Update on JPL Intrusive Background Check Case

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Bob Nelson

On Friday April 25, 2008, the Ninth Circuit Court of Appeals declined to review its earlier decision issuing a temporary injunction preventing NASA and the California Institute of Technology from conducting intrusive personal background investigations of employees at the Jet Propulsion Laboratory in Pasadena.

The government had petitioned all of the judges of the Ninth Circuit Court for a review of a January 11, 2008 ruling by a three-judge panel of the Ninth Circuit that issued a temporary injunction stopping the investigations until a full trial is held in federal district court.

The court denied the government petition for en banc review stating:

“The Court’s January 11 decision takes effect. The three-judge panel has previously declined panel rehearing, and no judge of the circuit elected to call for a full court vote . The legal conclusions of the January 11 order became the law of the 9th Circuit.

The judgment of this Court, entered 01/11/2008, takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure.

The ruling means that the matter is sent back to federal district court for a trial on the full merits of the case.

Robert M. Nelson (pictured) — a Senior Research Scientist at JPL and the lead plaintiff in the JPL case — said, “We are pleased that the Ninth Circuit Court of Appeals has reaffirmed its earlier decision. Intrusive personal background investigations of loyal federal employees constitute a violation of basic civil liberties that our constitution guarantees to all.”

The JPL legal case evolves from a hearing last year in which employees of NASA’s JPL sought injunctive relief against their employer, Caltech, and NASA in order to prevent intrusive personal background investigations. Caltech and NASA argued that these intrusions were required under Homeland Security Presidential Directive #12, an executive order signed by President George W. Bush. Most JPL employees (including all of the plaintiffs in the case) do no classified work.

Federal District Judge Otis Wright III dismissed the case on October 3, 2007. The employees appealed to the Ninth Circuit Court of Appeals, and an emergency temporary injunction was granted on October, 5 2007, just hours before JPL was to begin advertising for replacements for those employees who were deemed non-compliant.

A second panel of the Ninth Circuit Court heard arguments on this case on December 5. On January 11, 2008, the Ninth Circuit Court of Appeals found that “The Appellants have demonstrated serious questions as to certain of their claims on which they are likely to succeed on the merits, and the balance of hardships tips sharply in their favor. We therefore conclude that the district court abused its discretion in denying Appellants’ motion for a preliminary injunction, and we reverse and remand.” In addition, the Ninth Circuit Court reinstated Caltech as a defendant in the case stating, “The court found Caltech did do more [than merely follow government orders] it established, on its own initiative, a policy that JPL employees who failed to obtain federal identification badges would not simply be denied access to JPL, they would be terminated entirely from Caltech’s employment.”

All court documents relevant to the case can be found at HSPD12JPL.org

[From a press release submitted by Bob Nelson]

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Comments

  1. says

    With today’s advanced technology, we don’t even have to have to hire a personal investigator to perform a personal background check for us. Now, we can do our research from the privacy of our homes, through the use of internet. However, if you are an employer, landlord, or lender, then the Fair Credit Reporting Act (FCRA) applies to you, and you must get written permission from the applicant (for job, appartment, or loan) before you purchase a background search on him.

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