Media Advisory HSPD-12 JPL: Court Withdraws Finding of Friday April 25

The Ninth Circuit Court of Appeals has recalled its order of last week denying an en banc hearing to the Government in the Homeland Security Presidential Directive #12 case involving intrusive background investigations of employees at Caltech Jet Propulsion Laboratory. It said that last week’s mandate was an error.

The most recent order of the court states: “04/28/2008 63 Filed clerk order (Deputy Clerk:SW): Recalling mandate as being issued in error Mandate issued on April 25, 2008 is recalled as being issued in error.”

On Friday April 25, 2008 the Ninth Circuit Court of Appeals had issued a mandate in which it declined to review its earlier decision issuing a temporary injunction preventing NASA and the California Institute of Technology from conducting the background investigations. The government had petitioned all of the judges of the Ninth Circuit Court for a review of a January 11, 2008 ruling by a three-judge panel of the Ninth Circuit that issued a temporary injunction stopping the investigations until a full trial is held in federal district court.

On Friday, the court denied the government petition for en banc review stating: “The Court’ January 11 decision takes effect. The three-judge panel has previously declined panel rehearing, and no judge of the circuit elected to call for a full court vote (page 148). The legal conclusions of the January 11 order became the law of the 9th circuit.

The judgment of this Court, entered 01/11/2008, takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure.”

Today’s ruling withdraws the mandate issued last Friday

Robert M. Nelson, a Senior Research Scientist at JPL and the lead plaintiff in the JPL case said, “Our attorneys remind us that the judicial system involves a very deliberate process. We will remain patient and let the judicial activity run its course. While we are waiting, NASA and Caltech are forbidden, under the existing temporary injunction, from conducting the intrusive personal background investigations ordered under HSPD#12.”

Background:

The JPL legal case evolves from a hearing last year in which employees of NASA’s JPL sought injunctive relief against their employer, Caltech, and NASA in order to prevent intrusive personal background investigations. Caltech and NASA argued that these intrusions were required under Homeland Security Presidential Directive #12, an executive order signed by President George W. Bush. Most JPL employees (including all of the plaintiffs in the case) do no classified work.

Federal District Judge Otis Wright III dismissed the case on October 3, 2007. The employees appealed to the Ninth Circuit Court of Appeals, and an emergency temporary injunction was granted on October, 5 2007, just hours before JPL was to begin advertising for replacements for those employees who were deemed non-compliant.

A second panel of the Ninth Circuit Court heard arguments on this case on December 5. On January 11, 2008, the Ninth Circuit Court of Appeals found that “The Appellants have demonstrated serious questions as to certain of their claims on which they are likely to succeed on the merits, and the balance of hardships tips sharply in their favor. We therefore conclude that the district court abused its discretion in denying Appellants’ motion for a preliminary injunction, and we reverse and remand.” In addition, the Ninth Circuit Court reinstated Caltech as a defendant in the case stating, “The court found Caltech did do more [than merely follow government orders]–it established, on its own initiative, a policy that JPL employees who failed to obtain federal identification badges would not simply be denied access to JPL, they would be terminated entirely from Caltech’s employment.”

All court documents relevant to the case can be found at HSPD12JPL.org

Contact: For information regarding JPL employees, Robert M. Nelson, Lead Plaintiff, 818-635-5536, rmnelson2@earthlink.net

For information from plaintiffs attorneys, Virginia Keeney Esq. 626-585-9600