On August 30, 2007, twenty-eight senior scientists and engineers at JPL
filed suit against United States government and California Institute of
Technology (Caltech), challenging NASA's unconstitutional requirement of
invasive background investigations. In their complaint, the plaintiffs
asked the Court to permanently stop the background investigations as implemented.
Simultaneously, the plaintiffs requested a preliminary injunction to halt the
investigations while the courts consider the full case. The preliminary injunction,
after an early setback in the District Court and a lightning-speed Appeals Court
reversal, was ordered and granted after a January 11 ruling of the 9th
Circuit Court of Appeals. NASA's investigation scheme was found unconstitutionally violating
employees' informational privacy, and violating Administrative Procesure Act (APA) as not grounded in statute.
On June 20, 2008, the 9th circuit panel vacated its earlier opinion and substituted a new one, denying the
APA claim but affirming the constitutional privacy claim and the balance of hardships analysis.
The Government then promptly petitioned for re-hearing by the panel,
and suggested that the appeals court re-hear the case en banc
On June 4, 2009, the appeals court denied the rehearing petitions.
On November 2, 2009, the Government filed, and on March 8, 2010, the Supreme Court granted the government's petition for a writ of certiorari.
The oral orguments were heard on October 5, 2010, and the decision is pending
The questions presented to the court are:
1. Whether the government violates a federal contract employee's constitutional
right to informational privacy when it asks in the course of a background
investigation whether the employee has received counseling or treatment for illegal
drug use that has occurred within the past year, and the employee's response is
used only for employment purposes and is protected under the Privacy Act, 5
2. Whether the government violates a federal contract employee's constitutional
right to informational privacy when it asks the employee's designated references for
any adverse information that may have a bearing on the employee's suitability for
employment at a federal facility, the reference's response is used only for
employment purposes, and the information obtained is protected under the Privacy
Act, 5 U.S.C. 552a.
On March 13, 2008, The District Court
injunction it issued as directed by the Appeals Court on January 11.
That injunction enjoined NASA from proceeding with HSPD-12 as it related to Caltech employees at JPL.
The Court instead indicated
that it left in force the original, October 5 emergency injunction that suspended the requirement
to submit the SF85 forms and
the waivers. The Court nonetheless indicated that OPM could not proceed with any outstanding investigations.
The modified order came into effect on March 27, 2009.
After finding that Caltech had not been a willful participant in the jointly-implemented background
investigation requirement, the District Court dismissed all claims against Caltech. The Appeals Court ruled that it
lacks the jurisdiction to intervene until after a final judgment in NASA case is entered.
The court has denied Federal defendants' motion to dismiss Informational Privacy and Administrative Procedures
To make sure that any permanent injunction applies to all JPLers, plaintiffs asked the District Court to
certify a class
similarly situated current and future Caltech employees and contractors working at JPL. Federal defendants
oppose any class designation.
A consolidated graphical presentation of the court proceedings can be found on
Read more on the implications of the suit and the proceedings so far on the Press
March 8, 2010
. The U.S. Supreme Court grants the government's petition for a writ
June 4, 2009
. The appeals court denied the petitions by the government defendants to re-hear the
June 20, 2008
. A three-judge panel of the United States Court of Appeals for the Ninth Circuit
vacated the January 11 opinion and issued an amended opinion directing the district court to order preliminary
injunction against Federal Defendants and Caltech.
March 13, 2008
. District Court withdraws
previous (January 11) broad injunction order, allows NASA to issue badges to cleared employees, and orders
Government defendants to cease any further investigations of employees per the Ninth Circuit’s ruling
that the investigations are over broad and not justified by statute.
Legal documents and proceedings:
Filings in the Supreme Court of the United States.
The U.S. Supreme Court has granted
the government's petition for a writ of certiorari. In the Supreme Court, the
proceedings are filed under NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION, ET AL., PETITIONERS v. ROBERT M. NELSON, ET AL.,
Filings in the Appellate Court
(December 5, 2007 Hearing Date, January 11, 2008 decision, June 20, 2008, amended decision). JPL employee plaintiffs (Appellants) move to
reverse the District Court order denying them Preliminary Injunction in the case. On January 11 2008,
the Court reversed and remanded. Nelson v. NASA, Case No. 07-56424.
Separately, the plaintiffs appeal District Court's January 16, 2008 decision to dismiss Caltech. Nelson et al. v. CIT el al. 08-55308.
- Appellants' Opening Brief -- Oct. 25, 2007
- Federal Appellees' Brief -- Nov. 8.
- Caltech Brief -- Nov. 8.
- Appellants' Reply Brief -- Nov 15.
- Union of Concerned Scientists and
Electronic Frontier Foundation Amicus Curiae briefs
in support of the Appellants.
- Court-provided audio
recording of the hearing -- Dec. 5 (WMA format, local copy).
Judges Thompson, Wardlaw and Reed (Nevada District Judge) heard from the Appellants (0:00-26:25),
DOJ for Federal Appellees (26:25-46:06), and Caltech (46:06-56:40).
- (Vacated on June 20, 2008)Unanimous published Opinion, authored by Circuit Judge Wardlaw,
reversing and remanding the District Court order denying Preliminary Injunction -- Jan. 11, 2008.
- Federal defendants petition to
re-hear the case en banc -- Feb. 25, 2008.
- On Court's instructions, plaintiffs
submited opposition to NASA's en banc re-hearing petition -- March 26.
- Court denies
Federal defendants' petition to re-hear the case -- April 10, 2008. Given the recall of Court's mandate on
April 28, this order may have been issued in error.
- On April 25, 2008, the court issues its mandate for the January 11
ruling (subsequently recalled).
- On April 28, 2008, the mandate issued on
April 25 was recalled by the Court.
- On June 20, 2008, the Court vacated the
January 11 opinion, and issued a new opinion,
reversing and remanding the District Court order denying Preliminary Injunction. The court also
dismissed the pending panel and en banc review petitions as moot, and allowed further
petitions to be filed.
- On August 4, 2008 the government
petitions for panel rehearing and
rehearing en banc.
- On September 8, 2008, plaintiffs-appellants filed
to Petition for rehearing.
- On June 4 2009, the court
denied the government defendants their petitions for panel rehearing
and rehearing en banc. The order was accompanied by a published
concurrence and three published dissents
- On June 8, 2009, the defendants
requested and on June 10 the Court
granted a stay of issuance of the mandate pending filing and
disposition of petition for writ of certiorari.
On August 24, 2009, the government requested a 30-day extension
of the stay, based on a petition
to extend the filing deadline (granted on August 25, 2009) for any petition for writ of certiorari to the Supreme Court.
The petition was granted on September 1, 2009.
Further extension, till November 9, 2009, was requested on September 23, 2009, and
granted on September 30, 2009.
- Further proceedings in the Appeals Court
are stayed pending
final disposition by the Supreme Court.
Filings in the District Court.
- Appellants Response to
Court's Order to show cause -- April 7, 2008.
- Caltech responds to Appellants' filing to show cause -- April 16, 2008 (text not available).
On June 16, 2008, the court orders further briefs on
- On July 7, 2008, per
and Caltech file
further briefs on Caltech dismissal.
- On September 12, 2008, the Appeals Court
dismissed the plaintiffs' appeal without prejudice, citing
lack of jurisdiction before a final judgment in the NASA case is entered, or "should Caltech take
action that would work irreparable harm on appellants". The Court
reserved the right to hear the appeal at the appropriate time.
Court Mandate finilizing this decision issued on October 8, 2008.
Robert M. Nelson et al. v. NASA et al. ; docket# 2:07-cv-05669-ODW-VBK;
assigned to Judge Otis D. Wright, II; referred to Magistrate Judge Victor B. Kenton.
Next Hearing Date: None. In the order granting JPL
temporary injunction pending appeal, the 9th Circuit Court of Appeals declined to stay (stop)
the District Court proceedings. The case is therefore proceeding in the District Court. The Court
granted Caltech's motion to dismiss on January 9, 2008, vacated that order after the January 11
and re-issued a similarly-worded order on January 16. Plaintiffs have appealed the Caltech dismissal
order to the 9th Circuit Court of Appeals. Federal defendants' motion to dismiss was denied with respect to
the Informational Privacy claim and Administrative Procedures Act claim. On January 11 the District Court
issued a temporary injunction against NASA. On March 13, the Court vacated this injunction, leaving in place
the limited emergency injunction issued by the Appeals Court emergency panel on October 5.
The parties agreed to postpone most district court proceedings until after the appeals process in higher courts
is exhausted. Judge Wright had set a hearing date for a status conference for July 10, 2008.
The Court then vacated the hearing.
No court appearances are currently scheduled.
Emergency Appeal Proceedings in the US Ninth Circuit Court of Appeals. JPL employee plaintiffs sought to
appeal Judge Wright's ruling to deny preliminary injunction, asked for a temporary injunction pending appeal, and
asked to stay lower court's proceedings. The Appellate Court issued a temporary injunction on October 5, and
extended it on October 11 pending appeal. The motion to stay the lower court proceedings was denied.
The October 1, 2007 District Court Hearing (Judge Otis Wright II). JPL employee plaintiffs seek Preliminary Injunction
to halt the rebadging process while the court is considering the case
Plaintiffs' filings, August 30, 2007. JPL employee plaintiffs seek in the District Court to
enjoin NASA and Caltech from imposing invasive background investigations and standardless
adjudications as conditions for employment at JPL. They also seek preliminary injunction to halt the
process while the Court considers the case.
- First Amended Complaint for Injunctive and
- Federal Defendants' Motion to Dismiss with Exhibits
and a Proposed Order.
Caltech Motion to Dismiss, accompanied by a
Notice of Motion to Dismiss and a
- Plaintiffs' opposition to Federal Defendants' (Suppl.
and Caltech's Motions to Dismiss.
- Federal Defendants'
Reply in Further Support of Motion to
Dismiss -- December 19, 2007
Reply in Support of its Motion to Dismiss the
First Amended Complaint -- December 19, 2007
- January 9, 2008
Order Granting Caltech's Motion to Dismiss,
January 15, 2008 ruling to vacate
the dismissal order, and a January 16, 2008 Order
dismissing Caltech once again. February 15 Notice of Appeal of
the January 16 order dismissing Caltech.
- January 11, 2008
District Court's oral order (see Exhibit B on page 13)
NASA from proceeding with the background investigations.
- January 16, 2008 Order
Granting in Part and Denying
in Part Federal Defendants' Motion to Dismiss.
- February 7, 2008. Federal Defendants'
Answer to Plaintiffs' First Amended Complaint
- February 13, 2008 Federal Defendants'
Notice of Motion to Clarify District Court's preliminary injunction of January 11, 2008.
Attached Exhibits include the transcript of the January 11, 2008 hearing (page 13).
Plaintiffs' Opposition to Motion for
Clarification. March 3
(exhibits -- a
copy of the defendants' petition to re-hear the preliminary injunction appeal en banc in the 9th Circuit Court
Minutes of March 13, 2008 hearing on Defendants'
motion to Clarify. Court withdraws its January 11 oral order, allows issuance of badges to cleared employees, and
orders the Defendants to cease any further investigations of employees.
- In a February 14, 2008
Joint Status Conference Statement Plaintiffs and Federal
Defendants agree to request that this Court stay all district court proceedings until
completion of appellate proceedings with respect to the appeal of the district
court's decision on Plaintiffs' Motion for Preliminary Injunction.
- Plaintiff's Motion for Class Certification,
and supporting declaration. Federal Defendants'
to the Class Certification motion. February 27, 2008 Plaintiffs'
in Support of Motion for Class Certification.
There is no date currently scheduled for the Class certification hearing.
Last updated: October 9, 2010
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