Monday, January 14, 2008
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Ninth Circuit Bars Intrusive Background Checks for JPL Workers
By KENNETH OFGANG, Staff Writer
A Ninth U.S. Circuit Court of Appeals panel said Friday that scientists and other workers at the Jet Propulsion Laboratory are entitled to a temporary injunction against background checks they have challenged as overly intrusive.
In an opinion by Judge Kim Wardlaw, the panel said last year’s ruling by U.S. District Judge Otis Wright denying temporary relief was based on an erroneous legal premise and thus an abuse of discretion. The case was sent back to Wright with directions to fashion an appropriate injunction.
The program has been on hold since a Ninth Circuit motions panel held in October that the employees had a strong enough case to justify enjoining the program pending a ruling on their appeal of Wright’s order.
Scientists Sue
The plaintiffs are scientists, engineers, and administrative workers at JPL, which is operated jointly by the California Institute of Technology and the National Aeronautics and Space Administration. Like the vast majority of JPL employees, they do not have or need security clearances, and have been identified by the government as holding “non-sensitive” positions.
The program they object to was developed by the Department of Commerce, NASA’s parent, pursuant to a presidential directive known as HSPD-12.
The plaintiffs object to requirements that they provide detailed background information, including disclosures of mental health history; past use of, and counseling for, controlled substances; past arrests—regardless of whether they resulted in the filing of charges—and the names of three references, each of whom will be asked by the government to complete a “Form 42” questionnaire regarding what they know of the JPL employee.
The plaintiffs also object to the fact that one of the forms the government demands they sign—known as Standard Form 85—contains an express privacy waiver, which they allege could be used to obtain personnel files from past employers and other types of data whose disclosure goes way beyond any legitimate security interest.
Wright had found that some of their objections were not ripe for review, that they did not appear likely to prevail, and that the government’s national security justifications for the program tipped the balance of hardships in its favor.
But Wardlaw, writing for the Ninth Circuit, said the district judge erred in ruling that it was premature for the plaintiffs to challenge the potential investigations flowing from the Form 85 release. Armed with the release, and the names of the employees’ references, the government will be able to use Form 42 to seek “highly personal information,” the disclosure of which could cause “concrete and immediate” harm, the judge wrote.
Violates APA
Wardlaw went on to say that the program violates the Administrative Procedures Act because there is no statute or executive order authorizing NASA to conduct broad background checks of “low-risk,” contract employees. The forms, she said, ask for far more information than is necessary to “securely and reliably identify the employees,” which is the purpose of HSPD-12.
Nor, she said, could the program be justified by the Space Act’s grant of authority to NASA to “establish such security requirements, restrictions, and safeguards as [the NASA administrator] deems necessary in the interests of national security.”
The “interests of national security” language, the judge wrote, means that Congress intended to limit the authority of the administrator to the establishment of special requirements for those who, unlike the plaintiffs, serve in “sensitive” positions.
The judge went on to say that Wright “underestimated the likelihood that Appellants would succeed on their informational privacy claims.” While Wright correctly indicated that plaintiffs were unlikely to show that the requirements amounted to a search under the Fourth Amendment, Wardlaw said, they do implicate the constitutional right to “informational privacy.”
Wardlaw wrote:
“Considering the breadth of Form 42’s questions, it is difficult to see how they could be narrowly tailored to meet any legitimate need, much less the specific interests that Federal Appellees have offered to justify the new requirement.
Asking for ‘any adverse information about this person’s employment, residence, or activities’ may solicit some information relevant to ‘identity,’ ‘national security,’ or ‘protecting federal information systems,’ but there are absolutely no safeguards in place to limit the disclosures to information relevant to these interests. Instead, the form invites the recipient to reveal any negative information of which he or she is aware. There is nothing ‘narrowly tailored’about such a broad inquisition.”
The judge went on to say that Caltech, although it objected to the program’s creation, should be a party to the preliminary injunction.
“Here...the record is clear that Caltech...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,” the judge explained. “This decision does not necessarily render Caltech liable as a governmental actor, but it raises serious questions as to whether the university has in fact now become a willful and joint participant in NASA’s investigation program, even though it was not so initially.”
Senior Judge David Thompson and U.S. District Judge Edward Reed of Nevada, sitting by designation, concurred in the opinion.
The case is Nelson v. National Aeronautics and Space Administration, 07-56424.
Copyright 2008, Metropolitan News Company