JPL law suit moves to the high court

By Mary O’Keefe

On Monday the Supreme Court of the United States agreed to review a Ninth U.S. Circuit Court of Appeals injunction that temporarily banned background checks of Jet Propulsion Laboratory employees.

In August 2007, 28 scientists and engineers from JPL filed suit against NASA for its newly required background checks. The employees contend the checks were extensive and violated the constitution and their rights.  The Ninth Circuit Court of Appeals had placed a temporary injunction stopping NASA from requiring the background checks. The court found the workers had raised serious legal and constitutional questions. The U.S. Supreme Court will review that Ninth Circuit Court decision.

“We were very surprised that the [Obama] administration sought review,” said Virginia Keeny, attorney for the JPL employees.

In the past JPL/NASA had required background checks for their employees. In 2007 however new forms were issued that were more extensive in response to a Bush Administration directive titled Homeland Security Presidential Directive 12 (HSPD–12)

With the new background checks the government could inquire about several aspects of an employee’s personal life including their sexual orientation, said Robert Nelson, one of the JPL employees who brought the suit against NASA.

Investigators could go to neighbors and others for information on the employee.

“A neighbor could say something [negative] and that would not only go on our record but we will not be [given a chance] to defend ourselves and then be denied our badge,” Nelson said.

The employees do not disagree with the background checks they had already passed or more extensive checks when required due to work on sensitive government projects.

“All the work we do is in the public domain. We don’t work with classified employees,” Nelson said.

Nelson and Keeny both said they had thought the Obama Administration would not support this type of extensive background check.

“We are appalled that Solicitor General Elena Kagan would pursue this to the Supreme Court,” Nelson said.

“We were surprised the Administration sought review of the Ninth Circuit Courts’ decision. We thought it was very sound…[Since the temporary injunction] business has gone on at JPL with no suggestion of a breach in [national security],” Keeny added.

Although the directive was issued to all government agencies NASA seemed to take a harder line on the background checks than others.

“Only NASA under the present and current administration is taking a [hard line],” Nelson said.

He added it was his understanding that the decision of how extensive the background checks would be was left to the discretion of the agency administrator.

“What we have heard is the [new NASA administrator Charles Bolden] has said his hands are tied in this matter. We believe he has the power [to stop the extensive checks] but says nothing,” Nelson said.

Both Congressmen David Dreier and Adam Schiff as well as many other legislators in Congress have been supportive of the JPL employees.

A response was requested from the Solicitor General’s office. The spokeswoman said she would review the case but no response had been received at press time.