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Nelson v. NASA (9th Cir. - June 4, 2009)

By Shaun Martin

Most of the opinions from the Ninth Circuit get published at 10:00 a.m. But sometimes, particularly with en banc denials (and associated opinions), they dribble in thereafter. Which happens today. To the tune of five different missives in Nelson v. NASA.

It's a good case, on a relatively novel issue. Can the Jet Propulsion Laboratory (JPL) require new, intrusive background checks on existing long-term employees? Or do the employees have a constitutional right not to have that happen?

The district court denied the plaintiffs' motion to preliminarily enjoin the new checks, but around a year ago, a panel in the Ninth Circuit unanimously reversed, holding there were serious issues about the constitutionality of the program and that the balance of hardships favored an injunction. Then came the (predictable) vote to take the case en banc -- when you're at least allegedly dealing with national security, that's gonna happen.

What happens then? The best way to frame the result is to use Judge Wardlaw's concurrence. Since it's both descriptive and telling.

First, adopting a trick from Judge Reinhardt (who joins her concurrence), Judge Wardlaw tells everyone the outcome of the en banc vote without (facially) violating the rules against doing so. "[T]he active judges of our court, in a vote that was not close, denied rehearing of this case en banc." Dropping a footnote to Reinhardt's concurrence last month in Cooper in which he again rails against keeping en banc votes secret (my discussion here).

Second, Judge Wardlaw tells you who authors dissents from the denial. And, more interestingly, tells you -- with very few holds barred -- what she thinks about 'em. Her reaction falls into two categories. First, there's Judge Callahan's dissent. As to which Judge Wardlaw is fairly vicious. Judge Wardlaw repeatedly refers to Judge Callahan by name in her concurrence, and I get the distinct sense it's not merely for reference. Perhaps that's because of lines like these: "Our opinion is actually much narrower than Judge Callahan would have her audience believe." Snap!! "Her audience". Wow. Tell us what you really think, Kim.

So Judge Callahan's dissent is in the first group. Judge Wardlaw also responds to Judge Kleinfeld's dissent, and her response there is deliberately measured and fairly neutral. Judge Wardlaw finally responds to Chief Judge Kozinski's dissent, and her response to him is affirmatively solicitous, with lines like: "Chief Judge Kozinski?s dissent thoughtfully raises a number of considerations to be taken into account in shaping the right of informational privacy." It's as if Judge Wardlaw is saying: "Alex: Smart, reasonable, but slightly off. Andy: Good, solid arguments, but wrong. Connie: Get real." Only in 24 pages.

Plus we have the now-predictable pitches to the United States Supreme Court. From Judge Callahan, an opening line that both ups the ante and mirrors verbatim one of the bases for certiorari: "This case places before the court an issue of exceptional importance: the degree to which the government can protect the safety and security of federal facilities." From Judge Wardlaw, the rejoinder, ending her concurrence in the denial with: "Even the Supreme Court would find it a much surer task to outline the contours of the doctrine of informational privacy with some of Judge Kozinski?s questions actually answered. Therefore, I concur in the denial of en banc rehearing, and await the next round."

Not hard to figure out who the "audience" is for each of those lines, eh?

Good stuff all around.

Full post as published by California Appellate Report on June 04, 2009 (boomark / email).