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The Lawsuit
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The Lawsuit
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 U.S.C. 552a.

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 rescinded the preliminary 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 Act claims.

To make sure that any permanent injunction applies to all JPLers, plaintiffs asked the District Court to certify a class consisting of 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 the Timeline page.

Read more on the implications of the suit and the proceedings so far on the Press Releases page.

Recent Decisions:

March 8, 2010. The U.S. Supreme Court grants the government's petition for a writ of certiorari.

June 4, 2009. The appeals court denied the petitions by the government defendants to re-hear the case.

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 its 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., 09-530.

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.

  • 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 a response to Petition for rehearing.
  • new!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 (1, 2, 3).
  • 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.
Separately, the plaintiffs appeal District Court's January 16, 2008 decision to dismiss Caltech. Nelson et al. v. CIT el al. 08-55308.
  • 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 Caltech dismissal.
  • On July 7, 2008, per Court's order, Plaintiffs/Appellants 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. new! Court Mandate finilizing this decision issued on October 8, 2008.
Filings in the District Court.
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 employees 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 Appeals court ruling, 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.

Last updated: October 9, 2010
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