Supreme Court case sheds light on security clearance challenges

Of the 74,000 NASA contractor applicants in a five-year period, only 128 were denied credentials, says acting solicitor general

In the past five years, 128 contractor employees in nonsensitive positions have been denied federal credentials as a result of answers they gave on a background check questionnaire, according to a federal attorney speaking before the Supreme Court on Oct. 5.

Acting Solicitor General Neal Katyal, representing NASA and the federal government, provided that information as part of oral arguments presented in a case involving whether NASA has the right to conduct intensive background checks on contractor employees at NASA facilities.

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The 28 contractors who are plaintiffs in the case are employees of the California Institute of Technology at NASA’s Jet Propulsion Lab in Pasadena, Calif. They allege that the background checks were unconstitutional because they are too intrusive and broad-ranging. The plaintiffs also said they should not be required to undergo security clearance checks because they are handling unclassified information that does not involve national security.

As part of the oral arguments, Katyal defended the background checks as part of a standard employment process and said safeguards were in place to protect privacy. He also said the checks do involve national security because the credentials offer access to sensitive facilities.

He also made a statement regarding the SF-85 Questionnaire for Non-Sensitive Positions: Of the 74,000 contractor employees who have filled out the questionnaire in the past five years, only 128 have been denied a federal credential as a result.

“The process by which this takes place is the form is filled out,” Katyal said, according to the transcript of the oral arguments. “It's ultimately sent to an adjudicator if there is negative information, and...that information is then discussed with the candidate for employment or the employee to see if they have an explanation. And of the times that this has happened, that someone has been denied, and I think the number is 128 times over the last five years.”

He reaffirmed the estimate a few minutes later under questioning.

A decision on the NASA case is expected early next year.

About the Author

Alice Lipowicz is a staff writer covering government 2.0, homeland security and other IT policies for Federal Computer Week.

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