9th Circ. Again Bars NASA Worker Background Checks
A federal appeals court has reaffirmed its earlier decision to grant a preliminary injunction to a group of scientists working under contract to NASA who claim that NASA’s mandatory background checks violate the group’s right to privacy.
The order issued Friday by the U.S. Court of Appeals for the Ninth Circuit was very similar, and almost identical, to a decision the court issued in January, which granted the employees a preliminary injunction after finding that they had raised serious legal and constitutional questions despite a lower court’s ruling.
In fact, Friday’s order reasserted the preliminary injunction, reversed the decision of the U.S. District Court for the Central District of California and remanded the case, just as January’s decision had done.
However, the Ninth Circuit also denied requests for reconsideration of its earlier ruling and rehearing en banc, stating that new rehearing motions could be brought in light of the more recent appellate decision.
Where Friday’s decision varies slightly from the Ninth Circuit’s first decision is in its treatment of the scientists’ Administrative Procedure Act claims.
Twenty-eight senior scientists and engineers at the Jet Propulsion Laboratory in California filed the suit against NASA, the Department of Commerce and the California Institute of Technology in August 2007, seeking a preliminary injunction against the implementation of new background investigation requirements.
To get a badge needed to enter the JPL, all workers have to submit to a background check. They are required to 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.
The workers were told they would lose their jobs if they didn’t comply with the process.
The scientists are not employees of the federal government, but their lawyers have said they do integral work for NASA, including work on the Mars Exploration Rovers program. None hold classified or sensitive positions.
In their complaint, the scientists claimed NASA and the Department of Commerce violated the APA “by acting without statutory authority in imposing the investigations on contract employees,” and asserted that the background checks “constitute unreasonable searches prohibited by the Fourth Amendment” and “violate their constitutional right to informational privacy,” according to appellate court records.
In October, the district judge denied the scientists’ motion for a preliminary injunction, although they had argued that they would lose their jobs if they refused to submit to the checks. The employees appealed, and the Ninth Circuit issued a preliminary injunction until it could rule more thoroughly on the case.
In January, the appellate court granted the preliminary injunction after finding that the law does not allow background investigations in the way NASA currently intended.
The Ninth Circuit also disagreed with the district court that the scientists were likely to succeed with their informational privacy claims, and said the lower court’s rejection of the APA claims was erroneous. However, the appellate court agreed that the employees were not likely to succeed with their Fourth Amendment claims.
In its decision Friday, the Ninth Circuit said it agreed with the district court that the scientists were “unlikely to succeed on the merits of their APA claim,” citing the Space Act of 1958, which “appears to grant NASA the statutory authority to require the investigations here at issue.”
In its second opinion, the Ninth Circuit delved a bit deeper into the two inquiries involved in the background checks, a Form 42 inquiry and an SF 85 questionnaire, but the result of the opinion remained the same.
“Appellants have raised serious questions as to the merits of their informational privacy claim and the balance of hardships tips sharply in their favor,” the appellate court concluded. “The district court’s denial of the preliminary injunction was based on errors of law and hence was an abuse of discretion. Accordingly, we reverse and remand with instructions to fashion preliminary injunctive relief consistent with this opinion.”
Attorneys for the scientists did not return requests for comment Tuesday. Attorneys for Caltech declined to comment.
Since it was first created in 1958, NASA, like all other federal agencies, has conducted investigations of its civil servant employees, but not of its contract employees. The background check rules are part of a 2004 Executive Order issued by President Bush compelling all federal agencies and facilities to require their workers to have identification badges.
The plaintiffs are represented in this matter by the Law Offices of Hadsell & Stormer. The defendants are represented by the U.S. Department of Justice and Kirkland & Ellis LLP.
The case is Nelson et al. v. NASA et al., case number 07-56424, in the U.S.Court of Appeals for the Ninth Circuit.
By Amanda Ernst, amanda.ernst@portfoliomedia.com
