Judge Denies NASA Employees' Civil Liberties Case

In the ongoing case of my wife (and all other NASA employees and theoretically all Federal employees) vs. Homeland Security (see earlier entries for details: Part I (overview); Part II (the Suitability Matrix); Part III (the resignation letter)), the civil liberties of Federal employees just got dealt a setback. A judge just denied the case of 28 employees of NASA's Jet Propulsion Lab to get court protection from excessively intrusive personal background investigations:

Media Advisory

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

For Immediate Release Oct 3, 2007

JPL Employees to Appeal Negative Ruling by Judge

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.

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

I should note that Judge Otis Wright is a Bush appointee, though as far as I can find his appointment met with no opposition and was supported by Senator Diane Feinstein.

Here's a link to the judge's ruling (PDF).

The Union of Concerned Scientists has filed a brief of Amicus Curiae (PDF) in support of the plaintiffs.

My wife's comment upon hearing of the ruling: "Oh, shit!"

For more information on what you can do to help protect the rights of federal employees and contractors (including grad students like my wife), go here.

And it always helps to try and get our Congressional Reps acting on this.

Where my wife works (the Goddard Institute of Space Sciences) they have yet to receive notice that they have to comply with Homeland Security Presidential Directive #12...but they have been informed that the notice will come soon. My theory is that their security has been waiting for this court case to be decided. We'll see if she gets her notice soon. She has still not decided whether she will sign or risk losing access to her place of work.

LAST MINUTE UPDATE: Just as I was about to publish this, news came in. The appeal has been successful and an injunction has been ordered. I am not taking this diary off, though, because I don't know how this will affect the overall situation in the long run, so keeping up some pressure might still be good. But, this is looking very promising!

Here is the press release that came in mere minutes ago:

PRESS RELEASE
Date: October 5, 2007

Re:
Nelson, et. al. v. National
Aeronautical and Space Agency, et. al.


NINTH CIRCUIT ISSUES INJUNCTION AGAINST NASA AND JET PROPULSION LABORATORY’S UNCONSTITUTIONAL REQUIREMENT OF INVASIVE BACKGROUND INVESTIGATIONS

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/