January 14, 2008

A federal judge issued an injunction on Friday to stop NASA from performing background checks on contract employees at the Jet Propulsion Laboratory in Pasadena, Calif., operated by the California Institute of Technology, while the employees' privacy-invasion lawsuit against the government continues.

The injunction is only the latest development in a complicated legal battle, which Judge Kim Wardlaw of the 9th Circuit Court of Appeals said presented JPL employees with "a stark choice -- either violation of their constitutional rights or loss of their jobs."

"This is a victory for all NASA employees and a victory for those who wrote the constitution of the United States," Robert Nelson, the JPL scientist who is the lead plaintiff in the case, said after the ruling.

A Caltech spokeswoman told the Associated Press that the university would comply with any court ruling on the background checks.

NASA revised its security protocol in 2005 to standardize background investigations for federal and contractor employees, and required JPL's compliance at the beginning of 2007, when it modified the agency's contract with Caltech.

"Caltech vigorously opposed the change," Wardlaw wrote in her decision, but once NASA modified the contract, "the university subsequently adopted a policy -- not required by NASA -- that all JPL employees who did not successfully complete the [background check] process...would be deemed to have voluntarily resigned their Caltech employment."

The school's decision to set higher penalties than the federal government for resisting the background check process helped Wardlaw decide two legal questions.

First, mandating termination of employment made harm to JPL employees clear, she wrote. Second, imposing the penalty undercut Caltech's claim that the school shouldn't be a defendant in the suit. Central District Judge Otis Wright ruled on Jan. 9 that JPL employees had failed to prove the lab's liability, but Wardlaw's decision appeared to override his ruling.

The information sought during the background checks includes standard inquiries into issues such as drug use and addiction treatment, but could be expanded to topics including sexual orientation and behavior, which JPL employees argued was unnecessarily invasive. Wardlaw appeared to agree that the open-ended nature of the background checks, which allowed the government to solicit a wide range of information about employees whose work did not directly involve sensitive issues, posed an immediate threat to JPL scientists.

Form 42, which the government uses to query employees' references, "seeks highly personal information using an open-ended questioning technique, including asking for 'any adverse information' or 'additional information which . . . may have a bearing on this person's suitability for government employment,' " Wardlaw wrote. "Any harm that results from Form 42's dissemination and the information consequently provided to the government will be concrete and immediate."

That harm, Wardlaw continued, was compounded by the fact that Caltech's rule made the background checks a mandatory condition of employment. She rebuked the lower court for suggesting that the harm to JPL employees was minimal.

"The district court erroneously concluded that appellants will not suffer any irreparable harm because they could be retroactively compensated for any temporary denial of employment," Wardlaw wrote. "There is a substantial risk that a number of employees will not be able to finance such a principled position and so will be coerced into submitting . . . Unlike monetary injuries, constitutional violations cannot be adequately remedied through damages. . . . The loss of one's job does not carry merely monetary consequences; it carries emotional damages and stress, which cannot be compensated by mere payment of back wages."

The case will continue at a Feb.15 hearing.