Appeals court stops some NASA HSPD-12 background checks

As project scientist for the Mars Exploration Rover Mission, William Banerdt is one of the top scientists at the California Institute of Technology’s Jet Propulsion Laboratory, where he has worked for 24 years. He’s also a plaintiff with 27 of his JPL colleagues in a lawsuit against NASA, which has underwritten the lab since 1959 through a contract with Caltech.

In their lawsuit, Banerdt and the other JPL scientists say background Investigations required under Homeland Security Presidential Directive 12 violate their constitutional right to privacy. The U.S. Ninth Circuit Court of Appeals in Los Angeles granted an injunction Oct. 11 for the plaintiffs, exempting them — until the court makes a further determination — from providing some information needed to complete the background checks under HSPD-12. A week earlier, a lower court rejected the scientists’ request for an injunction.

Arguments before the appeals court are scheduled to begin Dec. 3, said Dan Stormer, an attorney for the plaintiffs and a partner at Hadsell and Stormer in Pasadena, Calif. Stormer said he believes the judges will issue a decision within several months once the court hears the arguments.

“There are important constitutional issues, and it involves the government so they’ll get it out faster,” he said.

The 28 scientists filed a class-action suit Aug. 30 against NASA, Caltech and the Commerce Department, which has a role in setting federal identification standards. The complaint states that the scientists are required to submit to an intrusive background investigation as a condition of their employment. Such an inquiry might include questions about medical and mental health issues and financial information, violating their right to privacy, they say.

In granting the injunction, the appeals court agreed that the case raises serious privacy concerns.

“This court has recognized the right to informational privacy,” three circuit court judges said. “To justify actions infringing upon the right, the government must show that its use of the information would advance a legitimate state interest and that its actions are narrowly tailored to meet that interest.”

David Mould, a NASA spokesman, said the HSPD-12 background check requirement “clearly applies to the people at JPL, the vast majority of whom have already complied with the process. A group of people [at JPL] feel that for whatever reason these rules should not apply to them, and they have filed this action.”

According to the plaintiffs’ brief with the appeals court, none of the scientists have security clearances, and they don’t work with classified material. The document states that many of them agreed to work for NASA with that understanding.

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