 123, 126. He explained that he diagnosed the Individual with a
Persistent Depressive Disorder, and noted that this diagnosis was not likely to impair a person’s
judgment unless that person was suicidal. Id. at 124. The DOE Psychologist stated that the
Individual had described having suicidal thoughts about one year prior to the evaluation, and he
thought the Individual had a condition that could lead to bad judgment. Id. at 124, 127. However,
after listening to the testimony at the hearing, the DOE Psychologist stated that he was revising
his opinion, and he had no reservations about the Individual’s psychological well-being. Id. at
128. He stated that there was no defect in the Individual’s judgment or reliability. Id.
Considering these facts, I conclude that the security concerns raised under Guideline I have been
sufficiently mitigated. After the loss of his dog, the Individual voluntarily sought out help, and
then, after being evaluated by the DOE Psychologist, he voluntarily sought additional treatment
in the form of therapeutic counseling. See Guideline I at ¶ 29(b). The Individual is currently
receiving counseling from the Counseling Psychologist, and stated that he intends to continue
this course of action, in spite of the Counseling Psychologist indicating it was no longer
necessary. Id. Furthermore, the DOE Psychologist indicated that he no longer had concerns about
the Individual’s psychological state. See id. at ¶ 29(c)(e). I further find that the DOE
Psychologist’s revised opinion is consistent with the witness testimony and my observations of
the Individual.
VI. Conclusion
In the above analysis, I have found that there was sufficient derogatory information in the
possession of the DOE that raised serious security concerns under Guideline I. However, after
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considering all of the relevant information, favorable and unfavorable, in a comprehensive
common-sense manner, including weighing all of the testimony and other evidence presented at
the hearing, I find that the Individual has brought forth sufficient evidence to resolve the security
concerns associated with that guideline. 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 DOE should restore the Individual’s access
authorization. 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.
Administrative Judge
Official of Hearings and Appeals
Date: June 22, 2017