Background Investigations

Supreme Court: Feds Can Check Contract Workers

On January 19, 2011 the Supreme Court of the United States (SCOTUS) published its 8-0 decision regarding “NASA v. Nelson.” It reversed and remanded the decision of the 9th U.S. Circuit Court of Appeals to grant a preliminary injunction against NASA enforcement of Personal Identity Verification (PIV) credentialing required under Homeland Security Presidential Directive 12 for contractor personnel who occupy non-sensitive, low-risk positions.

28 contractors working at the Jet Propulsion Laboratory a filed suit against the U.S. Government claiming that the National Agency Check with Inquiries (NACI) investigation used to determine eligibility for PIV credentialing violated their right to “informational privacy.”  A U.S. District Court initially denied their request for a preliminary injunction, but the injunction was later granted by the 9th Circuit Court. The SCOTUS majority opinion skirted the main issue by stating:

“Assuming, without deciding, that the Government’s challenged inquiries implicate a privacy interest of constitutional significance, that interest, whatever its scope, does not prevent the Government from asking reasonable questions of the sort included on SF–85 and Form 42 in an employment background investigation that is subject to the Privacy Act’s safeguards against public disclosure. . . . The forms are reasonable in light of the Government interests at stake.” (emphasis added)

In a separate concurring opinion, Justice Scalia made the simple assertion that a “federal constitutional right to ‘informational privacy’ does not exist.” He objected to the SCOTUS majority opinion because “The Court decides that the Government did not violate the right to informational privacy without deciding whether there is a right to informational privacy, and without even describing what hypothetical standard should be used to assess whether the hypothetical right has been violated.”

Comment Archive

  1. Avatar

    Gotta love that Scalia!!! Had to read his opinion a couple of times 🙂 Seems as if NASA has this problem on a recurring basis. Wasn’t it just in 2007 when numerous folks refused to submit to any background investigation?

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    I wonder who got in their craw to be all up in arms over the background process? Sounds kind of like a Union thing to me but who knows.

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    BW:
    This case has been working its way up through the courts for a few years. I also like Justice Scalia’s written opinions and his strict constructionist views. Once again the 9th Circuit Court (in San Francisco of course) arrived at what they thought should be in the constitution rather than what is actually there. 8-0, what put down for the 9th and vindication for the district court judge.

    This case could have had a much broader impact than just PSIs. If the court would have recognized a Constitutional right to “informational privacy” it could have had a negative impact on all government investigations, including criminal investigations. LEOs would have to have probable cause or at least reasonable suspicion before investigation a suspect and how do you do that without investigating. What were those [email protected]*&#? at the 9th court thinking.

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    I’m not sure how I feel about the Privacy Act and background investigations in the first place. I can’t tell you how many times sources either declined to be interviewed after being provided the Privacy Act info or were only willing to provide info as a protected source. In the case of the protected sources, their testimonies can’t be used for adjudication purposes so, if the info can’t be corroborated, it’s basically useless, even though sometimes it’s the most valuable info collected.

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    Anyone watch the State of the Union address? I wonder who we are going to be reorganized under?

    Anyway to get a general message board on this site instead of just posting under the articles?

    I have a feeling there should be more traffic as I received an email from the higher ups, that went to everyone, pointing to this site as a good resource for information.

  6. Avatar

    Fed. Investigator:
    Well, if I knew that OPM management was tuned-in I might have been more circumspect in my choice of words–I have occasionally said some unflattering things about OPM. Perhaps they have only visited the area where my articles are posted over at the main ClearanceJobs.com website. I’m retired, but others may want to Google the “Hundred Flowers” movement.

  7. Avatar

    I wouldn’t worry about saying unflattering things about OPM, we all have said them!!!

    They are definitely tuned into this site, as well they should, this is a great place, lots of good information and lots of good discussion!

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    William,

    I wouldn’t consider any of your comments as anything but informative. I echo Fed Inv; this has been “By far” the most informative site I’ve seen. I have learned a “Ton” from all contributors here. For the longest, my focus was very narrow in scope–but now I see the bigger picture because of this board.

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    William

    Great analogy!!!

  10. Avatar

    For those of you who missed it, Glenn Duffie Shriver who pleaded guilty last fall for trying to infiltrate the State Department and the CIA for the Chinese was recently sentenced to 4 years imprisonment. The FBI news release is posted at https://www.justice.gov/opa/pr/michigan-man-sentenced-48-months-attempting-spy-people-s-republic-china

    Regardless of what many people think, polygraph works. I can remember the last time a spy was caught who was recruited by foreign intelligence before he got a security clearance.

  11. Avatar

    William,
    I work as a contractor for the government. In 2009 I applied for secret security clearance and was denied. I appealed and was denied. Eight years ago, I had an 18 month period where my income was down 75%. During this period, I incurred additional debt just to provide the basics for my family. During this time, I focused on the basics for survival. As my income increased again, I focused on current debt. My credit report for the last three years is excellent with no late payments and six credit cards with a zero balance.

    Now I am required to have IT2 clearance or will lose my job. My employer doesn’t want to lose me. I’m married with minor children and the job market in my area is extremely bad.

    I applied for clearance in 2009 and was denied. I appealed and was denied. The problem? I have $72,000 of debts that were beyond the statute of limitations in my state and had not paid on these debts.

    A week ago I presented a very detailed explanation of the past, along with a plan to pay the $72,000 of bad debts. The government security officer won’t present my case to the adjudicator because of two reasons: (1) The security officer insists that my contracting employer provide a letter stating that only I can do the job that I’m in; and (2) I asked for a conditional approval stating that my repayment plan would be overseen by a financial planner and reported to my company security officer, who would report any misses to the government security officer. The government security officer said they wouldn’t do that. (3) I hadn’t started any payments on the $72,000 and just had a plan to do so.

    If I started paying on the old debts, it would start the statute of limitations all over again. If I didn’t get security clearance, I’d be in worse shape than ever. I’m willing to address these bad debts but don’t know how to get across the ‘gatekeeper’ to the adjudicator. Any ideas?

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    To: Bill Henderson or Anyone who knows the answer,
    Will a person be disqualified for the security clearance if this person has stayed at the mental hospital for a week in the past?
    Angi

  13. Avatar

    angiblog:
    Treatment at a mental hospital anytime within the past 7 years will have to be disclosed on an application for a security clearance (SF86). Whether you are granted or denied a clearance will depend on the current state of your mental health and possibly the opinion of a qualified mental health practitioner regarding your prognosis. I wrote 2 articles on mental health–one regarding final clearance and the other regarding interim clearances. They are posted at https://news.clearancejobs.com/2010/03/19/mental-health-and-final-security-clearances/ and at https://news.clearancejobs.com/2010/04/23/mental-health-and-interim-security-clearances/. Recommend you read the article and if you still have a question, you can post it here.

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    Mike Kenzer:

    I’m not sure who you mean by the “government security officer” acting as a “gatekeeper.” If you’re a DOD contractor, your employer can submit your reapplication for a security clearance or a non-critial sensitive (IT2) position one year after you were denied a clearance. DISCO/DOHA treats IT1 and IT2 positions the same as security clearances. The procedure is spelled out in Enclosure 3 to DOD Directive 5220.6 at paragraphs E3.1.37 thru E3.1.41. Paragraph E3.1.38 reads:

    “A reapplication for an security clearance must be made initially by the applicant’s employer to the DISCO and is subject to the same processing requirements as those for a new security clearance application. The applicant shall thereafter be advised he is responsible for providing the Director, DOHA, with a copy of any adverse clearance decision together with evidence that circumstances or conditions previously found against the applicant have been rectified or sufficiently mitigated to warrant reconsideration.”

    There is no provision for anyone to approve a reapplication for a clearance, except the Director of DOHA. If the reapplication is approved, the case is processed by DISCO the same as a new clearance request. Unfortunately, I don’t think you have much of a chance of getting approval for your reapplication. Merely stating a willingness (with or without a plan) to repay your debts only to qualify for government clearance isn’t going to be enough. Security clearance adjudicators evaluate conduct, not legal outcomes. So the fact that the debts are legally collectable due to a statute of limitations does not mitigate the fact that you have been unable or unwilling to pay the debts for the past 7 years.

  15. Avatar

    As usual, I am a day late and out of the loop. What was mentioned in the State of the Union address or what are the other rumors about changes in OPM or a reorganization? Thanks.

  16. Avatar

    I just got back from a one day conference at the site of one of the non OPM contracts I work on. It was a very informative conference. I doubt OPM will ever do something like it.

  17. Avatar

    Mr. Henderson, you are the man, hands down.

    Investigator, why don’t you tell us more about this conference? What made it so informative?

    angiblog, I believe the short answer is ‘it depends.’

  18. Avatar

    Fed Inv,

    I’m not sure any other agencies will be standing in front of the line to take on this beast. I cannot see any other agency that would be a logical fit. Let’s just hope this doesn’t end-up in the hands of DHS. You think things are tough now, just imagine!!!!

  19. Avatar

    I have a feeling there are going to be a lot of changes coming down the pike. Between the roll out of the new SF86 (which, btw, I was talking to a f/t USIS investigator the other day and she had no idea it was coming-hadn’t heard a thing), the feds increasing their investigative workforce and the fact that the budget hasn’t been passed yet… It will be interesting. Also, my understanding is that OPM has made all these changes to the contracts (the ESI requirements, etc) without an increase in compensation to the contractor. These cases take a lot more time to complete than the SPINS but the compensation has stayed the same. I wonder if there’s going to be issues with that as well.

    I have also heard rumors that there are a few agencies that are getting really, really backlogged with their investigations (non-OPM) due to budget constraints. Anyone else heard that?

  20. Avatar

    Contractor,

    I agree things will change. I have a strong suspicion alot of people will quit due to the work without compensation. The lack of additional pay not only effects subs, but the full time staff as well, who will not see pay increases due to funding and shortage of work. I don’t think alot of new full timers will stay either if the budgets don’t support pay raises. Not all companies will survive the next round of contract negotiations with OPM taking back a larger percentage IMHO. Of course, just my .02 and based on gut feelings only. I do foresee OPM having some future troubles as they are hiring at the GS 7 level, which will keep some of the more experienced people away.

  21. Avatar

    Has anyone heard about DOD taking backgrounds back. An investigator I work with came across a DOD investigator the other day saying that. He said DOD was unhappy with OPM.

  22. Avatar

    Contract Inv,

    I think he/she is full of it. There are some folks on a DoD contract through contract companies. Many companies hold various contracts….ie….Air Force, National Guard…..