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 checks.

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 personal information.

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 privacy concerns.

"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 out."

Caltech lawyer Mark Holscher argued that the college should not be included in the injunction because it objected to the requirements and is not


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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 argument.

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.

elise.kleeman@sgvn.com

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