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DICK v. UNITED STATES

March 27, 1972

Ronald S. DICK, Plaintiff,
v.
UNITED STATES of America, Melvin R. Laird, Defendants


Gasch, District Judge.


The opinion of the court was delivered by: GASCH

GASCH, District Judge.

 This matter came on for consideration of motions by plaintiff Dr. Ronald Dick, for summary judgment and by defendant United States to dismiss and by the Secretary of Defense for summary judgment. Briefly stated, plaintiff seeks review of a decision by the Secretary to deny plaintiff's application for a secret security clearance and to revoke his confidential clearance pursuant to the procedures established by the Industrial Personnel Security Clearance Program, Department of Defense Directive 5220.6, 32 C.F.R. § 155 (1970).

 When Dr. Dick submitted his application for a secret clearance in 1967, he was referred to Dr. Louis Linn, a psychiatric consultant to the Department of Defense, for evaluation. After an interview of approximately one and a half hours, Dr. Linn concluded that Dr. Dick had "a Personality Pattern Disturbance (Paranoid Personality)" which was of a continuing nature and which constituted a significant defect in his judgment and reliability. Accordingly, he recommended that the secret clearance be withheld on psychiatric grounds. Dr. Dick was then furnished a Statement of Reasons by the Screening Board and was advised of his right to a hearing before an Examiner as set forth in 32 C.F.R. § 155.7(a) and (b).

 A hearing was subsequently conducted before an Examiner at which Dr. Linn testified concerning his conclusion that Dr. Dick was suffering from a paranoid personality. Dr. David Trachtenberg, a licensed physician with ten years' experience in the practice of psychiatry, testified that based on three interviews he had concluded that Dr. Dick suffered from no mental condition which would render him incompetent to handle secret material nor did he suffer from a paranoid personality. The regulations permit an applicant to call witnesses and present evidence in his behalf at the hearing.

 The Examiner's Determination of March 12, 1969, concluded that on the basis of all the information of record it was not clearly consistent with the national interest to grant Dr. Dick a security clearance at any level. He stated that he had rejected Dr. Trachtenberg's testimony because, among other reasons,

 The conclusion of the Examiner was subsequently affirmed by the Appeal Board.

 In support of its motion for summary judgment, the government contends that the scope of judicial review in this type of case is limited to a determination of whether the plaintiff received a procedurally fair hearing and whether there is sufficient evidence in the record to support the Examiner's conclusion and asserts that those standards have been met.

 The starting point for consideration of the type of hearing to be afforded in a security clearance case is provided by Greene v. McElroy, 360 U.S. 474, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959). The Supreme Court in Greene, while not reaching the constitutional issues involved, concluded that in the absence of express executive or legislative authority, a hearing which did not provide the safeguards of confrontation and cross-examination did not comport with our traditional ideas of fair procedure. The Court has cautioned, however, that "the very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation" and that "consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by government action." Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S. Ct. 1743, 1748-1749, 6 L. Ed. 2d 1230 (1961).

 There is no contention that Dr. Dick was denied any procedural rights such as confrontation and cross-examination of witnesses which are afforded him by the regulations. However, at the judicial hearing counsel for the government was questioned as to the source of the factual material concerning Dr. Dick's background which had been explored by Dr. Linn and which consequently led the Hearing Examiner to prefer Dr. Linn's evaluation. Counsel advised the Court that this information had been furnished to Dr. Linn from Department of Defense files and contained summaries of previous examinations and statements from other people who had had contact with Dr. Dick. This response is supported by testimony of Dr. Linn before the Examiner. (Hearing Transcript at 15). While there is no express indication that Dr. Linn relied on this material in forming his conclusion, neither is there an indication that he did not. The conclusion is virtually inescapable that he did so rely, particularly in view of the Examiner's favorable reaction to Dr. Linn's greater awareness of basic facts of Dr. Dick's behavioral background. The record is likewise silent as to whether Dr. Dick, his attorney, or his psychiatrist were permitted to view this material and counsel for the government conceded that they were not.

 Access to evidentiary material in the possession of an administrative body which will be considered and relied upon by that body in making its ultimate determination should ordinarily be afforded to the individual whose interest is at stake. Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970); Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir. 1970). Conversely, the full panoply of due process safeguards need not necessarily be afforded to the individual during the investigative, as opposed to the adjudicative, phase of an administrative proceeding. Adams v. Laird, 136 U.S. App. D.C. 388, 420 F.2d 230 (1969). Had the government, in the instant case, attempted to introduce Dr. Dick's background file into evidence at the hearing before the Examiner, the applicant would ordinarily have been given access to that material, subject to certain exceptions. 32 C.F.R. § 155.7(d). The difficulty presented by this case is that it did not. Rather, it made that material available to a psychiatrist who testified as an expert witness at the hearing and whose testimony was preferred by the Examiner in part because of the psychiatrist's greater familiarity with the details of Dr. Dick's background.

 It is well established that the opinion testimony of a psychiatrist is admissible even though it may be based in part upon the reports of others which are not in evidence but upon which the psychiatrist customarily relies in the practice of his profession. Jenkins v. United States, 113 U.S. App. D.C. 300, 307 F.2d 637 (1962). There can be no doubt but that information concerning an individual's background and prior behavior is relevant, material, and perhaps even crucial to the psychiatrist's evaluation and diagnosis. As the Fourth Circuit has noted:

 
In many fields of medicine, doctors are ill-prepared to reach a diagnosis unless they have an adequate history. This is particularly true of psychiatrists, and personality difficulties of the sort with which Carrington has been found to suffer, readily revealed during performance under stress, might never be manifested ...

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