Metropolitan News-Enterprise


Friday, June 5, 2009


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Court Denies En Banc Review of JPL Background Checks Ruling


By STEVEN M. ELLIS, Staff Writer


The Ninth U.S. Circuit Court of Appeals, over the dissent of five of its judges, yesterday declined to review en banc a ruling that scientists and other workers at the Jet Propulsion Laboratory are entitled to a temporary injunction against background checks the employees challenged as overly intrusive.

A panel of the court ruled in January that 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 panel sent the case back to Wright with directions to fashion an appropriate injunction.

Judge Kim McLane Wardlaw, who authored the January ruling, explained in a concurrence accompanying yesterday’s order that a majority of the court’s active judges—with the exception of Judges Diarmuid F. O’Scannlain and Sandra S. Ikuta, who were recused—voted to deny en banc review “in a vote that was not close.”

No ‘Exceptional Importance’

Wardlaw attributed the vote to the case’s preliminary posture and lack of an evidentiary record, as well as the lack of an intra- or inter-circuit split, and she said her panel’s “narrow holding does not present an issue of exceptional importance.”

However, Judges Consuelo M. Callahan and Andrew J. Kleinfeld, and Chief Judge Alex Kozinski each wrote dissenting opinions in which they were joined, respectively, by one another and by Judges Richard C. Tallman and Carlos T. Bea.

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 to which they object was developed by the Department of Commerce, NASA’s parent, pursuant to a presidential directive known as HSPD-12.

Mental Health History

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.

They 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 beyond any legitimate security interest.

Wright had found that some of their objections were not ripe for review, that the employees 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.

‘Unprecedented Expansion’

But Wardlaw—joined by Senior Judge David R. Thompson and Senior U.S. District Judge Edward C. Reed Jr. of the District of Nevada, sitting by designation—wrote on appeal that Wright 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, she said.

Callahan—joined by Kleinfeld, Tallman and Bea—argiud that “the panel’s opinion constitutes an unprecedented expansion of the constitutional right to informational privacy.”

She continued:

“Further, assuming that the panel’s opinion correctly assesses the scope of this right, it does not properly apply intermediate scrutiny. This expansion of constitutional privacy rights reaches well beyond this case and may undermine personnel background investigations performed daily by federal, state, and local governments.”

Wardlaw countered that the panel’s opinion was “actually much narrower than Judge Callahan would have her audience believe,” explaining:

“We reversed the district court only to the extent that the government sought disclosure of ‘any treatment or counseling received’ at any time for drug problems…and planned to engage in a free-ranging investigation of the most private aspects of class members’ lives.”

Kleinfeld, joined by Callahan and Bea, wrote separately that:

 “Under the panel opinion, our federal government cannot exercise the reasonable care an espresso stand or clothing store exercises when hiring. No revival of McCarthyism is threatened by allowing as much inquiry for hiring a Jet Propulsion Lab engineer as a barista.”

Kozinski, joined by Kleinfeld and Bea, dissented that the court should have taken the case en banc in order “to synthesize the accumulated experience of panels into firmer guideposts,” and said that the only indication of a “constitutional right to information privacy” comes from “an opaque fragment” mentioned by the Supreme Court 32 years ago in Whalen v. Roe, 429 U.S. 589.

As a result of that case, “courts of appeals have been left to develop the contours of this free-floating privacy guarantee on their own,” Kozinski wrote “It’s a bit like building a dinosaur from a jawbone or a skull fragment, and the result looks more like a turducken.”

The case is Nelson v. National Aeronautics and Space Administration, 07-56424.


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