PASADENA - JPL employees returned to court Wednesday as a
panel of three federal judges heard arguments about extending
a temporary injunction against NASA's new employee background
The 9th U.S. Circuit Court of Appeals judges posed sharp
questions to the government lawyer about the necessity of the
background checks, which include questions about drug use and
drug treatment, as well as an open-ended waiver releasing
The new checks, required of all Jet Propulsion Laboratory
staff members, come as a result of a presidential directive
seeking more secure forms of identification for federal
employees in the wake of Sept. 11.
Their roll-out this summer prompted 28 JPL employees to sue
Caltech, NASA and the Department of Commerce over invasion of
"The record is incredibly thin in justifying the
investigations," Virginia Keeny, a lawyer for the JPL
plaintiffs, told the judges.
Mark Stern, lawyer for the Department of Justice, tried to
downplay any privacy or constitutional concerns.
"We are so far away in this case from any case recognizing
a constitutional privacy problem," he said. "All that is
happening is that the contract employees are filling out the
same form that competitive civil service employees have filled
Caltech lawyer Mark Holscher argued that the college should
not be included in the injunction because it objected to the
requirements and is not
involved in the collection of employee information.
Most contentious were Stern's arguments, during which
sparks flew in the normally calm courtroom.
"It's really much better if you don't distort the record,"
Judge Kim Wardlaw chided at one point after Stern described a
questionnaire as having only multiple-choice questions.
"I have a copy of the form. It asks if there is anything
else, and there are blanks," she said.
The panel asked few questions of Keeny, however, and had
words of praise.
"You've done a good job. I don't want to interfere, keep it
up," Judge David Thompson told her part way through her
Three other Court of Appeals judges had granted an
emergency injunction against the background checks on Oct. 5,
just hours before JPL staff members who did not complete the
required forms were to be "voluntarily terminated."
A week later, they extended the injunction, which a
district court judge had originally denied, until lawyers'
arguments could be heard Wednesday.
"Appellants raise serious legal and constitutional
questions, and the balance of hardships tips sharply in their
favor," they wrote in their decision. "This court has
recognized the right to informational privacy."
Wednesday's hearing was attended by approximately 50 JPL
employees and their supporters, who filled the courtroom and a
dining area in which the proceedings were televised.
Though appellate court judges could take months to announce
their decision, Keeny expected they might reach a decision
about extending the injunction soon.
The case for a permanent injunction is expected to heard in
district court next year.
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