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JPL Employees Respond to Solicitor General's Bid for Supreme Court Review

On February 3, JPL employees filed their response to the Solicitor General's petiton for a writ of certiorary before the United States Supreme Court (NASA et al. v. Nelson et al., No. 09-530). The Government seeks to overturn a lower court's injunction that protects Caltech employees at NASA's Jet Propulsion Laboratory from intrusive, open ended background investigations under Homeland Security Presidential Directive #12. The employees' brief asks the high court to deny the review and to determine that
... the court of appeals correctly concluded, based on the as-yet undeveloped factual record before it, that a preliminary injunction was warranted because "serious questions" regarding respondents' informational privacy claim were raised by NASA's decision to institute - for the first time in more than 50 years - background investigations of low-risk, long-time employees of the California Institute of Technology (which operates the Jet Propulsion Laboratory under a contract with NASA), including investigation regarding medical treatment or counseling for drug use and any "adverse" information about the employee, which could include investigation into private sexual matters.
The petition to review the case will be granted if at least four of the nine justices favor it.

Our superb legal team -- Hadsell, Stormer, Keeny, Richardson & Renick LLP -- is one of the nation's premier civil rights firms, and has given generously of their time to fight for our rights. With further legal proceedings contemplated and expenses mounting, we are urging supporters to contribute to the legal fund. Please send your donations, payable to "HSKRR", to Bob Nelson, 775 N. Mentor Ave., Pasadena, CA 91104.
Status

Current Status as of January 31, 2010

  • Injunction: For Caltech employees in non-sensitive positions at JPL, the injunction in place means that NASA
    • cannot require new HSPD-12 background investigations or proceed with the investigations initiated before the injunction was ordered;
    • can issue new HSPD-12 badges to those adjudicated favorably prior to the injunction.
  • Court Case against NASA:
    • A three-judge panel of Federal Appeals Court for the Ninth circuit has found that HSPD-12 investigations unconstitutionally violate employees' privacy. DOJ's petition to re-hear the case en banc has been subsequently denied. new! On November 2, 2009, U.S. Solicitor General Elena Kagan petitioned the Supreme Court for writ of certiorari. On February 3, 2010, the employees asked the court to deny the petition. Lower court proceedings are stayed for the duration of the Supreme Court proceedings.
  • Caltech involvement:
    • The Appeals Court directed that any temporary injunction be extended to Caltech as it appeared to be "...a willful and joint participant in NASA's investigation program".
    • The District Court has dismissed all claims against Caltech. Employees-Plaintiffs appealed the dismissal as inappropriate. The Appeals Court ruled that it lacks jurisdiction to hear the appeal until after a final judgment in the NASA case is entered, and reserved the right to hear the appeal at the appropriate time.


Dr. Robert Nelson, lead plaintiff, provides a brief summary of the case in an interview with Law and Disorder Radio (audio also available here, at 8:30 minute mark).

The Injunction is IN EFFECT

In a major victory for JPL employees, on January 11, 2008 (amended June 20, 2008) a three-judge panel of the Federal Appeals Court for the Ninth Circuit ordered an injunction against NASA's and Caltech's implementation of the HSPD-12 background investigations. The panel found that the existing process violates employees' privacy rights, and is not narrowly tailored to a legitimate need.

The panel also found that Caltech's declared policy of terminating those not complying with the rebadging requirement "raises serious questions as to whether the university has in fact now become a willful and joint participant in NASA’s investigation program".

On March 13, Judge Otis Wright (presiding judge in the District Court) ordered Government defendants to "cease any further investigations of employees", pending resolution of the case. Under Judge Wright's ruling, however, NASA is allowed to issue badges to "those employees who have already cleared their background investigations".

Judge Wright has dismissed all claims against Caltech, a private University which manages JPL for NASA.

For more details on the legal case, please see the Lawsuit(Updated 2/3/10) and Timeline(Updated 2/3/10) pages.

We have heard reports attributed to plaintiffs' attorney Dan Stormer that the Appeals Court decision is applicable to all of NASA, possibly all federal employees. We do not know the origin of these reports but the statement has been propagated in the media. Obviously, the decision by the Ninth Circuit court potentially has broad applications. Certainly, it applies to all employees at JPL. Employees in other jurisdictions are encouraged to take the opinion of the Ninth Circuit Court to their attorneys and ask about the relevance to any given situation.


Statement

Other News:

  • NASA HSPD-12 badge holder is a health hazard.
  • NASA again posted the "suitability matrix" on its website, as Attachment 2, "Office of Personnel Management Issue Characterization Chart" in NASA Desk Guide for Suitability and Security Clearance Processing (local copy is still available). It mentions "carnal knowledge", "attitude", "sodomy", "keeping house of ill repute", "bestiality", "displaying of obscene material" as disqualifying factors. "Cohabitation, adultery, illegitimate children" could also be disqualifying.
  • January 31, 2008. Robert Nelson, Dennis Byrnes and Susan Foster, plaintiffs in the matter Nelson et al. vs. NASA, Dept. of Commerce and Caltech, on behalf of concerned Caltech employees at JPL wrote a letter highlighting the Appellate Court injunction decision and seeking help and support from the broader Caltech academic community. This and previous letters, as well as other material distributed to JPL and Caltech community can be found on the Reference Documents page
  • In the ongoing proceedings in the District Court, plaintiffs move to certify the following class (suppl.) for injunctive and declaratory relief:
    All current and future employees and subcontractors of the California Institute of Technology hired to work at the Jet Propulsion Laboratory, or required to have physical or electronic access to that laboratory, who hold "non sensitive" or low risk positions, and are required to complete OPM Standard Form 85 and submit to a background investigation as set forth in NASA Interim Directive 1600.1.
    Plaintiffs are seeking certification as an injunctive relief class, which is a common method to obtain broad based injunctive relief under the federal rules of procedure. Plaintiffs believe certification, if granted by the court, will ensure that any injunction ultimately entered applies to all employees and contractors working at JPL. Federal defendants are opposing any class certification.
  • See more details on the Lawsuit, Press releases, and Media Coverage pages.

Other new things on this site

  • Interactive timeline of the court proceedings and the associated events.
  • If you want a T-shirt, button, mousepad, or mug, please visit cafepress.com/hspd12jpl. This is the recommended way for people outside of the local area to acquire these items. (JPLers can also get one by contacting the webmaster.) We don't get any of this money, but it is still a great way to show your support!
  • JPL scientists call for senate inquiry. Read their letter, which is also archived on the reference documents page.
  • See an informational brochure you can print and distribute yourself. It's on the reference documents page, too.

Outside JPL

  • On June 3, 2008 U.S. Reps. Kucinich and Davis addressed HSPD-12 among other NASA workforce issues in the context of NASA's budget authorization:
    ...we recommend that H.R. 6063 include a provision that requires that NASA halt implementation of its new policy of reinvestigating employees in low-risk positions, until the constitutionality of this process is fully settled by the Courts. The President issued Homeland Security Policy Directive #12 to mandate that all civil servant and contractor employees who have access to federal facilities be subjected to standard background checks and be issued standardized badges that can allow Agencies to reliably verify an employee's identity. While we do not object to this security measure, its implementation has been flawed. NASA has used HSPD-12 to instigate a new security policy, NPR1600.1, which establishes periodic reinvestigation of long-time NASA civil-servant employees who have already passed earlier background checks. Furthermore, the affected positions include those rated as low-risk. The process is so intrusive, the 9th circuit Court of Appeals issued an injunction preventing its implementation for the Jet Propulsion Laboratory contract employees pending judicial review. Regrettably, NASA has decided to interpret this injunction narrowly and to move forward with re-investigations of low-risk civil-service employees using the same constitutionally suspect process. We believe that the decision to go beyond HSPD-12 and to subject NASA's civil service employees to an unnecessary, expensive and intrusive invasion of privacy is unwarranted and unwise.
  • On April 9, 2008, U.S. House of Representatives Subcommittee on Government Management, Organization and Procurement (Committee on Oversight and Government Reform) held a hearing, "Federal Security: ID Cards and Background Checks."

    "The hearing [released] a new Government Accountability Office (GAO) report finding that the program is incurring high costs but providing little benefit to date..."

    Letters written to the committee are on our Forum. We encourage you to post yours as well.
  • No federal agency met the October 27, 2007 deadline to complete the HSPD-12 background checks
  • IRS wasted millions of dollars implementing HSPD-12, according to an Inspector General report. The same report cites the estimated 14-year cost of implementing HSPD-12 at the Dept. of the Treasury (with 1.5x as many personnel as NASA), at $421 Million, a bit over the cost of a Mars scout mission
  • NASA's Johnson Space Center employees and contractors are concerned about HSPD-12.
  • Ames Federal Employees Union is concerned about aspects of HSPD-12 rebadging.
  • Contractor employees of U.S. Department of Education have a problem with the "security screenings".


Overview
Welcome to the fight against JPL's rebadging process. This site contains information about why the $6 million rebadging process is unfair, unethical, and illegal. Read about it for yourself, and if you agree with us, join our fight against it!

You may be shocked when you find out what is really involved, how dangerous it is, and how much of your freedom you are giving up. To get rebadged, you don't simply provide information on forms-- you provide information that begins an investigation of you.

Did you know:
  • That the release form on the SF85 or SF85P authorizes an investigator to obtain "any information" on you from schools, residences, employers, criminal establishments, and any other sources, and that the investigation is explicitly "not limited"?
  • That each of the neighbors, supervisors, and references you are required to provide will be sent a questionnaire asking about your "mental or emotional stability," "financial integrity," and "abuse of alcohol and/or drugs," among other things?
  • That SF85 remains in effect for two years, whether or not you stay at JPL? In other words, federal agents can use your SF85 release as permission to investigate you for two full years, even if you are no longer affiliated with a federal agency
  • That the new rules prevent JPL from issuing retiree badges?
  • That the official SF85 and SF85p forms describe the process as "voluntary," but that jpl will terminate your employment if you don't fill it out?
This is just a sampling of why the process is causing concern. If these provisions worry you even a little, you may want to read the FAQ and in-depth research to learn more.

If you are new to how HSPD-12 works at JPL, you may also want to read this overview of HSPD-12 and the JPL rebadging process.

Last updated: February 3, 2010
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