Solicitor General Appeals HSPD-12 Case to Supreme Court

Solicitor General Elena Kagan

Solicitor General Elena Kagan

On Monday, Solicitor General Elena Kagan, filed for a writ of certiorari before the United States Supreme Court, requesting a review of a Ninth Circuit Court of Appeals injunction that protected employees at NASA’s Jet Propulsion Laboratory from intrusive, open-ended, background investigations under of Homeland Security Presidential Directive #12 (NASA and Caltech vs. Nelson et al. No. 07-56424). If granted, the writ would permit the Supreme Court to hear arguments and rule on the legality of government investigations into the private lives of federal contractors who do non-classified work.

Kagan requested that the Supreme Court overturn an en banc decision of the Ninth Circuit Court issued on June 4 of this year. The June 4 ruling had denied a motion from the Department of Justice for an en banc hearing (a hearing before a large panel of the Ninth Circuit) on the question of overturning an injunction issued last year against NASA and the California Institute of Technology by a three-judge panel of the Ninth Circuit. The lower court ruling was unanimous in favor of the JPL employees.

The plaintiffs in the case have 30 days to respond to the Solicitor General’s petition

Considerable interest in this case centers around the demand by Caltech that every JPL employee ‘voluntarily’ agree to submit to an open ended background investigation, conducted by unknown investigators, in order to receive an identification badge that was compliant with HSPD-12. The government argued that there were no limits to the extent of the investigation. If an employee refused to ‘volunteer’, Caltech would terminate the employee. Caltech manages JPL for NASA.

As a JPL scientist and the lead plaintiff in the case, I said, ‘We are, of course quite disappointed. The Solicitor General has opened a Pandora’s Box, permitting the Supreme Court to possibly erase all protections that citizens might have against government snooping into the most intimate details of their private lives. The government could engage in a wholesale invasion of privacy.”

Bob Nelson

Bob Nelson

All documents relevant to this case are posted at

Robert M. Nelson



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