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. On August 4, DOJ on behalf of Federal defendants petitioned the panel to re-hear the case, and suggested that the decision be re-heard en banc. The court then asked the plaintiffs-appellants to file a response.

On March 13, The District Court rescinded the preliminary injunction it issued as directed by the Appeals Court on January 11.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.

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. Plaintiffs have appealed Caltech's dismissal.

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:

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 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.
• 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. Given the recall of Court's mandate on April 28, this order may have been issued in error.
• On April 25, the court issues its mandate for the January 11 ruling (subsequently recalled).
• On April 28, the mandate issued on April 25 was recalled by the Court.
• On June 20, the Court vacates the January 11 opinion, and issues 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, the government petitions for panel rehearing and rehearing en banc.
• On August 18, the Court directed plaintiffs-appellants to file a response to Petition for rehearing.

Separately, the plaintiffs appeal District Court's January 16 decision to dismiss Caltech. Nelson et al. v. CIT el al. 08-55308.

• Appellants Response to Court's Order to show cause -- April 7.
• Caltech responds to Appellants' filing to show cause -- April 16 (text not available).
• Court orders further briefs on Caltech dismissal.
• Per Court's order, Plaintiffs/Appellants and Caltech file further briefs on Caltech dismissal -- July 7.

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.

• First Amended Complaint for Injunctive and Declaratory Relief
• Federal Defendants' Motion to Dismiss with Exhibits 1, 2, 3, 4, 5, 6, 7, and a Proposed Order.
• Caltech Motion to Dismiss, accompanied by a Notice of Motion to Dismiss and a Proposed Order.
• Plaintiffs' opposition to Federal Defendants' (Suppl. 1, 2, 3) and Caltech's Motions to Dismiss.
• Federal Defendants' Reply in Further Support of Motion to Dismiss -- December 19, 2007
• Caltech's 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) enjoining 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). February 25 Plaintiffs' Opposition to Motion for Clarification. March 3 Defendants' Reply (exhibits -- a copy of the defendants' petition to re-hear the preliminary injunction appeal en banc in the 9th Circuit Court of Appeals).
  
  Minutes of March 13 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' Opposition to the Class Certification motion. February 27 Plaintiffs' Reply in Support of Motion for Class Certification. There is no date currently scheduled for the Class certification hearing.

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.

• October 4: Emergency Appeal for Stay and Expedited Appeal Under Circuit Rule 27-3
• October 4: Federal Defendants' Opposition to Plaintiffs' Emergency Motion for an Injunction Pending Appeal
• October 4: Caltech's Opposition to Plaintiffs' Emergency Motion for an Injunction Pending Appeal Exhibits in Support of Caltech's Opposition to Emergency Motion for Stay and Expedited Appeal Under Circuit Rule 27-3
• October 5: US Court of Appeals for the Ninth Circuit Order granting temporary injunction until October 12
• October 11: US Court of Appeals for the Ninth Circuit Order to extend the injunction granted October 5 pending an appeal

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

• October 1: Official hearing transcript (user friendly PDF version of original ASCII file)
• October 3: Judge Wright's Order denying injunction request.
• Brief of Amicus Curiae from Electronic Frontier Foundation in support of plaintiffs, October 1, 2007
• Brief of Amicus Curiae from Union of Concerned Scientists in support of plaintiffs, October 1, 2007

• September 27: Plaintiff's Joint Reply in Support of Motion for Preliminary Injunction Plaintiffs' Reply to Defendant California Institute of Technology's Opposition to Motion for Preliminary Injunction Plaintiffs' Additional Declarations and Exhibits in Support of Motion for Preliminary Injunction Plaintiffs' Supplemental Request for Judicial Notice in Support of Plaintiffs' Motion for Preliminary Injunction Proof of Service re: Plaintiffs' Motion for Preliminary Injunction
• September 21: Federal Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction Attachment, Part I Attachment, Part II Attachment, Part III Attachment, Part IV Attachment, Part V
• September 21: Caltech's Opposition to Plaintiffs' motion for Preliminary Injunction Declaration of Cozette Hart Declaration of R. Alexander Pilmer Declaration of Randy J. Aden Declaration of Stephen Proia Proof of Service of Caltech's Opposition to Plaintiffs' Motion for Preliminary Injunction
• Stipulation and Order Re: Briefing Schedule for Preliminary Injunction, September 6, 2007

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.

• Complaint for Injunctive and Declaratory Relief, August 30, 2007
• Plaintiff's Memorandum of Points and Authorities in Support for Preliminary Injunction, August 30, 2007