PSH-19-0020

*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 15, 2019 ) Case No.: PSH-19-0020
)
__________________________________________)
Issued: July 11, 2019
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXX (hereinafter referred to as “the Individual”) for
access authorization under the Department of Energy’s (DOE) regulations set forth at 10 C.F.R.
Part 710, entitled, “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
security clearance should not be granted.
I. BACKGROUND
The Individual is employed by a DOE Contractor in a position that requires him to hold a security
clearance. The Local Security Office (LSO) began the present administrative review proceeding
by issuing a Notification Letter to the Individual informing him that it was in possession of
information creating a substantial doubt concerning the Individual’s eligibility to obtain a security
clearance and that he was entitled to a hearing before an Administrative Judge in order to resolve
the doubt regarding his eligibility to hold a security clearance. See 10 C.F.R. § 710.21.
The Individual requested a hearing and the LSO forwarded the Individual’s request to the Office
of Hearings and Appeals (OHA). The Director of OHA appointed me as the Administrative Judge
in this matter on April 15, 2019. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e)
and (g), the Individual presented the testimony of three witnesses, including himself. The LSO
presented the testimony of the DOE psychologist who had evaluated the Individual. See Transcript
of Hearing, Case No. PSH-19-0020 (hereinafter cited as “Tr.”). The LSO submitted seven exhibits,
marked as Exhibits 1 through 7 (hereinafter cited as “Ex.”). The Individual submitted four exhibits,
marked as Exhibits A through D.
1 Under the regulations, “Access authorization” means 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 also be referred to in this Decision as a security clearance.
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II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY
CONCERNS
As indicated above, the Notification Letter informed the Individual that information in the
possession of the DOE created a substantial doubt concerning his eligibility for a security clearance.
That information pertains to Guideline I (Psychological Conditions) of the National Security
Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or
Eligibility to Hold a Sensitive Position, effective June 8, 2017 (Adjudicative Guidelines). These
guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior,
these guidelines are applied in conjunction with the factors listed in the adjudicative process.
Guideline I addresses certain emotional, mental, and personality conditions that can impair
judgment, reliability, or trustworthiness. Adjudicative Guidelines ¶ 27. An opinion from a duly
qualified mental health professional that the individual has a condition that may impair judgment,
stability, reliability, or trustworthiness could raise a Guideline I security concern. Id. ¶ 28(b). The
LSO alleges that a DOE consulting psychologist diagnosed the Individual with Depression and
Anxiety Disorder, Unspecified, which, in his opinion, are conditions that could impair the
Individual’s judgment, stability, reliability, and trustworthiness. Ex. 1. Accordingly, the LSO’s
security concerns under Guideline I are justified.
III. REGULATORY STANDARDS
A DOE administrative review proceeding under Part 710 requires me, as the Administrative Judge,
to issue a Decision that reflects my comprehensive, common-sense judgment, made after
consideration of all of 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
security and is clearly consistent with the national interest. 10 C.F.R. § 710.7(a). The entire process
is a conscientious scrutiny of a number of variables known as the “whole person concept.”
Adjudicative Guidelines ¶ 2(a). The protection of the national security is the paramount
consideration. 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 granting
or restoring 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.
The discussion below reflects my application of these factors to the testimony and exhibits
presented by both sides in this case.
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IV. FINDINGS OF FACT
In 2015, the Individual admitted himself to the hospital because of depression and suicidal ideation.
Ex. 4. At the hearing, the Individual’s fiancée explained that the Individual, after speaking with
his mother and aunt, who is a therapist, decided he should seek treatment for his depression and
admitted himself to the hospital. Tr. at 24. After his release from the hospital, he consulted with a
Psychiatrist (Individual’s Psychiatrist) who diagnosed the Individual with Depression and Anxiety
Disorder, Unspecified. Ex. D at 29. The Individual’s Psychiatrist saw the Individual in January,
February, and June of 2016, followed by once in 2017 and once in 2018. Ex. D. In addition, the
Individual’s Psychiatrist prescribed medications for the Individual. Id. The DOE consulting
psychologist acknowledged that the Individual followed all of the Individual’s Psychiatrist’s
recommendations, which resulted in once-a-year appointments in 2017 and 2018. Tr. at 72.
On his Questionnaire for National Security Position (QNSP), the Individual admitted that he had
been hospitalized for suicidal ideation and depression. Ex. 7 at 40. Upon receipt of that
information, the LSO asked that the Individual be evaluated by a DOE consulting psychologist. In
February 2019 the DOE consulting psychologist examined the Individual and prepared a written
report confirming the Individual Psychiatrist’s diagnosis of Depression and Anxiety Disorder,
Unspecified. Ex. 5 at 6. In the report, the DOE consulting psychologist found that the Individual
showed symptoms of major depression, despite being in treatment with the Individual’s psychiatrist
for over two years. He opined that these symptoms place the Individual in the top seven percent
of people suffering from depression as compared with other people that are diagnosed with major
depression. Id. In his report, the DOE consulting psychologist recommended that (1) the
Individual’s medication treatment program be reevaluated; (2) the Individual enter weekly
individual therapy sessions with an appropriately licensed professional; and (3) the Individual
should demonstrate that he has been symptom-free for a period of one year. Id. at 6. At the hearing,
the DOE consulting psychologist opined that the Individual’s medication program had not been
reevaluated since his February 2019 evaluation and that the Individual had not undertaken weekly
professional therapy. Id. at 67. He concluded that he would be more confident of the Individual’s
prognosis after he had been on a new medication program for a few weeks and had demonstrated
attendance in weekly therapy for three to six sessions. Id. at 71.
V. ANALYSIS
A person who seeks access to classified information enters into a fiduciary relationship with the
government predicated upon trust and confidence. This relationship transcends normal duty hours
and endures throughout off-duty hours. The government places a high degree of trust and
confidence in individuals to whom it grants access authorization. Decisions regarding the granting
or denial of a security clearance include, by necessity, consideration of the possible risk that the
applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such
decisions entail a certain degree of legally permissible extrapolation as to potential, rather than
actual, risk of compromise of classified information.
The issue before me is whether the Individual, at the time of the hearing, presents an acceptable
risk to national security and the common defense. I must consider all of the evidence, both favorable
and unfavorable, in a common sense manner. “Any doubt concerning personnel being considered
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for access for national security eligibility will be resolved in favor of the national security.”
Adjudicative Guidelines ¶ 2(b). In reaching this decision, I have drawn only those conclusions that
are reasonable, logical, and based on the evidence contained in the record. Because of the strong
presumption against restoring security clearances, I must deny restoration if I am not convinced
that the LSO’s security concerns have been mitigated such that restoring the Individual’s clearance
is not an unacceptable risk to national security.
The Adjudicative Guidelines outline conditions that could mitigate the Guideline I security
concerns, including:
(a) the identified condition is readily controllable with treatment, and the individual
has demonstrated ongoing and consistent compliance with the treatment plan;
(b) the individual 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;
(c) there is a recent opinion by a duly qualified mental health professional employed
by, or acceptable to and approved by, the U.S. Government that an individual's
previous condition is under control or in remission, and has a low probability of
recurrence or exacerbation;
(d) the past psychological/psychiatric condition was temporary, the situation has
been resolved, and the individual no longer shows indications of emotional
instability;
(e) there is no indication of a current problem.
Adjudicative Guidelines ¶ 29(a)-(e). The Individual has failed to show that he meets any of the
Guideline I mitigation factors listed above. His condition is readily controllable with treatment,
and the Individual has demonstrated an ongoing and consistent compliance with the treatment plan
recommended by the Individual’s Psychiatrist; however, this recommended treatment plan has not
resulted in the control of the Individual’s condition, as evidenced by the DOE consulting
psychologist’s evaluation of the Individual. Ex. 5 at 6. The DOE consulting psychologist opined
in his evaluation that the Individual was “currently acknowledging symptoms of major depression.”
Id. He identified those symptoms as: (1) more depression in general terms of sadness, empty
feelings; (2) diminished interested in some activities; (3) fatigue and loss of energy; and (4)
diminished ability to think and concentrate. Tr. at 69-70.
Although the Individual voluntarily entered the hospital and consulted with a psychiatrist, his
condition has not been controlled by his current medication program and yearly counseling.
Further, the Individual has not received a favorable prognosis by the DOE consulting psychologist.2
Although the DOE consulting psychologist suggested in February 2019 that the Individual needed
2 The Individual’s psychiatrist did not testify. In fact, the Individual had not consulted with his psychiatrist since 2018,
because his latest appointment, which was to have occurred in April, was cancelled and not rescheduled until after the
date of the hearing. Exs. C, D.; Tr. at 42, 47, 48,
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to have his medication program reevaluated and that he needed to be in individual weekly therapy,
as of the time of the hearing, the Individual had not either consulted with the Individual’s
Psychiatrist for a reevaluation of his medications nor started therapy.
For all of these reasons, I cannot find that the Individual has resolved the Guideline I concerns
raised by the Individual’s psychologist condition.
VI. CONCLUSION
Upon consideration of the entire record in this case, I find that there was evidence that raised
concerns regarding the Individual’s eligibility for a security clearance under Guideline I of the
Adjudicative Guidelines. I further find that the Individual has not succeeded in fully resolving those
concerns. Therefore, I cannot conclude that restoring DOE access authorization to the Individual
“will not endanger the common defense and security and is clearly consistent with the national
interest.” 10 C.F.R. § 710.7(a). Accordingly, I find that the DOE should not grant access
authorization to the Individual 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.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals