On Friday, January 11, the Ninth Circuit ordered the District Court to grant preliminary injunctive relief to a group of “low risk” administrative and laboratory employees who were subjected to what they considered to be an unconstitutional requirement of invasive background checks.
The employees worked for the the Jet Propulsion Laboratory (JPL), a combined effort between NASA and the California Institute of Technology (Caltech). The “low risk” personnel had previously worked for Caltech, some of them for a number of years before the contract with NASA, and had never required such background checks before.
From the Judicial Order:
Appellants contest NASAâ€™s newly instated procedures requiring â€œlow riskâ€ JPL personnel to yield to broad background investigations as a condition of retaining access to JPLâ€™s facilities. NASAâ€™s new policy requires that every JPL employee undergo a National Agency Check with Inquiries (NACI), the same background investigation required of government civil service employees, before he or she can obtain an identification badge needed for access to JPLâ€™s facilities. The NACI investigation requires the applicant to complete and submit Standard Form 85 (SF 85), which asks for (1) background information, including residential,educational, employment, and military histories, (2) the names of three references that â€œknow you well,â€ and (3) disclosure of any illegal drug use within the past year, along with any treatment or counseling received for such use.
This information is then checked against four government databases: (1) Security/Suitability Investigations Index; (2) the Defense Clearance and Investigation Index; (3) the FBI Name Check; and (4) the FBI National Criminal History Fingerprint Check. Finally, SF 85 requires the applicant to sign an â€œAuthorization for Release of Informationâ€ that authorizes the government to collect â€œany information relating to [his or her] activities from schools, residential management agents, employers, criminal justice agencies, retail business establishments, or other sources of information.â€ The information sought â€œmay include, but is not limited to, [the applicantâ€™s] academic, residential, achievement, performance, attendance, disciplinary, employment history, and criminal history record information.â€ The record is vague as to the exact extent to and manner in which the government will seek this information, but it is undisputed that each of the applicantsâ€™ references, employers, and landlords will be sent an Request for Personal Informationâ€ (Form 42), which asks whether the recipient has â€œany reason to question [the applicantâ€™s] honesty or trustworthinessâ€ or has â€œany adverse information about [the applicantâ€™s] employment, residence, or activitiesâ€ concerning â€œviolations of law,â€ â€œfinancial integrity,â€ â€œabuse of alcohol and/or drugs,â€ â€œmental or emotional stability,â€ â€œgeneral behavior or conduct,â€ or â€œother matters.â€ The recipient is asked to explain any adverse information noted on the form. Once the information has been collected, NASA and the federal Office of Personnel Management determine whether the employee is â€œsuitableâ€ for continued access to NASAâ€™s facilities, though the exact mechanics of this suitability determination are in dispute.
A footnote adds:
Appellants claim that the factors used in the suitability determination were set forth in a document, temporarily posted on JPLâ€™s internal website, labeled the â€œIssue Characterization Chart.â€ The document identifies within categories designated â€œAâ€ through â€œDâ€ â€œ[i]nfrequent, irregular, but deliberate delinquency in meeting financial obligations,â€ â€œ[p]attern of irresponsibility as reflected in . . . credit history,â€ â€œcarnal knowledge,â€ â€œsodomy,â€ â€œincest,â€ â€œabusive language,â€ â€œunlawful assembly,â€ â€œattitude,â€ â€œhomosexuality . . . when indications are present of possible susceptibility to coercion or blackmail,â€ â€œphysical health issues,â€ â€œmental, emotional, psychological, or psychiatric issues,â€ â€œissues . . . that relate to an associate of the person under investigation,â€ and â€œissues . . . that relate to a relative of the person under investigation.â€ NASA neither concedes nor denies that these factors are considered as part of its suitability analysis; instead, it suggests that Appellants have not sufficiently proved that such factors will play a role in any individual case.
It sounds really messy, especially since Caltech told the appellants that they would be terminated should they not comply or fail the background check. This then created a environment in which they “must choose between their jobs or their constitutional rights”.
As stated, the Ninth Circuit ordered that the background checks should be suspended for the time being and “preliminary injunctive relief should apply…” In other words, the employees can continue working without background checks until the matter is resolved.
I feel like I am not doing this case a great deal of justice in my explanation, however, I do see the potential for this case to have a profound effect upon both California and the Federal government in their respective abilities to conduct questionable, if not unconstitutional background checks.
More information can be found here. The site is a bit pointed, but very thorough.
UPDATE: Jason Schultz, aka Lawgeek, aka my favorite law school prof, also writes about the situation.