Feds ask judge to dismiss smart-ID case filed by NASA contractors

Computerworld - The U.S. District Court in Los Angeles will hold a hearing Friday on a motion to dismiss a case involving 28 NASA contractors suing the government over background checks that are required under a mandatory smart card credentialing program.

The contractors are senior scientists and engineers at the Jet Propulsion Laboratory (JPL), which is staffed and managed for NASA by the California Institute of Technology (Caltech).

The group filed suit last August in Los Angeles District Court against the U.S. government, NASA and Caltech, challenging what they claimed were overly intrusive background check requirements by NASA. The 28 JPL employees asked the court to not only permanently stop the background investigations but to also issue a preliminary injunction to halt the checks while the case was considered.

The background checks that were at the center of the issue were required under the Homeland Security Presidential Directive-12 of August 2004, a presidentially mandated smart-card credential program. HSPD-12 requires federal agencies to issue new tamper-proof smart-card identity credentials called Personal Identity Verification (PIV) cards to all employees and contractors. As part of the program, all employees and contractors are required to submit to comprehensive background checks, including criminal histories.

Federal agencies were supposed to have completed those checks and issued PIV cards to all employees with less than 15 years experience by last October, though many failed to meet the deadline.

In their suit (PDF format), the JPL employees claimed that the NASA requirement violated their constitutional right to "informational privacy", the right to be free from unreasonable searches and the right against self-incrimination. The scientists argued that none of them were doing any classified work for NASA and said the mandated background checks were too open-ended, and pried into "protected associational activities." They claimed the checks submitted them "to a determination of their suitability for employment that includes such wrong-headed and/or dangerously vague criteria" such as sexual orientation as well as medical and emotional history.

The judge hearing the case initially dismissed it on October 3. However following an appeal by the employees the Ninth Circuit Court of Appeals issued a temporary injunction on October 5. The injunction was issued literally hours before JPL was to begin advertising for replacements for employees who were deemed non-compliant with HSPD-12, according to a press release announcing today's hearing from one of the plaintiffs.

That temporary injunction still remains in place. A three-judge panel of the United States Court of Appeals for the Ninth Circuit is still deliberating whether to extend it.

In the meantime both Caltech and the government filed motions for dismissing the case in District Court. Those motions were allowed to continue by the Ninth Circuit court. On January 9, District Court judge Otis Wright, who is presiding over the case, issued an order dismissing Caltech as a party to the lawsuit.

Today's hearing is expected to focus on the federal motion to dismiss the case.

"We cannot predict what will happen, and we do not know whether the Ninth Circuit will issue its ruling before the Friday hearing," a statement on the plaintiffs' Web site noted.

It is possible that the judge could postpone the hearing until the Ninth Circuit makes a ruling regarding the temporary injunction, or it could hear arguments on the motion to dismiss and then postpone its decision until hearing from the Ninth Circuit, the Web site noted.

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