The New York Times
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January 12, 2008

Court Allows Scientists to Work at NASA Until Trial Over Background Checks

By JOHN SCHWARTZ

A group of scientists working at NASA’s Jet Propulsion Laboratory won a round in federal court on Friday in their challenge to a Bush administration requirement that they submit to extensive background checks or face losing their jobs.

The United States Court of Appeals for the Ninth Circuit, in California, issued an opinion allowing the scientists to continue working until the question of their privacy challenge can be addressed at a full trial.

They had sued the administration over a new domestic security requirement that all contract workers at the laboratory, which is run jointly by NASA and the California Institute of Technology, undergo background checks and identification requirements. The 26 scientists and engineers filing the suit, whose jobs the government classifies as “low risk,” argued that the background checks, which could include information on finances, psychiatric care and sexual practices, constituted an unacceptable invasion of their privacy.

The government, which is requiring the upgraded security review at every federal agency, argued that the contract employees be held to the same standard.

A lower court had denied the scientists’ request for an injunction to block the background checks; in the opinion released Friday, the court of appeals reversed that decision and sent the case back to the lower court.

“This is truly a vindication for these scientists and engineers,” said Dan Stormer, a lawyer for the plaintiffs. “They’ve been loyal and hard-working and committed to science and this country — and they’ve been threatened with the loss of their jobs simply because they stood up for their constitutional rights. Any way you address that, it’s wrong.”

The government, Mr. Stormer added, had taken a “talismanic use of the word ‘terror’ to overcome constitutional protections.”

The court’s language was strong, stating that the questions asked on the government’s forms for the background checks were so “open-ended and highly private” that it was “difficult to see how they could be narrowly tailored to meet any legitimate need” and there were “absolutely no safeguards in place to limit the disclosures to information relevant to these interests.” NASA, the court ruled, had proved no damage that would come to the agency if it could not carry out the background checks.

Michael Cabbage, a spokesman for the National Aeronautics and Space Administration, said, “NASA will, of course, comply with any rulings from the court of appeals.”