NASA employees continue HSPD-12 fight
The plaintiffs and some observers say the ensuing legal battle has raised questions about the federal government’s background investigation methods and the constitutionality of the trigger event: Homeland Security Presidential Directive 12. The process also exposed the agency’s laundry list of workforce problems, union officials say.
The latest ruling in the court battle came June 20, when Judge Kim McLane Wardlaw, writing for the U.S. Court of Appeals for the 9th Circuit, determined that federal government investigations violated the privacy of JPL employees.
“This latest decision cuts back on the court’s earlier decision as it no longer is finding an [Administrative Procedure Act] violation,” said the JPL employees’ attorney, Virginia Keeny. “That’s disappointing, but it is finding the investigations are a privacy violation under the Constitution.” APA governs the processes agencies use to create regulations.
Under the National Aeronautics and Space Act of 1958, NASA can perform security checks of employees without violating the APA, the court said.
In November 2005, the agency extended its requirement for National Agency Check with Inquiries (NACI) investigations to its contractors, which include all 5,467 JPL employees. The California Institute of Technology operates JPL under contract from NASA.
The court also agreed that Caltech is a defendant. That’s an important point “because Caltech and not NASA is the one that cooked up the scheme to fire people who refused to sign Form 85,” said Robert Nelson, lead plaintiff in the suit and lead scientist for NASA’s New Millennium Program to advance space flight technology.
Standard Form 85 is the Office of Personnel Management’s questionnaire for nonsensitive positions. The court ruled that the government may ask employees and job applicants, as it does on Form 85, whether they have used, possessed, manufactured or supplied drugs.
Questions in question
However, Judge Wardlaw ruled, it may not ask them to disclose “any treatment or counseling received” for their drug problems. “Information relating to medical treatment and psychological counseling fall squarely within the domain protected by the constitutional right to informational privacy.”
In signing SF85, however, job applicants and employees
authorize the government to send OPM Investigative Request for Personal Information Standard Form 42 to references, employers and landlords. The open-ended questions seek personal information, including any adverse information to determine an applicant’s suitability.
“These new investigations are draconian,” said Matthew Biggs, legislative director of Washington-based International Federation of Professional and Technical Engineers (IFPTE). Under SF42, he said, “they can ask: ‘Why did you get a divorce? If I ask your friends and family, will I get the same answer?’ ”
“It has nothing to do with suitability for a job as a scientist or engineer,” he added.
The NASA Desk Guide for Suitability and Security Clearance Processing lists attitude, bad credit, vandalism, counterfeiting and sexual conduct among its areas for investigation.
“That was posted [on NASA’s internal Web site] for a fairly long period of time,” said Keeny, a partner at the Pasadena, Calif., law firm Hadsell Stormer Keeny Richardson and Renick LLP. “NASA never disavowed that those were the criteria to determine suitability.”
However, the larger point “goes to p residential directives and whether they’re subject to review or are outside our governmental system of checks and balances,” Nelson said.
The defendants — NASA, the Commerce Department and Caltech — are appealing the ruling, NASA spokesman Michael Braukus said. Meanwhile, he said, “HSPD-12 is continuing to be implemented throughout the agency.”
Dr. Lee Stone, Ames research psychologist and local IFPTE federal employee union legislative aide, blames the series of events on NASA Administrator Michael Griffin. The administrator is empowered to tailor SF85 and associated investigations as appropriate for the specific situation, Stone said.
“NASA management could have accommodated the reasonable concerns of JPL and NASA employees, had they wanted to,” he said.
Testifying in October, Cozette Hart, JPL’s human resources director, said all JPL employees are subject to background investigations, although low-risk employees are subject to “less comprehensive background investigation than the moderate and high-risk positions.” More than 97 percent of JPL employees are classified as low risk, she said.
The plaintiffs point out that because NASA has already conducted background investigations on many employees, HSPD-12-specific investigations are not necessary. Ames employees have their new HSPD-12-approved personal identity verification (PIV) badges, based on their existing background checks, Stone said.
“NASA — and all federal agencies — should focus their limited resources on bona fide security threats instead of working to get NASA [employees] to describe the infidelity that resulted in their divorce or explain why they sought counseling when their spouse got cancer,” Stone said.
The investigations abrogate the reasons many work at JPL, Nelson said.
“Bruce Murray, who was the fifth director of JPL, used to tell me that one good thing about working for JPL is that you can go home and tell your wife and kids exactly what you did at work today,” Nelson said. “If you’re an engineer at JPL you can say, ‘I drove the Mars Rover.’ That’s something you can’t do if you work for some other agencies or for a defense contractor. It’s a real [attraction], because it goes to the definition of self.”
This case has a wider significance than JPL employees’ privacy concerns, Keeny said. A request by defendants for a rehearing or an en banc review, which is a review by a larger panel of judges, could take months to set up, she said.
“HSPD-12 needs to be reconsidered governmentwide, and we would hope that a new administration would consider that,” Keeny said.
No real surprise
HSPD-12 mandated standardized identity credentials for federal employees and contractors. Commerce developed technology standards for PIV cards, which the National Institute of Standards and Technology published in 2006 as Federal Information Processing Standards 201 (FIPS-201).
Since then, agencies have available implementation and interoperability guidelines, lists of compliant products, implementation and background-check progress reporting requirements, sample documents, credential-testing resources, and Web sites that answer frequently asked questions.
NASA’s problems with HSPD-12 were predictable, said Ari Schwartz, associate director of Washington-based Center for Democracy and Technology.
“With JPL, you’ve got all these people going through new background checks to issue cards before you have in place the policy framework to understand what level of authentication is needed,” he said. “And that’s a direct consequence of trying to implement the technology before you have policies in place governing how you implement it.”
Schwartz’s commen t on the draft version of FIPS-201 foretold the implementation problems. Privacy advocates are “concerned that the technical standards for the PIV are moving forward without an adequate policy framework,” he wrote in December 2004. “The failure to adopt policies before technologies are developed and procured puts at risk both the privacy and security of cardholders and the systems involved.”
The big picture
The clash over HSPD-12 has widened the discussion to include other workforce issues at NASA.
In its agencywide October 2007 NASA Culture Survey, the agency polled employees about their perceptions of life at the agency. Interpretations of its results differ.
Reps. Dennis Kucinich (D-Ohio) and Danny Davis (D-Ill.), members of the House Federal Workforce, Postal Service and the District of Columbia Subcommittee, wrote in June that “over the last seven years, NASA’s workforce has experienced turmoil and uncertainty, leading to a decrease in morale as indicated by the results of NASA’s recent ‘Culture Survey.’ ”
NASA Chief Human Capital Officer Toni Dawsey disagreed.
“The survey showed pockets in organizations where morale” might have dropped or be lower than it is elsewhere in the agency, she said. “But overall morale is high. We are looking at those organizations with the highest morale and benchmarking them to give them to all agency organizations so we can improve morale agencywide.”
Upcoming employee job cuts will make that challenge more difficult. A Government Accountability Office report in August said NASA projects that by fiscal 2012 the total number of employees needed to meet its strategic goals will decrease from 18,100 to 17,000.
The agency is exacerbating the brain drain and depleting morale by pushing for early-outs and buyouts, in addition to reductions in force of potentially thousands of employees by 2010, the IFPTE’s Biggs said.
Hart testified in U.S. District Court for the Central District of California that she wasn’t worried, that the agency had received more than 10,000 responses to fewer than 600 job listings in 2006.
But scientists and engineers, who comprise 60 percent of JPL staff members, Nelson said, “are the hardest people to recruit, because we have to recruit from the 90th percentile. The average engineer or scientist doesn’t cut it at JPL — the level here is just too high.”
Not only is the agency not contemplating widespread layoffs, Dawsey said, “the buyouts and early-outs are only authorized for employees who don’t have the critical skills and competencies NASA will need. It’s a way to avoid having to” lay off employees.
NASA also is moving on other fronts. Despite criticism that the agency has been slow to implement a pay-for-performance system, the agency last year moved to a five-level system, a pre-requirement for it, and is evaluating the move to pay for performance, she said.
The agency’s scholarship program in 2006 awarded $5 million to 177 students, and it continues to fund its Graduate Student Researchers Program, Dawsey said.
Ames’ Stone cited the trend toward hiring new scientists and engineers as short-term rather than permanent employees. The practice undercuts the building of a workforce with deep, broad and long-term experience, he said.
The practice allows NASA to hire people who have skills needed for a project but not long term, Dawsey explained.
Much of what passes for workforce problems are actually funding problems, Stone said.
“Internal NASA research and development funds have been so severely cut across the board over the last six years, that many NASA researchers have had to apply for external reimbursable funding [such as from DOD or the National Institutes of alth] to continue their long-standing research efforts,” he said.
Those projects “are directly linked to NASA’s mission but are being orphaned by short-term and short-sighted political guidance.”
President Bush’s 2004 Vision for Space Exploration called for creating colonies on the moon and putting a man on Mars, “but it’s not funded,” Biggs said. Budget increases don’t even cover cost increases caused by inflation, he said.
And funding seems unlikely to improve under the new administration. Despite the problems, Dawsey said she refuses to be pessimistic. “At NASA, the mission is the draw,” she said. “It always has been.”
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