JPL case to be heard by Supreme Court

The U.S. Supreme Court will decide whether low-risk employees at NASA's Jet Propulsion Laboratory must submit to new background checks, more than two years after an appeals court blocked the program over concerns that it violated the Constitution.

The Supreme Court justices are scheduled to review the injunction issued by the U.S. 9th Circuit Court of Appeals in January 2008 that prohibits JPL from subjecting "low-risk" employees — those who do not handle classified material — to exhaustive background investigations.

The federal directive was ordered in 2007 as a more stringent way to vet employees with access to federally controlled facilities and networks.

JPL employees were asked to sign a waiver authorizing unrestricted access to personal information, including financial and health records. The new federal checks would also have included inquiries to employees' neighbors and friends with questions about emotional and financial stability.

A group of 28 engineers and scientists, all low-risk employees, filed a lawsuit in August 2007 challenging the directive, arguing that it was

unreasonable for investigators to review information unrelated to job performance. About 97% of JPL employees are classified as "low-risk."

Such procedures would also set a dangerous precedent for all Americans hoping to protect their privacy, said Robert Nelson, the lead plaintiff in the lawsuit.

"Everyone is very concerned because nobody wants people nosing into their personal records," he said. "Most people live their lives by doing the right thing, and occasionally making a mistake and learning from it. No one wants those mistakes aired by unknown investigators."

In overturning the decision by U.S. District Judge Otis Wright, the appellate court said JPL employees who refused the background checks faced "a stark choice — either violation of their constitutional rights or loss of their jobs."

JPL, which employs about 5,000 people, is the site of several high-profile missions, including sending probes to Mars and Jupiter. None of the plaintiffs were assigned to top-secret material.

In referencing the scientists and engineers, the three-judge panel also wrote that it was "quite clear" that "the balance of hardships tips strongly in their favor."

But attorneys for the federal government have maintained that the injunction limits the ability of officials to thoroughly vet contractors and potential employees.

"The decision prevents the routine background checks of many government contract employees, and it casts a constitutional cloud over the background-check process the government has used for federal civil service employees for 50 years," then-U.S. Solicitor Atty. Gen. Elena Kagan argued in March.

Kagan was recently confirmed as the newest member of the U.S. Supreme Court, which is scheduled to hear the case Oct. 5.

"These are serious issues, and it is really impossible to predict [an outcome], especially with the changing personnel on the court," said Virginia Keeny, an attorney representing the plaintiffs.