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A Letter to Colleagues

A group of former plaintiffs in the HSPD-12 legal action wrote a letter to their colleagues at JPL:
As you know from the August 25 e-mail from JPL Deputy Director Eugene Tattini, JPL/Caltech has resumed HSPD12 credentialing and the associated investigations. The e-mail suggests that 25% of employees are yet to be badged. Some of those employees have been waiting until the lawsuit was resolved, either anticipating a better process or simply biding time. Many of them have contacted former plaintiffs in the lawsuit with questions about the process and for guidance on how to proceed. We address some of those questions ...
The full text of the letter can be found here.

HSPD-12 Legal Action Dismissed, Injunction Lifted

On June 22, 2011, the District Court granted NASA's motion to dismiss the case, and vacated the injunction that halted the implementation of HSPD-12 investigations at JPL:
IT IS SO ORDERED that, in light of the United States Supreme Courtís decision in the above-captioned matter, Defendantís pending Motion is hereby GRANTED. The July 11, 2011 hearing on this matter is VACATED and no appearances are necessary. Furthermore, the preliminary injunction entered by this Court on March 13, 2008 is VACATED, and this matter is DISMISSED with prejudice, each party to bear its own fees and costs.

(Signed) HON. OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE
In anticipation of the District Court's final proceedings following the Supreme Court's ruling in NASA v. Nelson, the Plaintiffs had filed the following statement with the Court:
TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD:

Plaintiffs will not oppose a motion to dismiss by Defendants, nor an order of dismissal by this Court, in light of the following factors: 1) The Supreme Courtís decision in this matter, which assumed the existence of the right to informational privacy but refused to decide its scope; 2) the fact that NASA has decided to remove the Suitability Matrix challenged by this injunctive relief action and replace it with a less objectionable list of criteria; and 3) the fact that this action only presented a facial challenge to the background investigation process, and not a challenge to the actual application of such an investigation.

In light of these considerations, plaintiffs hereby stipulate that the matter may be dismissed either by the courtís own motion or upon motion of Defendants.

DATED: May 2, 2011

U.S. Supreme Court Rules for NASA in JPL Employees' HSPD-12 Privacy Case

On January 19, 2011, the U.S. Supreme Court reversed the decision of the 9th Circuit Court of Appeals and held that the challenged questions on federal forms SF-85 (inquiring the subject on any treatment received for recent drug use) and INV42 (sent to references and soliciting information on the subject's honesty and integrity, as well as other general conduct, use of intoxicants, finances and mental health) do not impinge upon JPL employees' right to informational privacy. The majority decision was written by justice Alito. Justices Scalia and Thomas both filed opinions concurring in judgment. The case was remanded to lower courts for further proceedings.

The majority opinion noted that "NASA will not and does not use" the "suitability matrix" previously given by JPL management the the lab employees as the guidelines for HSPD-12 suitability determinations. The court also noted Solicitor General's assertion that "NASA views treatment or counseling solely as a "mitigat[ing]" factor that ameliorates concerns about recent illegal drug use."

American Astronomical Society Leadership Write to NASA Deputy Administrator Ms. Lori Garver

The letter states, in part:
Dear Ms. Garver:

We are writing to you in our capacities as President of the American Astronomical Society (AAS) and Vice-Chairman of its largest division, the Division for Planetary Sciences (DPS) on the issue of background investigations of members of NASA's Jet Propulsion Laboratory staff, many of whom are AAS-DPS members. The Supreme Court has ruled that background investigations of federal contract employees like those at JPL are permissible where appropriate, but the nature and breadth of the background investigations remain at the discretion of the individual agency (Case #09-530). The decision regarding how NASA proceeds is in the hands of you and Administrator Bolden.

We hope that you might consider our suggestions as you deliberate this question. We have worked with many of the plaintiffs and submitted an Amicus Curiae brief to the Supreme Court (the first in the 112-year history of the AAS) in connection with this case. We understand that while the case was motivated by matters of unlimited investigations of personal privacy, we are also strongly concerned that an intrusive background investigation policy will detract from NASA's ability to draw the highest level of technical talent for the Agency's mission. Our view is summarized in the wording of the AAS Amicus Curiae, which said, in part, "Yet, a significant number of US astronomers would be or are unwilling to work in an environment where they are subject to intrusive, open-ended background investigations at issue here. Their loss will impact the entire professional community - even those individuals that agree to undergo the background investigations."

...

Please consider the following:
1) Homeland Security Presidential Directive #12 (HSPD12) requires only that a uniform identification badge be established for all employees and contractors at federal facilities. Background investigations are never mentioned in the directive[...]
2) Some agencies such as the National Science Foundation did not issue new credentials to employees at facilities under their cognizance. At Department of Energy-administered FFRDCs where little or no classified work is done (e.g., Fermilab), HSPD12 procedures were not imposed on workers who did not do classified work [...]
We suggest that an approach modeled on the DOE and NSF implementations would lead to a reasonable closure of the HSPD12 matter. It is a solution that respects the security concerns of the government, the privacy concerns of JPL employees, and maintains the broadest reasonable access for the astronomical community to participate fully in exciting work that brings us all to NASA.

Yours sincerely,

[signed]
Debra M. Elmegreen, President
American Astronomical Society

[signed]
Daniel Britt, Vice-Chairman
AAS Division for Planetary Sciences
The full text of the letter and the AAS Amicus Curiae filing are available.

Path Forward

An Open Letter from the plaintiffs to their JPL colleagues.

Science and Civil Liberties Stakeholder Support

Amicus curiae briefs in support of JPL employees have been filed by
American Astronomical Society,
Union of Concerned Scientists,
Electronic Frontier Foundation,
The American Civil Liberties Union,
Drug Policy Alliance,
The Electronic Privacy Information Center and Legal Scholars and Technical Experts, and
California Employment Lawyers Assocaition.
Thank you!



Our superb legal team -- Hadsell, Stormer, Keeny, Richardson & Renick LLP -- is one of the nation's premier civil rights firms, and has given generously of their time to fight for our rights. We are urging supporters to contribute to the legal fund. Please send your donations, payable to "HSKRR", to Bob Nelson, 775 N. Mentor Ave., Pasadena, CA 91104.
Status

Current Status as of July 11, 2011

  • Injunction: No longer in force.
  • Court Case against NASA: Dismissed.


Dr. Robert Nelson, lead plaintiff, provides a brief summary of the case in an interview with Law and Disorder Radio (audio also available here, at 8:30 minute mark).

For more details on the legal case, please see the Lawsuit(Updated 9/24/10) and Timeline(Updated 9/24/10) pages.


Statement

Other News:

  • On May 17, 2010, Office of Personnel Management issued a Federal Investigations Notice stating, in part:
    As you may know, questions have arisen in recent litigation as to whether any additional standards may be used for identity credentialing. In Nelson v. NASA, 530 F.3d 865 (9th Cir. 2008), cert. granted, No. 09-530, 2010 WL 757694 (2010), a case now before the U.S. Supreme Court, a group of individuals employed by a NASA contractor at NASA's Jet Propulsion Laboratory (JPL) have sued to enjoin the Government from conducting the background checks necessary for issuing identity credentials under HSPD-12.Those individuals contend that the government will make identity credentialing decisions based on an "issue characterization chart" posted on JPL' s intranet site. That chart lists standards that are different from those prescribed by OPM in the guidance described above. In light of the questions raised by the plaintiffs in the Nelson litigation, OPM issues this further memorandum to ensure that there is no confusion or misinformation about the factors that Government agencies may consider when making credentialing determinations.
    A publicly accessible document containing the chart at issue as Attachment 2, "Office of Personnel Management Issue Characterization Chart", NASA Desk Guide for Suitability and Security Clearance Processing, was replaced in early 2010 with a stub document stating that "THIS DOCUMENT IS NO LONGER AVAILABLE FOR VIEWING". The stub metadata dates the document as 2/16/2010. A local copy of the Desk Guide is still available. It mentions "carnal knowledge", "attitude", "sodomy", "keeping house of ill repute", "bestiality", "displaying of obscene material" as disqualifying factors. "Cohabitation, adultery, illegitimate children" could also be disqualifying.
  • NASA HSPD-12 badge holder is a health hazard.
  • January 31, 2008. Robert Nelson, Dennis Byrnes and Susan Foster, plaintiffs in the matter Nelson et al. vs. NASA, Dept. of Commerce and Caltech, on behalf of concerned Caltech employees at JPL wrote a letter highlighting the Appellate Court injunction decision and seeking help and support from the broader Caltech academic community. This and previous letters, as well as other material distributed to JPL and Caltech community can be found on the Reference Documents page
  • In the ongoing proceedings in the District Court, plaintiffs move to certify the following class (suppl.) for injunctive and declaratory relief:
    All current and future employees and subcontractors of the California Institute of Technology hired to work at the Jet Propulsion Laboratory, or required to have physical or electronic access to that laboratory, who hold "non sensitive" or low risk positions, and are required to complete OPM Standard Form 85 and submit to a background investigation as set forth in NASA Interim Directive 1600.1.
  • See more details on the Lawsuit, Press releases, and Media Coverage pages.

Other new things on this site

  • Interactive timeline of the court proceedings and the associated events.
  • If you want a T-shirt, button, mousepad, or mug, please visit cafepress.com/hspd12jpl. This is the recommended way for people outside of the local area to acquire these items. (JPLers can also get one by contacting the webmaster.) We don't get any of this money, but it is still a great way to show your support!
  • JPL scientists call for senate inquiry. Read their letter, which is also archived on the reference documents page.
  • See an informational brochure you can print and distribute yourself. It's on the reference documents page, too.

Outside JPL

  • On June 3, 2008 U.S. Reps. Kucinich and Davis addressed HSPD-12 among other NASA workforce issues in the context of NASA's budget authorization:
    ...we recommend that H.R. 6063 include a provision that requires that NASA halt implementation of its new policy of reinvestigating employees in low-risk positions, until the constitutionality of this process is fully settled by the Courts. The President issued Homeland Security Policy Directive #12 to mandate that all civil servant and contractor employees who have access to federal facilities be subjected to standard background checks and be issued standardized badges that can allow Agencies to reliably verify an employee's identity. While we do not object to this security measure, its implementation has been flawed. NASA has used HSPD-12 to instigate a new security policy, NPR1600.1, which establishes periodic reinvestigation of long-time NASA civil-servant employees who have already passed earlier background checks. Furthermore, the affected positions include those rated as low-risk. The process is so intrusive, the 9th circuit Court of Appeals issued an injunction preventing its implementation for the Jet Propulsion Laboratory contract employees pending judicial review. Regrettably, NASA has decided to interpret this injunction narrowly and to move forward with re-investigations of low-risk civil-service employees using the same constitutionally suspect process. We believe that the decision to go beyond HSPD-12 and to subject NASA's civil service employees to an unnecessary, expensive and intrusive invasion of privacy is unwarranted and unwise.
  • On April 9, 2008, U.S. House of Representatives Subcommittee on Government Management, Organization and Procurement (Committee on Oversight and Government Reform) held a hearing, "Federal Security: ID Cards and Background Checks."

    "The hearing [released] a new Government Accountability Office (GAO) report finding that the program is incurring high costs but providing little benefit to date..."

    Letters written to the committee are on our Forum. We encourage you to post yours as well.
  • No federal agency met the October 27, 2007 deadline to complete the HSPD-12 background checks
  • IRS wasted millions of dollars implementing HSPD-12, according to an Inspector General report. The same report cites the estimated 14-year cost of implementing HSPD-12 at the Dept. of the Treasury (with 1.5x as many personnel as NASA), at $421 Million, a bit over the cost of a Mars scout mission
  • NASA's Johnson Space Center employees and contractors are concerned about HSPD-12.
  • Ames Federal Employees Union is concerned about aspects of HSPD-12 rebadging.
  • Contractor employees of U.S. Department of Education have a problem with the "security screenings".


Overview
Welcome to the fight against JPL's rebadging process. This site contains information about why the $6 million rebadging process is unfair, unethical, and illegal. Read about it for yourself, and if you agree with us, join our fight against it!

You may be shocked when you find out what is really involved, how dangerous it is, and how much of your freedom you are giving up. To get rebadged, you don't simply provide information on forms-- you provide information that begins an investigation of you.

Did you know:
  • That the release form on the SF85 or SF85P authorizes an investigator to obtain "any information" on you from schools, residences, employers, criminal establishments, and any other sources, and that the investigation is explicitly "not limited"?
  • That each of the neighbors, supervisors, and references you are required to provide will be sent a questionnaire asking about your "mental or emotional stability," "financial integrity," and "abuse of alcohol and/or drugs," among other things?
  • That SF85 remains in effect for two years, whether or not you stay at JPL? In other words, federal agents can use your SF85 release as permission to investigate you for two full years, even if you are no longer affiliated with a federal agency
  • That the new rules prevent JPL from issuing retiree badges?
  • That the official SF85 and SF85p forms describe the process as "voluntary," but that jpl will terminate your employment if you don't fill it out?
This is just a sampling of why the process is causing concern. If these provisions worry you even a little, you may want to read the FAQ and in-depth research to learn more.

If you are new to how HSPD-12 works at JPL, you may also want to read this overview of HSPD-12 and the JPL rebadging process.

Last updated: April 19, 2011
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