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Media Advisory, August 13, 2010

United States Supreme Court will hear Jet Propulsion Laboratory - Homeland Security Presidential Directive Case on October 5

Contacts:
Robert M. Nelson, Lead Plaintiff. 818-635-5536, rmnelson2@earthlink.net
Virginia Keeny and Dan Stormer, Attorneys, 626-585-9600

For Immediate Release:

The Supreme Court of the United States has scheduled October 5, 2010 to hear argument on the matter of open-ended background investigations of federal contractors arising from Homeland Security Presidential Directive #12 (NASA et al. vs Nelson et al., No. 09-530). The High Court will review an injunction issued by the Ninth Circuit Court of Appeals that blocked unconstrained investigations into the intimate details of the personal lives of employees at NASA's Jet Propulsion Laboratory in Pasadena CA. The employees do not have security clearances and do not access classified material. The Ninth Circuit Injunction, issued unanimously by a three Judge panel in January 2008, found that the investigations were not narrowly tailored to meet specific needs. The injunction was upheld by the entire set of judges of the Ninth Circuit upon en banc review in June 2009. A matter of considerable interest to the judges in this case pertained to the demand by Caltech, which manages the JPL employees under contract with NASA, that every JPL employee "voluntarily" agree to submit to an open ended background investigation, conducted by unknown investigators, in order to receive an identification badge that was compliant with HSPD#12. The government argued that there were no limits to the extent of the investigation. Furthermore, any adverse finding of the investigators could not be appealed to the courts. If an employee refused to "volunteer", Caltech would terminate the employee. In addition to briefs filed by the Justice Department and the attorneys for the JPL employees, eight amicus curiae (friend of the Court briefs) have been filed with the Supreme Court by numerous groups with various interests in the case.

Briefs Supporting the JPL Employees' Privacy Rights

Seven separate amicus curiae briefs have been submitted in support of the JPL employees. The American Astronomical Society and the Union of Concerned Scientists discussed in separate briefs the limiting effect these investigations would have on free, unfettered, open scientific research. The American Civil Liberties Union emphasized the more general impact on civil rights of all citizens. The Electronic Privacy Information Center and the Electronic Frontier Foundation discussed the nature of uncontrolled background investigations in an age of widespread government surveillance of all communications between individual citizens. The Drug Policy Alliance noted the deterring effect these investigations would have on those who have received or might need to receive drug therapy. The California Employment Lawyers Association raised questions pertaining to employment law and developed the legal argument that the investigation must be narrowly tailored to meet the specific needs of the employer, particularly for those who are already employed. Many of these groups noted that the existing privacy laws offer limited protection and that these protections are further limited in the case of those who "volunteer" to be investigated. For two of these groups, the AAS and the UCS, submitting an amicus curiae brief was unprecedented.

Brief Supporting the Background Investigations

A single amicus curiae brief in support of the government position was submitted by a consortium of four groups: the Consumer Data Industry Association, the Association of Professional Background Screeners, the Netherlands based publisher, Reed Elsevier, and the National Association of Screening Agencies. All these organizations might possibly suffer economic consequences in the event that extensive background screening be limited. Two of these groups represent organizations who conduct background investigations, one represents the consumer market research industry, and one publishes a journal on background screening. These groups argued that there were sufficient privacy protections in place and that restricting these investigations would hamper government.

Robert M. Nelson, a Senior Research Scientist at JPL and the lead plaintiff in the case said, "We are very inspired and deeply grateful for the outstanding support we have received from such a diverse constituency. This case is not about 28 JPL employees; it is about the fundamental values of a civilized society. A free society cannot permit the government to have unfettered access to every intimate detail of one's personal life."

All documents relevant to this case are posted at HSPD12JPL.org. All briefs submitted to the Supreme Court in this matter can be found at the websites of the Supreme Court or the American Bar Association.



Media Advisory, November 4, 2009

Solicitor General Appeals HSPD#12 Case to Supreme Court

Contacts:
Robert M. Nelson, Lead Plaintiff. 818-635-5536, rmnelson2@earthlink.net
Virginia Keeny and Dan Stormer, Attorneys, 626-585-9600

For Immediate Release:

On Monday, Solicitor General Elena Kagan, filed for a writ of certiorari before the United States Supreme Court, requesting a review of a Ninth Circuit Court of Appeals injunction that protected employees at NASA’s Jet Propulsion Laboratory from intrusive, open ended, background investigations under Homeland Security Presidential Directive #12 (NASA and Caltech vs. Nelson et al. No. 07-56424). If granted, the writ would permit the Supreme Court to hear arguments and rule on the legality of government investigations into the private lives of federal contractors who do non-classified work. Kagan requested that the Supreme Court overturn an en banc decision of the Ninth Circuit Court issued on June 4 of this year. The June 4 ruling had denied a motion from the Department of Justice for an en banc hearing (a hearing before a large panel of the Ninth Circuit) on the question of overturning an injunction issued last year against NASA and the California Institute of Technology by a three judge panel of the Ninth Circuit. The lower court ruling was unanimous in favor of the JPL employees.

The plaintiffs in the case have thirty days to respond to the Solicitor General’s petition.

Considerable interest in this case centers around the demand by Caltech that every JPL employee ‘voluntarily’ agree to submit to an open ended background investigation, conducted by unknown investigators, in order to receive an identification badge that was compliant with HSPD#12. The government argued that there were no limits to the extent of the investigation. If an employee refused to ‘volunteer’, Caltech would terminate the employee. Caltech manages JPL for NASA.

Robert M. Nelson, a JPL scientist and the lead plaintiff in the case said, ‘We are, of course quite disappointed. The Solicitor General has opened a Pandora’s Box, permitting the Supreme Court to possibly erase all protections that citizens might have against government snooping into the most intimate details of their private lives. The government could engage in a wholesale invasion of privacy.’

All documents relevant to this case are posted at HSPD12JPL.org

Media Advisory, June 4, 2009

Ninth Circuit Court of Appeals Rules in Favor of JPL Employees Regarding Intrusive Background Investigations

Contacts:
Robert M. Nelson, Lead Plaintiff. 818-635-5536, rmnelson2@earthlink.net
Virginia Keeny and Dan Stormer, Attorneys, 626-585-9600

For Immediate Release:

Today, the Ninth Circuit Court of Appeals ruled against the federal government and in favor of employees at NASA’s Jet Propulsion Laboratory in the matter of Homeland Security Presidential Directive #12 (Nelson et al. vs NASA). Today’s ruling denied a motion from the Department of Justice for an en banc hearing (a hearing before a large panel of the Ninth Circuit) on the question of overturning an injunction issued last year against NASA and the California Institute of Technology by a three judge panel of the Ninth Circuit. The earlier ruling was unanimous in favor of the JPL employees. Today’s vote of all the judges of the Ninth Circuit, in denying this appeal, was described as "not close".

Four judges of the Ninth Circuit minority who supported the government’s request filed written opinions. Seven judges, speaking for the majority of the judges on the full Ninth Circuit, issued a written response. All the judges of the Ninth Circuit had an option to voice their concern in this matter but these written opinions are all that ensue from this case.

The federal government has sixty days to appeal this matter to the United States Supreme Court. This decision to appeal will be made by the Attorney General, Eric Holder.

One of the matters of considerable interest to the judges in this case pertained to the demand by Caltech that every JPL employee ‘voluntarily’ agree to submit to an open ended background investigation, conducted by unknown investigators, in order to receive an identification badge that was compliant with HSPD#12. The government argued that there were no limits to the extent of the investigation. If an employee refused to ‘volunteer’, Caltech would terminate the employee. Caltech manages JPL for NASA.

All documents relevant to this case are posted at HSPD12JPL.org



Media Advisory, April 28, 2008

Court Withdraws Finding of Friday April 25.

Contact:
For information regarding JPL employees, Robert M. Nelson, Lead Plaintiff, 818-635-5536, rmnelson2@earthlink.net
For information from plaintiffs attorneys, Virginia Keeney Esq. 626-585-9600

For Immediate Release:
The Ninth Circuit Court of Appeals has recalled its order of last week denying an en banc hearing to the Government in the Homeland Security Presidential Directive #12 case involving intrusive background investigations of employees at Caltech Jet Propulsion Laboratory. It said that last week’s mandate was an error. The most recent order of the court states:
"04/28/2008 63 Filed clerk order (Deputy Clerk:SW): Recalling mandate as being issued in error."
"Mandate issued on April 25, 2008 is recalled as being issued in error."

On Friday April 25, 2008 the Ninth Circuit Court of Appeals had issued a mandate in which it declined to review its earlier decision issuing a temporary injunction preventing NASA and the California Institute of Technology from conducting the background investigations. The government had petitioned all of the judges of the Ninth Circuit Court for a review of a January 11, 2008 ruling by a three-judge panel of the Ninth Circuit that issued a temporary injunction stopping the investigations until a full trial is held in federal district court.

On Friday, the court denied the government petition for en banc review stating:
"The judgment of this Court, entered 01/11/2008, takes effect this date.
This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure."


Today’s ruling withdraws the mandate issued last Friday.

Robert M. Nelson, a Senior Research Scientist at JPL and the lead plaintiff in the JPL case said, "Our attorneys remind us that the judicial system involves a very deliberate process. We will remain patient and let the judicial activity run its course. While we are waiting, NASA and Caltech are forbidden, under the existing temporary injunction, from conducting the intrusive personal background investigations ordered under HSPD#12."

Background:
The JPL legal case evolves from a hearing last year in which employees of NASA’s JPL sought injunctive relief against their employer, Caltech, and NASA in order to prevent intrusive personal background investigations. Caltech and NASA argued that these intrusions were required under Homeland Security Presidential Directive #12, an executive order signed by President George W. Bush. Most JPL employees (including all of the plaintiffs in the case) do no classified work.

Federal District Judge Otis Wright III dismissed the case on October 3, 2007. The employees appealed to the Ninth Circuit Court of Appeals, and an emergency temporary injunction was granted on October, 5 2007, just hours before JPL was to begin advertising for replacements for those employees who were deemed non-compliant.

A second panel of the Ninth Circuit Court heard arguments on this case on December 5. On January 11, 2008, the Ninth Circuit Court of Appeals found that "The Appellants have demonstrated serious questions as to certain of their claims on which they are likely to succeed on the merits, and the balance of hardships tips sharply in their favor. We therefore conclude that the district court abused its discretion in denying Appellants' motion for a preliminary injunction, and we reverse and remand." In addition, the Ninth Circuit Court reinstated Caltech as a defendant in the case stating, "The court found Caltech did do more [than merely follow government orders]—it established, on its own initiative, a policy that JPL employees who failed to obtain federal identification badges would not simply be denied access to JPL, they would be terminated entirely from Caltech’s employment."

All court documents relevant to the case can be found at HSPD12JPL.org.

Media Advisory, April 27, 2008

Court Denies Government Petition for Injunction Review

Contact:
For information regarding JPL employees, Robert M. Nelson, Lead Plaintiff, 818-635-5536, rmnelson2@earthlink.net
For information from plaintiffs attorneys, Virginia Keeney Esq. 626-585-9600

For Immediate Release:
On Friday April 25, 2008 the Ninth Circuit Court of Appeals declined to review its earlier decision issuing a temporary injunction preventing NASA and the California Institute of Technology from conducting intrusive personal background investigations of employees at the Jet Propulsion Laboratory in Pasadena. The government had petitioned all of the judges of the Ninth Circuit Court for a review of a January 11, 2008 ruling by a three-judge panel of the Ninth Circuit that issued a temporary injunction stopping the investigations until a full trial is held in federal district court.

The court denied the government petition for en banc review stating:
"The judgment of this Court, entered 01/11/2008, takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure."

The ruling means that the matter is sent back to federal district court for a trail on the full merits of the case.

Robert M. Nelson, a Senior Research Scientist at JPL and the lead plaintiff in the JPL case said, "We are pleased that the Ninth Circuit Court of Appeals has reaffirmed its earlier decision. Intrusive personal background investigations of loyal federal employees constitute a violation of basic civil liberties that our constitution guarantees to all."

Background:
The JPL legal case evolves from a hearing last year in which employees of NASA’s JPL sought injunctive relief against their employer, Caltech, and NASA in order to prevent intrusive personal background investigations. Caltech and NASA argued that these intrusions were required under Homeland Security Presidential Directive #12, an executive order signed by President George W. Bush. Most JPL employees (including all of the plaintiffs in the case) do no classified work.

Federal District Judge Otis Wright III dismissed the case on October 3, 2007. The employees appealed to the Ninth Circuit Court of Appeals, and an emergency temporary injunction was granted on October, 5 2007, just hours before JPL was to begin advertising for replacements for those employees who were deemed non-compliant.

A second panel of the Ninth Circuit Court heard arguments on this case on December 5. On January 11, 2008, the Ninth Circuit Court of Appeals found that "The Appellants have demonstrated serious questions as to certain of their claims on which they are likely to succeed on the merits, and the balance of hardships tips sharply in their favor. We therefore conclude that the district court abused its discretion in denying Appellants' motion for a preliminary injunction, and we reverse and remand." In addition, the Ninth Circuit Court reinstated Caltech as a defendant in the case stating, "The court found Caltech did do more [than merely follow government orders]—it established, on its own initiative, a policy that JPL employees who failed to obtain federal identification badges would not simply be denied access to JPL, they would be terminated entirely from Caltech’s employment."

All court documents relevant to the case can be found at HSPD12JPL.org.

Media Advisory, April 2, 2008

U.S. Congress to Hold Hearings on Federal Employee Background Checks

Contact:

For information regarding JPL legal case, Robert M. Nelson, Lead Plaintiff, 818-635-5536, rmnelson2@earthlink.net or Virginia Keeny Esq. 626-585-9600.

For direct information from the U.S. Congress:
Committee on Oversight and Government Reform
U.S. House of Representatives
2157 Rayburn House Office Building
Washington, D.C. 20515
(202) 225-5051
For Immediate Release:
NOTICE OF CONGRESSIONAL COMMITTEE HEARINGS ON HSPD#12
When: Wednesday April 9, 2008 at 2 P.M.
Where: 2247 Rayburn Office Building, Washington DC

A House Committee on Oversight and Government Reform subcommittee chaired by Congressman Edolphus Towns of New York will hold hearings on Wednesday April 9, 2008, on the status of Homeland Security Presidential Directive 12 and its impact on federal employees and contractors. According to the subcommittee website, http://governmentmanagement.oversight.house.gov/story.asp?ID=1833,

"The hearing will release a new Government Accountability Office (GAO) report finding that the program is incurring high costs but providing little benefit to date, and will explore the impact that implementation of the program may have on the current security clearance issuance backlog."

As currently implemented, HSPD#12 requires federal employees and contractors to submit to intrusive and detailed background investigations into all matters of their personal lives. If an employee in good standing declines to permit these investigations he or she will be denied access to federal facilities and hence lose his or her job. Federal employees and contractors have voiced concerns about HSPD#12 to the courts and to congress. Last year, four senior-level scientists at NASA's Jet Propulsion Laboratory (managed by the California Institute of Technology in Pasadena) wrote to Congressmen Rush Holt and Vern Ehlers requesting congressional review of HSPD12. JPL employees also took the matter to court.

Robert M. Nelson, a Senior Research Scientist at JPL and the lead plaintiff in the JPL case said, "These congressional hearings are an important development in this case insofar as they point out the high cost and the low efficacy of the HSPD12 program. Of further importance is that the background checks being conducted under HSPD12 fly in the face of traditional American values as specified in the U.S. Constitution. Congress has taken a first step in restoring balance between our constitutional rights and national security by releasing this report. The bottom line, however, is that these investigations are morally wrong."

Background:
The JPL legal case evolves from a hearing last year in which employees of NASA's JPL sought injunctive relief against their employer, Caltech, and NASA in order to prevent intrusive personal background investigations. Caltech and NASA argued that these intrusions were required under Homeland Security Presidential Directive #12, an executive order signed by President George W. Bush. Most JPL employees (including all of the plaintiffs in the case) do no classified work.

Federal District Judge Otis Wright III dismissed the case on October 3, 2007. The employees appealed to the Ninth Circuit Court of Appeals, and an emergency temporary injunction was granted on October, 5 2007, just hours before JPL was to begin advertising for replacements for those employees who were deemed non-compliant.

A second panel of the Ninth Circuit Court heard arguments on this case on December 5. On January 11, 2008, the Ninth Circuit Court of Appeals found that "The Appellants have demonstrated serious questions as to certain of their claims on which they are likely to succeed on the merits, and the balance of hardships tips sharply in their favor. We therefore conclude that the district court abused its discretion in denying Appellants’ motion for a preliminary injunction, and we reverse and remand." In addition, the Ninth Circuit Court reinstated Caltech as a defendant in the case stating, "The court found Caltech did do more [than merely follow government orders]—it established, on its own initiative, a policy that JPL employees who failed to obtain federal identification badges would not simply be denied access to JPL, they would be terminated entirely from Caltech’s employment."

All court documents relevant to the case can be found at HSPD12JPL.org

Media Advisory, January 16, 2008

Federal Court Judge Once Again Dismisses Caltech as Defendant in JPL HSPD12 Case



Contact: Robert M. Nelson, Lead Plaintiff. 818-635-5536, rmnelson2@earthlink.net.
For Immediate Release: January 16 2008

Late today, Federal District Court Judge Otis Wright II reversed his ruling of yesterday and once again dismissed the California Institute of Technology as a defendant in the case of 28 Jet Propulsion Laboratory employees who had challenged intrusive background investigations ordered under Homeland Security Presidential Directive #12. Yesterday, Wright recinded his ruling of last week in which he had dismissed Caltech as a defendant in the case.

Wright's most recent ruling places him in conflict with a ruling of the Ninth Circuit Court of Appeals issued last Friday, which directed him to conduct a trial in the case with Caltech and NASA both as defendants. Caltech manages JPL for NASA.

Caltech has claimed it was only doing what NASA said. However, the Ninth Circuit Judges on Friday said, "...Caltech did do more—it established, on its own initiative, a policy that JPL employees who failed to obtain federal identification badges would not simply be denied access to JPL, they would be terminated entirely from Caltech's employment."

Robert M. Nelson, a Senior Research Scientist at JPL and the lead plaintiff in the case said, "We had hoped we could finally proceed with a trial on the merits of our case. Instead, our attorneys must first resolve Judge Wright's ruling and ruling of the appeals court which which had arready directed Wright to include Caltech."

An injunction remains in effect against NASA preventing the Space Agency from conducting the background checks until Judge Wright conducts a trial.

Background: The case evolves from a hearing last year in which employees of NASA’s JPL sought injunctive relief against their employer, Caltech, and NASA in order to prevent intrusive personal background investigations. Caltech and NASA argued that these intrusions were required under Homeland Security Presidential Directive #12, an executive order signed by President George W. Bush. The JPL employees do no classified work.

Judge Otis Wright dismissed the case on October 3, 2007. The employees appealed to the Ninth Circuit Court of Appeals and an emergency temporary injunction was granted on October, 5 2007, just hours before JPL was to begin advertising for replacements for those employees who were deemed non-compliant. A second panel of the Ninth Circuit Court heard arguments on this case on Dec 5, 2007, and issued a written opinion last Friday. All court documents relevant to the case can be found at HSPD12JPL.org

Media Advisory, January 15, 2008

Federal court Judge Reinstates Caltech as Defendant in JPL HSPD12 Case



Contact: Robert M. Nelson, Lead Plaintiff. 818-635-5536, rmnelson2@earthlink.net.
For Immediate Release: January 15 2008.

Today, Federal District Court Judge Otis Wright II re-instated the California Institute of Technology as a defendant in the case of 28 Jet Propulsion Laboratory employees who had challenged intrusive background investigations ordered under Homeland Security Presidential Directive #12. Last week Wright had dismissed Caltech as a defendant in the case.

Wright's order of today rescinds his order of last Wednesday. Today’s ruling is consistent with a ruling of the Ninth Circuit Court of Appeals issued last Friday, after Wright had dismissed Caltech as a defendant in the case. Caltech manages JPL for NASA.

Caltech had claimed it was only doing what NASA said. However the Ninth Circuit Judges on Friday said, "...Caltech did do more—it established, on its own initiative, a policy that JPL employees who failed to obtain federal identification badges would not simply be denied access to JPL, they would be terminated entirely from Caltech’s employment."

Robert M. Nelson, a Senior Research Scientist at JPL and the lead plaintiff in the case said, "We now look ahead to a full trial on the merits of our case."

An injunction remains in effect against Caltech and NASA preventing them from conducting the background checks until Judge Wright conducts a trial.

Background: The case evolves from a hearing last year in which employees of NASA's JPL sought injunctive relief against their employer, Caltech, and NASA in order to prevent intrusive personal background investigations. Caltech and NASA argued that these intrusions were required under Homeland Security Presidential Directive #12, an executive order signed by President George W. Bush. The JPL employees do no classified work.

Judge Otis Wright dismissed the case on October 3, 2007. The employees appealed to the Ninth Circuit Court of Appeals and an emergency temporary injunction was granted on October, 5 2007, just hours before JPL was to begin advertising for replacements for those employees who were deemed non-compliant. A second panel of the Ninth Circuit Court heard arguments on this case on Dec 5, 2007, and issued a written opinion last Friday. All court documents relevant to the case can be found at HSPD12JPL.org

Media Advisory, November 30, 2007

Appeals Court Hearing on Injunction Restricting Background Investigations of JPL Employees


PDF version
JPL Employees vs. NASA, Department of Commerce, and Caltech; Homeland Security Presidential Directive 12
Contact: Robert M. Nelson, Lead Plaintiff. 818-635-5536, rmnelson2@earthlink.net

When: Wednesday, Dec 5, 2007 9:30 AM.
Where: Courtroom #1 United States Court of Appeals Building,
125 S Grand Ave
Pasadena, CA 91105
(626) 229-7250

Attorneys and Plaintiffs will be available for media interviews following the hearing.

A three-judge panel of the Ninth Circuit Court of Appeals will hear arguments Dec. 5, 2007, on an injunction pending appeal in the case of 28 Caltech employees at NASA's Jet Propulsion Laboratory who filed suit to prevent unreasonable personal background checks. The JPL employees -- all of whom work on non-classified space exploration projects -- sued NASA, the Department of Commerce, and their employer, Caltech, to prevent intrusive, open-ended background investigations imposed by NASA Administrator Michael Griffin in support of Homeland Security Presidential Directive 12. The background investigations were associated with issuing new identification cards to employees in order for them to access the JPL facility. HSPD12 mandates new identification documents but does not mention background investigations. None of the plaintiffs have security clearances.

On October 5 the appeals court issued an emergency temporary injunction preventing Caltech from further implementation of the HSPD12 process at JPL. The injunction was extended on October 11, in a ruling where the court recognized the right to informational privacy and found "...serious privacy concerns..." in this matter. The court said, "Moreover, the need for the information to be collected is questionable in general, given the absence of any apparent relationship between its collection and the production of reliable identification cards for these employees."

In papers filed with the court for argument on December 5, attorneys for the 28 employees described the investigation procedures of Caltech and NASA as being "...overly broad, dangerously vague, and ill-designed." The plaintiff's attorneys argued furthermore that the process, "...violated the Fourth Amendment and the constitutional right to privacy as well as raising serious First and Fifth Amendment concerns."

One issue raised in the case is the ability of federal facilities to recruit top-level scientists and engineers in the harsh investigatory climate of HSPD12. The plaintiffs argue, "...NASA will be deprived of the talents of other scientists and engineers who will be deterred from applying to work at JPL because of the newly-required background investigation and waiver of privacy rights, both of which are antithetical to the type of autonomy and academic freedom needed to maintain JPL's status as the preeminent research institution for space exploration." They continued, "JPL is currently experiencing a shortage of experience in Mars science and has faced difficulties recruiting senior talented scientists in this area, a problem which will be compounded by any change which deters new hires."

In opposition to this argument, JPL's Human Resources Director, Cozette Hart, told the court on October 1 that JPL has 5000 applicants each year that she considered to be minimally qualified to fill vacancies in the staff. She added, "Caltech is capable of finding suitable replacements for employees that leave JPL." However, the lead plaintiff in the case, Robert M. Nelson, notes that a few weeks later Hart contradicted her earlier assertion in an interview with the JPL in-house newspaper. "(W)e are in a talent war," Hart said. "We are going to have increased difficulty in finding and retaining talent to replace our older workers as they retire."

Nelson, a Senior Research Scientist with 28 years of service at JPL, noted that Hart's remarks are indicative of a Caltech management that is willing to "...change its story to suit whatever circumstance is most convenient." He added, "NASA has had a long-standing reputation of stating the truth even in the few instances when the truth is not complimentary to NASA." He added, "Hart's contradictory remarks are an affront to every employee who works at JPL. Her comments are a harbinger of the mediocrity that HSPD#12 threatens to bring to American science and engineering." Other issues raised by the lawsuit include the threat to intellectual freedom inherent in excessive background investigations, the unfettered nature of the investigations, and the requirement to waive privacy rights as a condition of employment.

The plaintiffs have received broad support for their legal actions, including amicus curiae briefs filed by the Electronic Frontier Foundation and the Union of Concerned Scientists.

Comments from plaintiffs - 818-635-5536.
Comments from Plaintiffs Attorneys- 626-585-9600

Further information and all court documents are at the website hspd12jpl.org

Media Advisory, October 5, 2007

Ninth Circuit Issues Injunction Against NASA and Jet Propulsion Laboratory's Unconstitutional Requirement of Invasive Background Investigations


PDF version
Contact: Dan Stormer, Virginia Keeny
Hadsell and Stormer (626) 585-9604

Today the Ninth Circuit Court of Appeals entered an emergency injunction against the National Aeronautics and Space Administration and the Jet Propulsion Laboratory. The Court ruled that NASA could not require Jet Propulsion Laboratory scientists and engineers holding non-sensitive positions to sign waivers of their privacy rights. If the Court had not issued this injunction, thousands of scientists would have had to choose between waiving their privacy rights and keeping their jobs. The plaintiffs filed suit in United States District Court for the Central District of California against NASA, the Department of Commerce and the California Institute of Technology (Caltech) on behalf of a class of JPL employees who are being required to waive their privacy rights and submit to an unconstitutional intrusive background investigation in order to retain their jobs with JPL. The plaintiffs include highly placed engineers and research scientists at JPL who have been involved in critical roles in NASA's most successful recent programs, including leading engineers and scientists on the Mars Exploration Rovers program. All are long term employees of Caltech who have never had to submit to the incredibly intrusive check that the Bush Administration desires. None of the plaintiffs have classified or sensitive positions. Plaintiffs challenge Bush's decision to require that all JPL employees submit to a "National Agency Check with Inquiries" and sign a broad written waiver, permitting investigators to obtain records from their past employment files, and to question their friends and associates about their emotional health, financial integrity, and general conduct.

NASA has implemented this intrusive program as part of a 2004 Executive Order (Homeland Security Presidential Directive 12 (HSPD-12)) issued by President Bush, which required that all federal agencies and facilities institute an identification badge. The plaintiffs are not employed by the Federal Government, but still have been informed that if they do not comply with the background investigation process by October 5, 2007, they will be deemed to have voluntarily terminated their employment with Caltech as of October 27, 2007.

"We are ecstatic," said Robert Nelson, one of the plaintiffs in the lawsuit.

"We are grateful for the court's action. This is another egregious example of the Bush Administration's assault on the Constitution. Our clients are exemplary employees who have spent their work lives bettering this Country. This shows the court will not stand by and let this attack on the right to privacy take place," said Dan Stormer of Hadsell & Stormer. "This unlawful requirement allows unknown government officials to ask all manner of questions about people's personal lives, including their personal lives and mental state. It is exceptionally broad and completely unnecessary. We applaud the court's action and are grateful for the quick action it took" said Virginia Keeny, a partner at Hadsell & Stormer.

Relevant background documents are posted at the following website: http://www.hspd12jpl.org/

Media Advisory, October 3, 2007

JPL Employees to Appeal Negative Ruling by Judge


Contact: Robert M. Nelson, Lead Plaintiff. 818-635-5536, rmnelson2@earthlink.net

For Immediate Release Oct 3, 2007

Employees at Caltech's Jet Propulsion Laboratory will file an emergency motion on Thursday to appeal a federal district court's decision that denies them the court's protection from excessively intrusive personal background investigations ordered by NASA for all JPL employees.

During the hearing in his Los Angeles courtroom on Monday, Judge Otis Wright said he was inclined to issue a limited temporary injunction before October 5 in the case of the 28 JPL employees who filed suit against Caltech and NASA over the detailed personal investigations associated with issuing new identification badges for access to the JPL facility. None of the 28 employees do any classified work.

Earlier Wednesday, however, Judge Wright changed his mind. Rather than issuing the temporary injunction he described in court Monday, he denied the employees' plea for court protection. A few hours later, attorneys for the JPL employees said they would file an emergency appeal of Wright's decision tomorrow to the Ninth Circuit Court of Appeals in San Francisco.

Caltech has arbitrarily imposed an October 5 deadline for employees to complete a detailed personal questionnaire and to "voluntarily" sign a waiver permitting investigators to conduct open-ended probes into intimate personal background details, including sexual relationships. Employees who do not comply by will be locked out on October 27.

Hundreds of JPL employees have taken issue with the background checks. In addition to the 28 plaintiffs, more than 200 employees have signed an on-line statement stating that they completed the questionnaire under duress in order to keep their jobs. Many others are yet to comply with NASA's requirements. As pointed out by Caltech attorney Mark Holscher in court Monday, only 4100 out of 7500 JPL employees and contractors have initiated the required paperwork.

Robert M. Nelson, lead plaintiff in the case said, "We are obviously disappointed at Judge Wright's refusal to protect our privacy rights; however, our hopes have been raised by the appeal efforts of our attorneys." The JPL employees are represented by Dan Stormer, Virginia Keeny and Sanjukta Paul of the firm of Hadsell and Stormer, a prominent civil rights law firm in Pasadena CA.

For comments from plaintiffs - 818-635-5536.

Attorneys available for comment after 2 PM PDT , Oct. 4, 2007 at 626-585-9600

Further information and all court documents are at the website hspd12jpl.org.

Media Advisory, October 1, 2007

Federal Judge Indicates He May Issue Temporary Limited Injunction


Contact: Robert M. Nelson, Lead Plaintiff. 818-635-5536, rmnelson2@earthlink.net

Judge Otis Wright suggested he may issue some form of a limited temporary injunction in the next few days in the case of 28 employees of Caltech's Jet Propulsion Laboratory who filed suit against Caltech and NASA for over-intrusive background checks that are being conducted in association with issuing new identification badges for access to JPL.

Judge Wright set a hearing on the question of a permanent injunction for October 19, at 3:30 PM in Courtroom 11 of the United States Courthouse in Los Angeles.

The judge said he had particular concerns about a question regarding drug use that employees had to answer on United States Office of Personnel Management Form SF85.

In addition to the 28 plaintiffs, hundreds of JPL employees have taken issue with the background checks. Caltech attorney Mark Holscher conceded in court that only 4100 of JPL's 7500 employees and contractors have begun to fill out the forms.

The deadline for completing the process for all employees is October 5. A small number of JPL employees who have security clearances do not have to complete the SF85 form. This form is intended only for employees who are not doing classified work

Robert M. Nelson, lead plaintiff in the case against NASA said, "I am encouraged to learn that some of the concerns that my colleagues and I have raised over the last two years about this intrusive investigation process are beginning to receive judicial review. We are a nation that was founded on a principle of checks and balances between the branches of government. The judicial branch has begun its job."

Further information and all court documents are at the website hspd12jpl.org.

Media Advisory, September 19, 2007

JPL Employees vs Caltech, NASA and Department of Commerce Homeland Security Presidential Directive 12

PDF version
Contact: Robert M. Nelson, Lead Plaintiff. 818-635-5536, rmnelson2@earthlink.net

UPDATE:

Three new developments have occurred regarding the legal action brought by 28 JPL employees on 30 August 2007 in which they asked a federal court for injunctive relief protection from the implementation of Homeland Security Presidential Directive #12. HSPD#12 is one of a series of Executive Orders signed by President Bush in 2004. Implementation plans call for intrusive background checks and fingerprinting of all federal employees and contractors. Employees must sign a waiver 'voluntarily' consenting to these background investigations. If they refuse they will lose their jobs.

  1. Change in court dates. The dates for the injunction hearing have been changed. The argument for preliminary injunctive relief is now scheduled for Oct. 1, 2007 at 4 p.m. in Courtroom 11 of the Federal Court in Los Angeles. Hon. Otis D. Wright II is the presiding judge. All the court documents are available at http://hspd12jpl.org/
  2. Women Scientist's and Engineers ask for Senate Investigation. Eight women scientists at JPL have written a letter of concern to all female members of the United States Senate. Their concern is that NASA's insistence that employees 'volunteer' for these background checks (or face termination) under HSPD12 is similar to sexual workplace harassment situations of years past.
    "We as women clearly understand a well-known variant of this threat, sexual harassment, which hampered our advancement in the workplace for decades. Those who stood on their principles and failed to acquiesce lost their jobs. Fortunately, strong judicial and legislative sanctions largely relegated this practice to the unwelcome past. This raises the obvious question: would anyone in government tolerate a policy that asks us to waive our protections against sexual harassment in exchange for being retained or promoted? We think you would be as concerned as we are regarding a policy that is an abuse-of employment practice."
    See letter in the reference documents.
    Contacts:
    Dr. Linda J. Spilker 818-636-0819
    Dr. Amanda R. Hendrix 310-922-3414
  3. Online Statement of Concern from Other JPL Employees. More than 100 JPL employees have signed an on line statement saying that while they already have or might ultimately sign the waivers consenting to be investigated they are doing this only under economic duress to maintain their livelihoods.
    "We are concerned about its stifling effect on attracting the best talent to JPL. We see no reasonable grounds for the government's unprecedented and unfettered intrusion into the private affairs of JPL employees and contractors."

    See full text at http://hspd12jpl.org/statement.html.
    Contact:
    Dr. David Diner at 626-355-4377


Press Release, August 30, 2007

JPL Employees File Suit to End Background Investigations

Twenty-Eight Senior Scientists and Engineers at JPL File Suit Against United States Government and California Institute of Technology (Caltech), Challenging NASA's Unconstitutional Requirement of Invasive Background Investigations

Press Conference: Thursday, August 30, 2007, 10:00 a.m. at Hadsell & Stormer, Inc., 128 N. Fair Oaks Ave, Pasadena, CA 91103

Re: Nelson, et al. v. National Aeronautics and Space Administration, et al.

Pasadena, CA — August 30, 2007 — Twenty-eight senior scientists and engineers at the Jet Propulsion Laboratory (JPL is a part of Caltech) have filed suit today in United States District Court for the Central District of California against NASA, the Department of Commerce and the California Institute of Technology (Caltech) on behalf of a class of JPL employees who are being required to waive their privacy rights and submit to an unconstitutional intrusive background investigation in order to retain their jobs with JPL. The plaintiffs include highly placed engineers and research scientists at JPL who have been involved in critical roles in NASA's most successful recent programs, including leading engineers and scientists on the Mars Exploration Rovers program. All are long term employees of Caltech who have never had to submit to the incredibly intrusive check that the Bush Administration desires. None of the plaintiffs have classified or sensitive positions. Plaintiffs challenge Bush's decision to require that all JPL employees submit to a "National Agency Check with Inquiries" and sign a broad written waiver, permitting investigators to obtain records from their past employment files, and to question their friends and associates about their emotional health, financial integrity, and general conduct, including whether they've ever had sex and, if so, what type.

NASA has implemented this intrusive program as part of a 2004 Executive Order (Homeland Security Presidential Directive 12 (HSPD-12)) issued by President Bush, which requires that all federal agencies and facilities institute an identification badge. The plaintiffs are not employed by the Federal Government, but still have been informed that if they do not comply with the background investigation process by September 28, 2007, they will be deemed to have voluntarily terminated their employment with Caltech as of October 27, 2007.

In their lawsuit, plaintiffs seek a preliminary injunction against implementation of these new background investigation requirements. Plaintiffs will file the formal papers in support of the preliminary injunction on August 30, 2007.

"This is another egregious example of the Bush Administration's assault on the Constitution. Our clients are exemplary employees who have spent their work lives bettering this Country. This attack on their right to privacy will not be tolerated," said Dan Stormer of Hadsell & Stormer. "This unlawful requirement allows unknown government officials to ask all manner of questions about people's personal lives, including their sex lives and emotional state. It is exceptionally broad and completely unnecessary," said Virginia Keeny, a partner at Hadsell & Stormer.

Several senior JPL scientists and engineers will be present at the press conference and available to the press at that time.

These JPL participants will be at the Press Conference at the offices of Hadsell and Stormer on August 30, 2007, commencing at 10:00 a.m.:

  1. Dennis Byrnes is JPL Chief Engineer for Flight Dynamics. He is a recipient of the NASA Exceptional Engineering Achievement Award and is an internationally recognized expert on Astrodynamics. He has worked on NASA projects since 1968 (Apollo).

    Statement:
    "This is something straight out of the 1950's McCarthy era. The 'suitability criteria' are so broad that investigators could use them to get rid of anyone they want. If the money wasted to investigate current trusted government employees and contractors were instead spent to make the government facilities more secure, we would all be much safer."

  2. Robert M. Nelson is a Senior Research Scientist at JPL and is an elected member of the JPL Senior Research Scientists Council. He has been a Principal Investigator on NASA research programs for three decades. He was selected by NASA to be a member of the Cassini Saturn Orbiter Visual and Infrared Mapping Spectrometer Team and as the Project Scientist of NASA's Deep Space 1 Mission. He has authored numerous academic papers on topics involving the spectrophotometric properties of planets, asteroids and planetary satellites and has served on the editorial board of the Encyclopedia of Planetary Sciences. He has served as Chairman of the largest division of the American Astronomical Society-it's Division for Planetary Sciences and has received numerous NASA related citations and awards including a NASA Exceptional Service Medal.

    Statement:
    "If all the citizens of Manhattan had been fingerprinted and subjected to invasive background investigations, the horrible events of 9/11 would still have happened. HSPD- 12 does not address the real danger, it is merely a palliative that creates the sensation of security in the face of a great danger. It has no more value than taking aspirin to cure lung cancer."

  3. Varoujan Gorjian is astronomer who has been at JPL for 9 years doing research on black holes and the star formation history of the universe as well as doing public outreach to high schools.

    Statement:
    "How many talented scientists and engineers will NASA and JPL lose because reputable scientists will not submit to intrusive government searches of their personal lives. Compromising the rights of people who study planets, stars, and galaxies does not increase our security here on earth."

  4. Zareh Gorjian is a Member of Technical Staff in the Modeling, Simulation and Visualization Group. He has been producing animations for public outreach for a variety of NASA missions, such as Galileo, Mars Pathfinder, Cassini, the Mars Exploration Rovers and the Mars Reconnaissance Orbiter. He has never been involved in any secret or classified work. He has been employed at JPL for the past 17 years.

    Statement:
    "By signing this supposed 'voluntary waiver' I'm giving government investigators or whomever they designate the right to look into all areas of my private life. I was at JPL during the cold war when we were fighting the Soviet Union which had the power not only to end all life in the U.S. but the entire planet! We were able to defeat them without resorting to such intrusive tactics."

  5. Susan Foster has been employed by the Jet Propulsion Laboratory since she was 18 years old. For ten years, she served in clerical and secretarial positions in a technical division. Since 1978, she has been a technical editor and technical writer, responsible for preparing and producing administrative, technical, and scientific documents for internal, NASAwide, and public distribution. During her nearly 40 years at JPL she received many commendations for her accomplishments and contributions, including the NASA Exceptional Service Medal and the prestigious Spaceflight Awareness Award.

    Statement:
    "Instead of enhancing homeland security, the government is using 9/11 as justification to control American citizens and invade their privacy. I cannot in good conscience participate in this assault on our civil liberties and the reckless use of precious homeland security dollars. My country is on a treacherous and slippery slope, and I am willing to do whatever it takes to make a strong and lawful stand against this assault on the Constitution of the United States."

Relevant background documents are available below.

Contact: Dan Stormer
Virginia Keeny
Hadsell and Stormer (626) 585-9600
vkeeny@hadsellstormer.com

Other Press Information

  • HSPD-12 at JPL -- Overview

    An overview of the rebadging process at JPL.

  • Reference Documents

    A collection of official government documents and correspondence between various government offices and congressional representatives.

  • In-Depth Information

    In-depth explanations of some of the complaints against the JPL rebading process.

no to HSPD-12

Last updated: November 4, 2009
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