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Saturday, January 12, 2008

S.F. appeals court bars government's probes of NASA scientists

A federal appeals court barred the Bush administration Friday from looking into the personal lives of NASA scientists and engineers who have no access to classified information, saying the probes are intrusive and unrelated to national security.

The planned inquiry into the employees' backgrounds, finances, alcohol and drug use, mental state and unspecified additional issues amounted to a "broad inquisition" with "absolutely no safeguards" that would limit disclosures to topics that are important to the government, said the Ninth U.S. Circuit Court of Appeals in San Francisco.

The ruling came in a lawsuit filed by 28 scientists and engineers at the Jet Propulsion Laboratory in Pasadena, who were about to be fired in October for refusing to submit to the background checks when another panel of the court issued an emergency order.

The employees "face a stark choice - either violation of their constitutional rights or loss of their jobs," Judge Kim Wardlaw said in Friday's 3-0 ruling.

Their lawyer Dan Stormer said the ruling also applies to workers at NASA's Ames Research Center in Mountain View and other NASA operations in the nine Western states covered by the Ninth Circuit.

After a hearing later Friday at which a federal judge in Los Angeles formally issued the injunction, Stormer said NASA had announced it would refrain from conducting the investigations of similar employees at any of its installations nationwide. NASA representatives were unavailable for comment.

"This is a tremendous vindication of the constitutional rights of my clients, all loyal, hardworking scientists who have dedicated their lives to the space program," Stormer said.

The injunction is to remain in effect until the case goes to trial. The government could appeal the ruling to the Supreme Court.

The 28 employees, most of them with at least 20 years' service, all work for the California Institute of Technology under contract to the NASA-funded Jet Propulsion Laboratory. When hired, they underwent routine background checks of their identity and criminal records, their lawyers said.

The new investigations were ordered by a number of agencies, including NASA, after President Bush issued a homeland security directive in 2004 requiring that employees at federal installations have "secure and reliable forms of identification."

To keep their jobs, employees at the agencies are required to authorize the government to seek information about them from any source, including former employers, landlords, schools and acquaintances. The sources can be asked if they have any negative information about an employee's work, truthfulness, finances, alcohol or drug use, emotional stability, overall behavior or "other matters," the court said.

Lawyers for the employees said the inquiries also may include their sexual orientation and their overall attitude.

The appeals court said it saw no relationship between Bush's 2004 order for a secure identification program and the wide-ranging investigations of "low-risk" employees. Likewise, a 1958 federal law allowing the government to fire employees who threaten national security applies only to those in sensitive positions, the court said.

The scope of the inquiry also may violate the employees' privacy rights, Wardlaw said.

The "open-ended and highly private questions are authorized by this broad, standardless waiver (that employees must sign) and do not appear narrowly tailored to any legitimate government interest," she said.

Feds ask judge to dismiss smart-ID case filed by NASA contractors
Workers claim background checks mandated under new security program are too intrusive

The U.S. District Court in Los Angeles will hold a hearing Friday on a motion to dismiss a case involving 28 NASA contractors suing the government over background checks that are required under a mandatory smart card credentialing program.

The contractors are senior scientists and engineers at the Jet Propulsion Laboratory (JPL), which is staffed and managed for NASA by the California Institute of Technology (Caltech).

The group filed suit last August in Los Angeles District Court against the U.S. government, NASA and Caltech, challenging what they claimed were overly intrusive background check requirements by NASA. The 28 JPL employees asked the court to not only permanently stop the background investigations but to also issue a preliminary injunction to halt the checks while the case was considered.

The background checks that were at the center of the issue were required under the Homeland Security Presidential Directive-12 of August 2004, a presidentially mandated smart-card credential program. HSPD-12 requires federal agencies to issue new tamper-proof smart-card identity credentials called Personal Identity Verification (PIV) cards to all employees and contractors. As part of the program, all employees and contractors are required to submit to comprehensive background checks, including criminal histories.

Federal agencies were supposed to have completed those checks and issued PIV cards to all employees with less than 15 years experience by last October, though many failed to meet the deadline.

In their suit (PDF format), the JPL employees claimed that the NASA requirement violated their constitutional right to "informational privacy", the right to be free from unreasonable searches and the right against self-incrimination. The scientists argued that none of them were doing any classified work for NASA and said the mandated background checks were too open-ended, and pried into "protected associational activities." They claimed the checks submitted them "to a determination of their suitability for employment that includes such wrong-headed and/or dangerously vague criteria" such as sexual orientation as well as medical and emotional history.

The judge hearing the case initially dismissed it on October 3. However following an appeal by the employees the Ninth Circuit Court of Appeals issued a temporary injunction on October 5. The injunction was issued literally hours before JPL was to begin advertising for replacements for employees who were deemed non-compliant with HSPD-12, according to a press release announcing today's hearing from one of the plaintiffs.

That temporary injunction still remains in place. A three-judge panel of the United States Court of Appeals for the Ninth Circuit is still deliberating whether to extend it.

In the meantime both Caltech and the government filed motions for dismissing the case in District Court. Those motions were allowed to continue by the Ninth Circuit court. On January 9, District Court judge Otis Wright, who is presiding over the case, issued an order dismissing Caltech as a party to the lawsuit.

Today's hearing is expected to focus on the federal motion to dismiss the case.

"We cannot predict what will happen, and we do not know whether the Ninth Circuit will issue its ruling before the Friday hearing," a statement on the plaintiffs' Web site noted.

It is possible that the judge could postpone the hearing until the Ninth Circuit makes a ruling regarding the temporary injunction, or it could hear arguments on the motion to dismiss and then postpone its decision until hearing from the Ninth Circuit, the Web site noted.

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