NASA employees continue HSPD-12 fight
By Sami Lais
Published on July 14, 2008
| Who’s leaving JPL |
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In 2006, 409 employees left NASA’s Jet Propulsion Laboratory, said Human Resources Director Cozette Hart.
Laid off: 178
Retired: 61
Left voluntarily: 155
Left for other reasons: 15
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| JPL v. NASA |
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Jet Propulsion Laboratory employees claim:
1. NASA exceeded its authority under the Administrative Procedure Act in investigating contract employees.
2. The investigations constitute unreasonable searches under the Fourth Amendment.
3. They also violate employees’ constitutional right to informational privacy.
On June 20, the U.S. Court of Appeals for the 9th Circuit ruled:
1. For NASA, holding that the National Aeronautics and Space Act of 1958 gives the agency the authority to conduct such investigations.
2. For NASA, holding that information can be private in nature without creating an expectation of privacy or Fourth Amendment protection.
3. For JPL, holding that the broad, open-ended questions of Form 42, used in NASA’s investigations, “appear to range far beyond the scope of the legitimate state interests that the government has proposed.”
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Employees at NASA’s Jet Propulsion Laboratory got an ultimatum last year: Submit to new, more thorough background investigations or leave the agency. Twenty-eight JPL scientists, engineers and administrative support employees instead took their employers to court.
The plaintiffs and some observers say the ensuing legal battle has raised questions about the federal government’s background investigation methods and the constitutionality of the trigger event: Homeland Security Presidential Directive 12. The process also exposed the agency’s laundry list of workforce problems, union officials say.
The latest ruling in the court battle came June 20, when Judge Kim McLane Wardlaw, writing for the U.S. Court of Appeals for the 9th Circuit, determined that federal government investigations violated the privacy of JPL employees.
“This latest decision cuts back on the court’s earlier decision as it no longer is finding an [Administrative Procedure Act] violation,” said the JPL employees’ attorney, Virginia Keeny. “That’s disappointing, but it is finding the investigations are a privacy violation under the Constitution.” APA governs the processes agencies use to create regulations.
Under the National Aeronautics and Space Act of 1958, NASA can perform security checks of employees without violating the APA, the court said.
In November 2005, the agency extended its requirement for National Agency Check with Inquiries (NACI) investigations to its contractors, which include all 5,467 JPL employees. The California Institute of Technology operates JPL under contract from NASA.
The court also agreed that Caltech is a defendant. That’s an important point “because Caltech and not NASA is the one that cooked up the scheme to fire people who refused to sign Form 85,” said Robert Nelson, lead plaintiff in the suit and lead scientist for NASA’s New Millennium Program to advance space flight technology.
Standard Form 85 is the Office of Personnel Management’s questionnaire for nonsensitive positions. The court ruled that the government may ask employees and job applicants, as it does on Form 85, whether they have used, possessed, manufactured or supplied drugs.
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