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Supreme Court to Hear NASA Background Check Case

By Tanya Roth, Esq. | Last updated on

As discussed in another post, last June a case was heard by the 9th Circuit Court of Appeals, wherein 28 engineers, scientists and other employees at the Jet Propulsion Lab in California (run by NASA) challenged the background checks instituted after 9/11. In December, the government attorneys asked the Supreme Court to hear the case. On March 8, the Supreme Court has agreed to do so in its upcoming term, beginning in October.

The case began when the plaintiffs brought suit after NASA began requiring all employees at the California Institute of Technology lab to submit to background checks as a condition of employment. As we know, most employers use some form of background check. As noted in the prior post on the case, 9th Circuit Court Judge Andrew J. Kleinfeld wrote that everyone endures background checks today, even the guy who runs your favorite espresso cart.

Even though it is reasonable to require more in-depth questions on the background checks for rocket scientists than on the person who makes your latte, the plaintiffs' suit for invasion of privacy claims NASA wished to have the following information about a current or prospective employee and, "drug or alcohol use... "loitering, homosexuality, illegal gambling, mutilation of public records, indecent proposal, black market activities (nonprofit), 'carnal knowledge and sodomy.'" The mind boggles at the government wishing to know about one's experience with "indecent proposal," not to mention "multination of public records."

The Court of Appeal's confusion as to the applicable privacy law in this case lead to Chief Judge Alex Kozinski's famous "turducken" comment, which bears repeating. As many may know, a turducken is a Southern delicacy formed from a chicken, stuffed in a duck, stuffed in a turkey. The Judge wrote, "we have a grab bag of cases on specific issues, but no theory as to what this right [to privacy] ... is all about. It's a bit like building a dinosaur from a jawbone ... and the result looks more like a turducken."

Likening a whole area of law to this mismatched, if delicious, dish clearly indicated the circuit court's hope that the Supreme Court provide guidance in this area. It is unknown if it was Judge Kozinski's colorful metaphor that lead the High Court to hear the case, or merely the arguments of the government lawyers that the decision to block the background checks could lead to the prevention of the routine background checks of many government employees and cast constitutional doubt on a process that has been used for more than 50 years.

Despite the supposed necessity for the all-knowing background check, Reuters reports that the Jet Propulsion Lab is located on the open campus of Cal Tech, has limited security and allows visitors to enter the lab.

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