On January 19, 2011 the U.S. Supreme Court announced that it had decided in favor of the government in the matter of NASA, et al., v. Robert M. Nelson et al.
In a unanimous decision, the court found that the questions the 28 JPL employees challenged were appropriate for the protection of JPL as a federal facility. In the opinion released by the court, there was no mention of the access to the Space Shuttle controversy, however, throughout the document the court frequently used the phrase “long-term access to federal facilities” in describing the need for the intrusive background checks.
The U.S. Supreme Court decision can be found here.
The controversy around the mention of the Space Shuttle became an issue when the acting Solicitor General Neal Katyal made remarks before the Supreme Court that were, according to plaintiff Bob Nelson, inaccurate.
General Katyal, who was arguing that the Court should overturn an injunction protecting the plaintiffs from the unconstrained investigations, overstated the ease with which NASA contractors can access the space shuttle. As part of Katyal’s justification for NASA’s unlimited background investigations of low-risk JPL employees, he told the Court that the identification badge that NASA proposes to issue to the employees is “such an important credential that it would allow them to get within, for example, 6 to 10 feet of the space shuttle as it’s being repaired and readied for launch.”
Robert M. Nelson, on behalf of the JPL employees, wrote letters to Attorney General Eric Holder and NASA Administrator Charles Bolden requesting a public retraction of General Katyal’s claim that low-risk employees could get within 10 feet of the shuttle. The scientists said that NASA’s own rules ensure that no identification badge of any type is alone sufficient to permit employees to get near the shuttle.
Justice Department spokeswoman Tracy Schmaler refused to make a correction and told the Washington Post, “The solicitor general’s office worked closely with NASA officials in preparing for this case, including the use of the space shuttle example in the argument, and in no way misled the court.” NASA declined to correct Katyal’s statement, but neither did NASA confirm it.