Nelson v. Nasa ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT M. NELSON; WILLIAM 
BRUCE BRANERDT; JULIA BELL;
JOSETTE BELLAN; DENNIS V.
BYRNES; GEORGE CARLISLE; KENT
ROBERT CROSSIN; LARRY R.
D’ADDARIO; RILEY M. DUREN;
PETER R. EISENHARDT; SUSAN D.J.
FOSTER; MATTHEW P. GOLOMBEK;
VAROUJAN GORJIAN; ZAREH
GORJIAN; ROBERT J. HAW; JAMES
KULLECK; SHARLON L. LAUBACH;
CHRISTIAN A. LINDENSMITH; No. 07-56424
AMANDA MAINZER; SCOTT D.C. No.
MAXWELL; TIMOTHY P. MCELRATH;
SUSAN PARADISE; KONSTANTIN
 CV-07-05669-ODW
PENANEN; CELESTE M. SATTER; ORDER AND
PETER M. B. SHAMES; AMY SNYDER OPINION
HALE; WILLIAM JOHN WALKER;
PAUL R. WEISSMAN,
Plaintiffs-Appellants,
v.
NATIONAL AERONAUTICS AND SPACE
ADMINISTRATION, an Agency of the
United States; MICHAEL GRIFFIN,
Director of NASA, in his official
capacity only; UNITED STATES
DEPARTMENT OF COMMERCE;

7137
7138 NELSON v. NASA
CARLOS M. GUTIERREZ, Secretary 
of Commerce, in his official
capacity only; CALIFORNIA 
INSTITUTE OF TECHNOLOGY,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted
December 5, 2007—Pasadena, California
Filed June 20, 2008
Before: David R. Thompson and Kim McLane Wardlaw,
Circuit Judges, and Edward C. Reed, Jr.,* District Judge.
Opinion by Judge Wardlaw
*The Honorable Edward C. Reed, Jr., Senior United States District
Judge for the District of Nevada, sitting by designation.
7142 NELSON v. NASA
COUNSEL
Dan Stormer and Virginia Keeny, Law Offices of Hadsell &
Stormer, Inc., Pasadena, California, for the plaintiffs-
appellants.
Mark B. Stern and Dana Martin, U.S. Department of Justice,
Appellate Staff Civil Division, Washington, D.C., and Mark
Holscher, R. Alexander Pilmer, and Mark T. Cramer, Kirk-
land & Ellis LLP, Los Angeles, California, for the defendants-
appellees.
ORDER
Our prior opinion filed on January 11, 2008, and reported
at 512 F.3d 1134 is vacated concurrent with the filing of a
new opinion today.
The petition for panel rehearing and the petition for rehear-
ing en banc are denied as moot. The parties may file new peti-
tions for rehearing and rehearing en banc in accordance with
the Federal Rules of Appellate Procedure.
IT IS SO ORDERED.
OPINION
WARDLAW, Circuit Judge:
The named appellants in this action (“Appellants”) are sci-
entists, engineers, and administrative support personnel at the
Jet Propulsion Laboratory (“JPL”), a research laboratory run
jointly by the National Aeronautics and Space Administration
(“NASA”) and the California Institute of Technology
(“Caltech”). Appellants sued NASA, Caltech, and the Depart-
NELSON v. NASA 7143
ment of Commerce (collectively “Appellees”), challenging
NASA’s recently adopted requirement that “low risk” con-
tract employees like themselves submit to in-depth back-
ground investigations. The district court denied Appellants’
request for a preliminary injunction, finding they were
unlikely to succeed on the merits and unable to demonstrate
irreparable harm. Because Appellants raise serious legal and
constitutional questions and because the balance of hardships
tips sharply in their favor, we reverse and remand.
I
JPL is located on federally owned land, but operated
entirely by Caltech pursuant to a contract with NASA. Like
all JPL personnel, Appellants are employed by Caltech, not
the government. Appellants are designated by the government
as “low risk” contract employees. They do not work with
classified material.
Appellants contest NASA’s newly instated procedures
requiring “low risk” JPL personnel to yield to broad back-
ground investigations as a condition of retaining access to
JPL’s facilities. NASA’s new policy requires that every JPL
employee undergo a National Agency Check with Inquiries
(NACI), the same background investigation required of gov-
ernment civil service employees, before he or she can obtain
an identification badge needed for access to JPL’s facilities.
The NACI investigation requires the applicant to complete
and submit Standard Form 85 (SF 85), which asks for
(1) background information, including residential, educa-
tional, employment, and military histories; (2) the names of
three references that “know you well;” and (3) disclosure of
any illegal drug use, possession, supply, or manufacture
within the past year, along with the nature and circumstances
of any such activities and any treatment or counseling
received. This information is then checked against four gov-
ernment databases: (1) Security/Suitability Investigations
Index; (2) the Defense Clearance and Investigation Index;
7144 NELSON v. NASA
(3) the FBI Name Check; and (4) the FBI National Criminal
History Fingerprint Check. Finally, SF 85 requires the appli-
cant to sign an “Authorization for Release of Information”
that authorizes the government to collect “any information
relating to [his or her] activities from schools, residential
management agents, employers, criminal justice agencies,
retail business establishments, or other sources of informa-
tion.” The information sought “may include, but is not limited
to, [the applicant’s] academic, residential, achievement, per-
formance, attendance, disciplinary, employment history, and
criminal history record information.”1 The record is vague as
to the exact extent to and manner in which the government
will seek this information, but it is undisputed that each of the
applicants’ references, employers, and landlords will be sent
an “Investigative Request for Personal Information” (Form
42), which asks whether the recipient has “any reason to ques-
tion [the applicant’s] honesty or trustworthiness” or has “any
adverse information about [the applicant’s] employment, resi-
dence, or activities” concerning “violations of law,” “financial
integrity,” “abuse of alcohol and/or drugs,” “mental or emo-
tional stability,” “general behavior or conduct,” or “other mat-
ters.” The recipient is asked to explain any adverse
information noted on the form. Once the information has been
collected, NASA and the federal Office of Personnel Manage-
ment determine whether the employee is “suitable” for contin-
ued access to NASA’s facilities, though the exact mechanics
of this suitability determination are in dispute.2
1
The form also notes that “for some information, a separate specific
release will be needed,” but does not explain what types of information
will require a separate release.
2
Appellants claim that the factors used in the suitability determination
were set forth in a document, temporarily posted on JPL’s internal web-
site, labeled the “Issue Characterization Chart.” The document identifies
within categories designated “A” through “D” “[i]nfrequent, irregular, but
deliberate delinquency in meeting financial obligations,” “[p]attern of irre-
sponsibility as reflected in . . . credit history,” “carnal knowledge,” “sod-
omy,” “incest,” “abusive language,” “unlawful assembly,” “attitude,”
NELSON v. NASA 7145
Since it was first created in 1958, NASA, like all other fed-
eral agencies, has conducted NACI investigations of its civil
servant employees but not of its contract employees. Around
the year 2000, however, NASA “determined that the incom-
plete screening of contractor employees posed a security vul-
nerability for the agency” and began to consider requiring
NACI investigations for contract employees as well. In
November 2005, revisions to NASA’s Security Program Pro-
cedural Requirements imposed the same baseline NACI
investigation for all employees, civil servant or contractor.
These changes were not made applicable to JPL employees
until January 29, 2007, when NASA modified its contract
with Caltech to include the requirement. Caltech vigorously
opposed the change, but NASA invoked its contractual right
to unilaterally modify the contract and directed Caltech to
comply immediately with the modifications. Caltech subse-
quently adopted a policy—not required by NASA—that all
JPL employees who did not successfully complete the NACI
process so as to receive a federal identification badge would
be deemed to have voluntarily resigned their Caltech employ-
ment.
On August 30, 2007, Appellants filed suit alleging, both
individually and on behalf of the class of JPL employees in
non-sensitive or “low risk” positions, that NASA’s newly
imposed background investigations are unlawful. Appellants
bring three primary claims: (1) NASA and the Department of
Commerce (collectively “Federal Appellees”) violated the
Administrative Procedure Act (“APA”) by acting without
“homosexuality . . . when indications are present of possible susceptibility
to coercion or blackmail,” “physical health issues,” “mental, emotional,
psychological, or psychiatric issues,” “issues . . . that relate to an associate
of the person under investigation,” and “issues . . . that relate to a relative
of the person under investigation.” NASA neither concedes nor denies that
these factors are considered as part of its suitability analysis; instead, it
suggests that Appellants have not sufficiently proved that such factors will
play a role in any individual case.
7146 NELSON v. NASA
statutory authority in imposing the investigations on contract
employees; (2) the investigations constitute unreasonable
searches prohibited by the Fourth Amendment; and (3) the
investigations violate their constitutional right to informa-
tional privacy.
On September 24, 2007, Appellants moved for a prelimi-
nary injunction against the new policy on the basis that any
JPL worker who failed to submit an SF 85 questionnaire by
October 5, 2007, would be summarily terminated. The district
court denied Appellants’ request. It divided Appellants’
claims into two categories—those challenging the SF 85 ques-
tionnaire itself and those challenging the grounds upon which
an employee might be deemed unsuitable—and found that the
challenges to the suitability determination were highly specu-
lative and unripe for judicial review. The court rejected
Appellants’ APA claim, finding statutory support for the
investigations in the National Aeronautics and Space Act of
1958 (the “Space Act”), 42 U.S.C. § 2455(a). The court
rejected Appellants’ Fourth Amendment argument, holding
that a background investigation was not a “search” within the
meaning of the Fourth Amendment. Finally, the court found
that the SF 85 questionnaire implicated the constitutional right
to informational privacy but was narrowly tailored to further
the government’s legitimate security interest. After conclud-
ing that Appellants had little chance of success on the merits,
the district court also found that they could not demonstrate
irreparable injury because any unlawful denial of access to
JPL’s facilities could be remedied post hoc through compen-
satory relief.
On appeal, a motions panel of our court granted a tempo-
rary injunction pending a merits determination of the denial
of the preliminary injunction. Nelson v. NASA, 506 F.3d 713(9th Cir. 2007). The panel concluded that the information
sought by SF 85 and its waiver requirement raised serious pri-
vacy issues and questioned whether it was narrowly tailored
to meet the government’s legitimate interest in ascertaining
NELSON v. NASA 7147
the identity of its low-risk employees. Id. at 716. The panel
further found that “[t]he balance of hardships tips sharply in
favor of [A]ppellants,” who risk losing their jobs pending
appeal, whereas there was no exigent reason for performing
the NACI investigations during the few months pending
appeal given that “it has been more than three years since the
Presidential Directive [upon which the government relies]
was issued.” Id. at 716.
II
To obtain preliminary injunctive relief, Appellants must
demonstrate either “(1) a likelihood of success on the merits
and the possibility of irreparable injury; or (2) that serious
questions going to the merits were raised and the balance of
hardships tips sharply in its favor.” Walczak v. EPL Prolong,
Inc., 198 F.3d 725, 731 (9th Cir. 1999). The two prongs are
not separate tests but rather “extremes of a single continuum,”
so “the greater the relative hardship to [the party seeking the
preliminary injunction], the less probability of success must
be shown.” Id. (internal quotation marks omitted).
Upon review of the merits of the district court’s denial of
preliminary injunctive relief, we find ourselves in agreement
with the motions panel. Appellants have demonstrated serious
questions as to their informational privacy claim, and the bal-
ance of hardships tips sharply in their favor. We therefore
conclude that the district court abused its discretion in deny-
ing Appellants’ motion for a preliminary injunction, and we
reverse and remand.
A. Standing and Ripeness
The district court found that the justiciability doctrines of
ripeness and standing precluded consideration of Appellants’
claims, except as they concerned the SF 85 questionnaire and
associated waiver. We agree with the district court that Appel-
lants’ claims concerning the suitability determination are
7148 NELSON v. NASA
unripe and unfit for judicial review; however, the district
court misconstrued Appellants’ informational privacy claim,
viewing it as limited to the SF 85 questionnaire alone.
[1] To enforce Article III’s limitation of federal jurisdiction
to “cases and controversies,” plaintiffs must demonstrate both
standing and ripeness. To demonstrate standing, a plaintiff
“must have suffered an ‘injury in fact’—an invasion of a
legally protected interest which is (a) concrete and particular-
ized, . . . and (b) actual or imminent, not conjectural or hypo-
thetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992) (internal citations and quotation marks omitted). The
ripeness doctrine similarly serves “to prevent the courts,
through avoidance of premature adjudication, from entangling
themselves in abstract disagreements over administrative poli-
cies” and requires assessing “ ‘both the fitness of the issues
for judicial decision and the hardship to the parties of with-
holding court consideration.’ ” Ass’n of Am. Med. Colls. v.
United States, 217 F.3d 770, 779-80 (9th Cir. 2000) (quoting
Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967)).
[2] In analyzing justiciability, the district court distilled
Appellants’ claims into two basic arguments: (1) “that SF 85
is overly broad and intrusive considering the ‘low-risk’ nature
of [appellants’] jobs at JPL” and (2) “that JPL’s internal pol-
icy, which lists various grounds upon which an employee can
be determined unsuitable for employment, is unconstitution-
al.” We agree that challenges to the suitability determination
are unripe because the record does not sufficiently establish
how the government intends to determine “suitability”—
accordingly, any claims are “strictly speculative.” We also
agree that Appellants have standing to challenge the SF 85
questionnaire, and because “it is undisputed that if [Appel-
lants] do not sign the SF 85 waiver by October 5, 2007,” they
will “be deemed to have voluntarily resigned,” there exists a
“concrete injury that is imminent and not hypothetical” and
thus ripe for review.
NELSON v. NASA 7149
[3] However, the district court overlooked Appellants’
challenges to the government investigation that will result
from the SF 85 requirement that the applicant sign an “autho-
rization for release of information.” On its face, this waiver
authorizes the government to collect “any information . . .
from schools, residential management agents, employers,
criminal justice agencies, retail business establishments, or
other sources of information” “includ[ing], but . . . not limited
to, . . . academic, residential, performance, attendance, disci-
plinary, employment history, and criminal history record
information.” (emphasis added). It is uncontested that as a
result of this authorization, the government Office of Person-
nel Management will send out “Investigative Request[s] for
Personal Information,” Form 42, to references, employers,
and landlords. This form seeks highly personal information
using an open-ended questioning technique, including asking
for “any adverse information” at all or any “additional infor-
mation which . . . may have a bearing on this person’s suit-
ability for government employment.” Any harm that results
from Form 42’s dissemination and the information conse-
quently provided to the government will be concrete and
immediate.
[4] Because Federal Appellees freely admit that Form 42
will be used in NASA’s background investigations, Appel-
lants have standing to challenge Form 42’s distribution and
solicitation of private information, and the issues raised in
these challenges are ripe for review. The district court erred
by excluding Form 42 claims from its analysis of Appellants’
likelihood of success on the merits.
B. APA Claim
[5] Appellants first claim that Federal Appellees violated
the APA by imposing background investigations on contract
employees without any basis in executive order or statute. The
district court found that Congress gave NASA the authority to
7150 NELSON v. NASA
conduct such investigations in the Space Act of 1958, which
provides:
The [NASA] Administrator shall establish such
security requirements, restrictions, and safeguards as
he deems necessary in the interest of the national
security. The Administrator may arrange with the
Director of the Office of Personnel Management for
the conduct of such security or other personnel
investigations of the Administration’s officers,
employees, and consultants, and its contractors and
subcontractors and their officers and employees,
actual or prospective, as he deems appropriate . . . .
42 U.S.C. § 2455(a).
Appellants argue that the “security or other personnel
investigations” described in the second sentence of § 2455(a)
are examples of the “security requirements, restrictions, and
safeguards” described in the first sentence and therefore may
only be established “as . . . deem[ed] necessary in the interest
of the national security.” They then argue that this limiting
clause must be read in light of Cole v. Young, 351 U.S. 536(1956), where the Supreme Court interpreted a statute giving
certain government officials the power to summarily dismiss
employees “when deemed necessary in the interest of the
national security.” Id. at 538 (internal quotation marks omit-
ted). In Cole, the Court found it clear “that ‘national security’
was not used in the Act in an all-inclusive sense, but was
intended to refer only to the protection of ‘sensitive’ activi-
ties” and therefore held that “an employee can be dismissed
‘in the interest of the national security’ under the Act only if
he occupies a ‘sensitive’ position.” Id. at 551. Appellants
claim that, by using identical limiting language in the Space
Act so soon after Cole, Congress intended to authorize per-
sonnel investigations only of contractors in “sensitive” posi-
tions and not of the “low risk” contractors at issue in this case.
NELSON v. NASA 7151
[6] We need not resolve whether the reference to the “inter-
est of the national security” in § 2455(a) should be interpreted
in light of Cole, because we read this limiting language to
apply only to the “security requirements, restrictions, and
safeguards” described in the first sentence and not to the “per-
sonnel investigations” described in the second sentence. The
second sentence could plausibly be read as an example of the
“security requirements, restrictions, and safeguards”
described in the first sentence, but the statute’s legislative his-
tory strongly suggests that it was instead meant to be a sepa-
rate and distinct authorization of power. The Conference
Report describes the two sentences separately and notes that
the Senate version of the bill contained the second sentence
but not the first. Conf. Rep. No. 2166 (1958), as reprinted in
1958 U.S.C.C.A.N. 3160, 3190, 3197-98. This suggests that
§ 2455(a) provides two distinct authorizations, the latter of
which allows the NASA Administrator to arrange for “secur-
ity and other personnel investigations” of contractors “as he
deems appropriate,” regardless of whether these investiga-
tions are “necessary in the interest of the national security.”
Because the Space Act appears to grant NASA the statutory
authority to require the investigations here at issue, we agree
with the district court that Appellants are unlikely to succeed
on the merits of their APA claim.3
3
To the extent that NASA has authority to require drug tests for current
contractors, that authority is spelled out in the Civil Space Employee Test-
ing Act, codified at 42 U.S.C. § 2473c. Congress enacted the Testing Act
as part of the National Aeronautics & Space Administration Authorization
Act, Fiscal Year 1992, and not as part of the Space Act of 1958. With the
Testing Act, Congress gave NASA the power to administer a drug testing
program for those employees or contractors responsible for “safety-
sensitive, security, or national security functions.” Id. § 2473c(c)(1)-(2).
The “program shall provide for preemployment, reasonable suspicion, ran-
dom, and post-accident testing for use . . . of alcohol or a controlled sub-
stance.” Id. Moreover, the statute provides that any drug test “shall . . .
provide for the confidentiality of test results and medical information of
employees.” Id. § 2473c(f)(7).
7152 NELSON v. NASA
C. Fourth Amendment Claim
We also agree with the district court’s conclusion that
Appellants are unlikely to succeed on their Fourth Amend-
ment claims, because the government’s actions are not likely
to be deemed “searches” within the meaning of the Amend-
ment. An action to uncover information is generally consid-
ered a “search” if the target of the search has a “reasonable
expectation of privacy” in the information being sought, a
term of art meaning a “subjective expectation of privacy . . .
that society is prepared to recognize as reasonable.” United
States v. Diaz-Castaneda, 494 F.3d 1146, 1151 (9th Cir.
2007) (citing Katz v. United States, 389 U.S. 347, 361 (1967)
(Harlan, J., concurring)). One does not have a “reasonable
expectation of privacy” in one’s information for Fourth
Amendment purposes merely because that information is of a
“private” nature; instead, Fourth Amendment protection can
evaporate in any of several ways. See, e.g., United States v.
Miller, 425 U.S. 435, 443 (1976) (holding that there is no rea-
sonable expectation of privacy in bank records in part because
the information was voluntarily disclosed to the bank). To
succeed on their Fourth Amendment claim, therefore, Appel-
lants must demonstrate that either the Form 42 inquiries sent
to third parties or the SF 85 questionnaire itself violates a
“reasonable expectation of privacy” so as to be considered a
“search” within the meaning of the Amendment.
1. Form 42 Inquiries
[7] “What a person knowingly exposes to the public . . . is
not a subject of Fourth Amendment protection,” Katz v.
United States, 389 U.S. 347, 351 (1967); however, informa-
tion does not lose Fourth Amendment protection simply
because it is conveyed to another party. For example, in Katz,
FBI agents attached an electronic listening device to the out-
side of a public telephone booth and recorded the defendant
transmitting illegal betting information over the telephone. Id.
at 348. Even though the booth’s occupant had voluntarily con-
NELSON v. NASA 7153
veyed the information in the conversation to the party on the
other end of the line, the Court found that he was “surely enti-
tled to assume that the words he utters into the mouthpiece
w[ould] not be broadcast to the world,” so the covert surveil-
lance was considered a search within the meaning of the
Amendment. Id. at 352-53.
On the other hand, in United States v. White, the Supreme
Court held that the electronic surveillance of a conversation
between a defendant and a government informant did not con-
stitute a “search” for Fourth Amendment purposes. 401 U.S.
745, 754 (1971) (plurality). The Court acknowledged that, as
in Katz, the speaker likely expected the content of the conver-
sations to be kept private; however, it held as a bright-line
rule that the Fourth Amendment “affords no protection to ‘a
wrongdoer’s misplaced belief that a person to whom he vol-
untarily confides his wrongdoing will not reveal it.’ ” Id. at
749 (quoting Hoffa v. United States, 385 U.S. 293, 302
(1966)). In United States v. Miller, 425 U.S. 435 (1976), hold-
ing that the government could subpoena private bank records
without implicating the Fourth Amendment, the Court
extended the bright-line rule to all information knowingly
revealed to the government by third parties:
[T]he Fourth Amendment does not prohibit the
obtaining of information revealed to a third party and
conveyed by him to Government authorities, even if
the information is revealed on the assumption that it
will be used only for a limited purpose and the confi-
dence placed in the third party will not be betrayed.
Id. at 443.
[8] In the challenged background investigations, the gov-
ernment will send written Form 42 inquiries to the applicant’s
acquaintances. Through these inquiries, the third parties may
disclose highly personal information about the applicant. As
in White and Miller, the applicant presumably revealed this
7154 NELSON v. NASA
information to the third party with the understandable expec-
tation that this information would be kept confidential. None-
theless, these written inquiries appear to fit squarely under
Miller’s bright-line rule and therefore cannot be considered
“searches” under the Fourth Amendment.4
2. SF 85 Questionnaire
[9] The SF 85 questionnaire required of the applicant is
also unlikely to be considered a Fourth Amendment “search.”
Requiring an individual to answer questions may lead to the
forced disclosure of information that he or she reasonably
expects to keep private. Historically, however, when “the
objective is to obtain testimonial rather than physical evi-
dence, the relevant constitutional amendment is not the Fourth
but the Fifth.” Greenawalt v. Ind. Dep’t of Corr., 397 F.3d
587, 591 (7th Cir. 2005) (holding that a psychological exami-
nation required for continued government employment was
not a search under the Fourth Amendment).
As Judge Posner notes in Greenawalt, direct questioning
can potentially lead to a far greater invasion of privacy than
many of the physical examinations that have in the past been
considered Fourth Amendment “searches.” Id. at 589-90.
Nonetheless, applying the Fourth Amendment to such ques-
tioning would force the courts to analyze a wide range of
novel contexts (e.g., courtroom testimony, police witness
interviews, credit checks, and, as here, background checks)
under a complex doctrine, with its cumbersome warrant and
probable cause requirements and their myriad exceptions, that
was designed with completely different circumstances in
4
This analysis presupposes that the applicant voluntarily revealed the
information to the third party. For example, the Fourth Amendment could
still apply if the government actively used third parties to uncover private
information. See United States. v. Walther, 652 F.2d 788, 791 (9th Cir.
1981) (noting that the Fourth Amendment is implicated when “a private
party acts as an ‘instrument or agent’ of the state in effecting a search or
seizure.”).
NELSON v. NASA 7155
mind. Id. at 590-91. Moreover, declining to extend the Fourth
Amendment to direct questioning will by no means leave
individuals unprotected, as such contexts will remain gov-
erned by traditional Fifth and Sixth Amendment interrogation
rights, and the right to informational privacy described below.
See id. at 591-92.
[10] Because neither the written inquiries directed at third
parties nor the SF 85 questionnaire directed at the applicants
will likely be deemed “searches,” Appellants are unlikely to
succeed on their Fourth Amendment claims.
D. Informational Privacy Claim
Although the district court correctly found that Appellants
were unlikely to succeed on their APA and Fourth Amend-
ment claims, it significantly underestimated the likelihood
that Appellants would succeed on their informational privacy
claim. These constitutional errors stem in large part from the
court’s erroneous ripeness ruling; by limiting its analysis to
the SF 85 questionnaire, the court failed to consider the most
problematic aspect of the government’s investigation—the
open-ended Form 42 inquiries.
[11] We have repeatedly acknowledged that the Constitu-
tion protects an “individual interest in avoiding disclosure of
personal matters.” In re Crawford, 194 F.3d 954, 958 (9th
Cir. 1999). This interest covers a wide range of personal mat-
ters, including sexual activity, Thorne v. City of El Segundo,
726 F.2d 459 (9th Cir. 1983) (holding that questioning police
applicant about her prior sexual activity violated her right to
informational privacy), medical information, Norman-
Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1269
(9th Cir. 1998) (“The constitutionally protected privacy inter-
est in avoiding disclosure of personal matters clearly encom-
passes medical information and its confidentiality.”), and
financial matters, Crawford, 194 F.3d at 958 (agreeing that
public disclosure of social security numbers may implicate the
7156 NELSON v. NASA
right to informational privacy in “an era of rampant identity
theft”). If the government’s actions compel disclosure of pri-
vate information, it “has the burden of showing that its use of
the information would advance a legitimate state interest and
that its actions are narrowly tailored to meet the legitimate
interest.” Crawford, 194 F.3d at 959 (internal quotation marks
omitted). We must “balance the government’s interest in hav-
ing or using the information against the individual’s interest
in denying access,” Doe v. Att’y Gen., 941 F.2d 780, 796 (9th
Cir. 1991), weighing, among other things:
“the type of [information] requested, . . . the poten-
tial for harm in any subsequent nonconsensual dis-
closure, . . . the adequacy of safeguards to prevent
unauthorized disclosure, the degree of need for
access, and whether there is an express statutory
mandate, articulated public policy, or other recogniz-
able public interest militating towards access.”
Id. (quoting United States v. Westinghouse Elec. Corp., 638
F.2d 570, 578 (3d Cir. 1980)) (alteration in original).
Both the SF 85 questionnaire and the Form 42 written
inquiries require the disclosure of personal information and
each presents a ripe controversy. Therefore, whereas the dis-
trict court limited its analysis to the SF 85 questionnaire, we
consider the constitutionality of both aspects of the investiga-
tion in turn.
1. SF 85 Questionnaire
[12] Appellants concede that most of the questions on the
SF 85 form are unproblematic and do not implicate the consti-
tutional right to informational privacy. They do however chal-
lenge the constitutionality of one group of questions
concerning illegal drugs. The questionnaire asks the applicant:
In the last year, have you used, possessed, supplied,
or manufactured illegal drugs? . . . . If you answered
NELSON v. NASA 7157
“Yes,” provide information relating to the types of
substance(s), the nature of the activity, and any other
details relating to your involvement with illegal
drugs. Include any treatment or counseling received.
The form indicates that “[n]either your truthful response nor
information derived from your response will be used as evi-
dence against you in any subsequent criminal proceeding.”
The district court concluded that the requested information
implicated the right to informational privacy, but found that
there were “adequate safeguards in place [to deal with these]
sensitive questions.”
Other courts have been skeptical that questions concerning
illegal drug use—much less possession, supply, or
manufacture—would even implicate the right to informational
privacy. For example, in Mangels v. Pena, 789 F.2d 836 (10th
Cir. 1986), the Tenth Circuit held that the disclosure of fire-
fighters’ past illegal drug use did not violate their informa-
tional privacy rights. Id. at 839-40. The Court held that “[t]he
possession of contraband drugs does not implicate any aspect
of personal identity which, under prevailing precedent, is enti-
tled to constitutional protection. . . . Validly enacted drug laws
put citizens on notice that this realm is not a private one.” Id.
at 839 (internal citations omitted). In National Treasury
Employees’ Union v. U.S. Department of Treasury, 25 F.3d
237 (5th Cir. 1994), the Fifth Circuit considered a similar
form to the SF 85 questionnaire, with almost identical ques-
tions concerning illegal drugs, and rejected the applicants’
informational privacy claims. The Court raised similar con-
cerns to the Tenth Circuit:
Today’s society has made the bold and unequivocal
statement that illegal substance abuse will not be tol-
erated. The government declared an all-out war on
illegal drugs more than a decade ago. . . . Surely any-
one who works for the government has a diminished
expectation that his drug and alcohol abuse history
7158 NELSON v. NASA
can be kept secret, given that he works for the very
government that has declared war on substance
abuse.
Id. at 243. The Court also noted that the plaintiffs in that case
were all federal employees in either “High” or “Moderate”
risk “public trust” positions, and were thus acutely “aware of
[their] employer’s elevated expectations in [their] integrity
and performance.” Id. at 244.
Like the Tenth and Fifth Circuits, we are sensitive to the
government’s interest in uncovering and addressing illegal
substance abuse among its employees and contractors, given
the public stance it has taken against such abuse. This govern-
ment interest is undoubtedly relevant to the constitutional bal-
ancing inquiry: whether the forced disclosure “would advance
a legitimate state interest and [is] narrowly tailored to meet
the legitimate interest.” Crawford, 194 F.3d at 959. We are
less convinced, however, that the government’s interest
should inform the threshold question of whether requested
information is sufficiently personal to invoke the constitu-
tional right to privacy. We doubt that the government can
strip personal information of constitutional protection simply
by criminalizing the underlying conduct—instead, to force
disclosure of personal information, the government must at
least demonstrate that the disclosure furthers a legitimate state
interest. Drug dependance and abuse carries an enormous
stigma in our society and “is not generally disclosed by indi-
viduals to the public.” Id. at 958. If we had to reach the issue,
therefore, we would be inclined to agree with the district court
that SF 85’s drug questions reach sensitive issues that impli-
cate the constitutional right to informational privacy.
[13] We do not need to decide this issue, however, because
even if the question requiring disclosure of prior drug use,
possession, supply, and manufacture does implicate the pri-
vacy right, it is narrowly tailored to achieve the government’s
legitimate interest. As our sister circuits have lucidly
NELSON v. NASA 7159
explained, the federal government has taken a strong stance
in its war on illegal drugs, and this stance would be signifi-
cantly undermined if its own employees and contractors freely
ignored its laws. By requiring applicants to disclose whether
they have “used, possessed, supplied, or manufactured illegal
drugs” within the past year, and, if so, to explain the “nature
of the activity” and “any other details relating to [the appli-
cant’s] involvement with illegal drugs,” the government has
crafted a narrow inquiry designed to limit the disclosure of
personal information to that which is necessary to further the
government’s legitimate interest.
[14] The same cannot be said, however, for requiring appli-
cants to disclose “any treatment or counseling received” for
their drug problems. Information relating to medical treatment
and psychological counseling fall squarely within the domain
protected by the constitutional right to informational privacy.
See Norman-Bloodsaw, 135 F.3d at 1269; Doe, 941 F.2d at
796. The government has not suggested any legitimate inter-
est in requiring the disclosure of such information; indeed,
any treatment or counseling received for illegal drug use
would presumably lessen the government’s concerns regard-
ing the underlying activity. Because SF 85 appears to compel
disclosure of personal medical information for which the gov-
ernment has failed to demonstrate a legitimate state interest,
Appellants are likely to succeed on this—albeit narrow—
portion of their informational privacy challenge to SF 85.
2. Form 42 Inquiries
[15] The Form 42 written inquiries—omitted from the dis-
trict court’s analysis as a result of its erroneous ripeness
holding—are much more problematic. Form 42 solicits “any
adverse information” concerning “financial integrity,” “abuse
of alcohol and/or drugs,” “mental or emotional stability,”
“general behavior or conduct,” and “other matters.” These
open-ended questions are designed to elicit a wide range of
adverse, private information that “is not generally disclosed
7160 NELSON v. NASA
by individuals to the public” and therefore seemingly impli-
cate the right to informational privacy. Crawford, 194 F.3d at
958.5
The government suggests that even if the information dis-
closed in the investigation implicates the right to informa-
tional privacy, the scheme must be upheld because the
government has taken measures to keep the information from
being disclosed to the general public. Although the risk of
public disclosure is undoubtedly an important consideration in
our analysis, see Planned Parenthood of S. Ariz. v. Lawall,
307 F.3d 783, 790 (9th Cir. 2002), it is only one of many fac-
tors that we should consider, id. at 789-90 (“[T]he right to
5
The constitutional right to informational privacy is concerned with “the
individual interest in avoiding disclosure of personal matters.” In deter-
mining whether the right applies, our cases have emphasized the nature of
the information sought—in particular, whether it is sufficiently “personal”
to merit protection, see Crawford, 194 F.3d at 958; Doe, 941 F.2d at 796
—rather than on the manner in which the information is sought. The
highly personal information that the government seeks to uncover through
the Form 42 inquiries is protected by the right to privacy, whether it is
obtained from third parties or from the applicant directly.
In this respect, the right to informational privacy differs from the Fourth
Amendment, which, as a bright-line rule, “does not prohibit the obtaining
of information revealed to a third party and conveyed by him to Govern-
ment authorities.” Miller, 425 U.S. at 443. This principle has occasionally
been rephrased as a general holding “that a person has no legitimate
expectation of privacy in information he voluntarily turns over to third
parties.” Smith v. Maryland, 442 U.S. 735, 743-44 (1979). We think it is
clear, however, that the “legitimate expectation of privacy” described in
this context is a term of art used only to define a “search” under the Fourth
Amendment, and Miller and Smith do not preclude an informational priva-
cy challenge to government questioning of third parties about highly per-
sonal matters. If the constitutional right to informational privacy were
limited to cases that involved a Fourth Amendment “search,” the two
rights would be entirely redundant. Indeed, although the two doctrines
often overlap, see Norman-Bloodsaw, 135 F.3d at 1269, we have repeat-
edly found the right to informational privacy implicated in contexts that
did not involve a Fourth Amendment “search,” see, e.g., Thorne, 726 F.2d
at 468.
NELSON v. NASA 7161
‘informational privacy’ . . . applies both when an individual
chooses not to disclose highly sensitive information to the
government and when an individual seeks assurance that such
information will not be made public.”); Norman-Bloodsaw,
135 F.3d at 1269 (noting that a government action can violate
the right to privacy without disclosure to third parties); Doe,
941 F.2d at 796 (listing, as two factors among many, “ ‘the
potential for harm in any subsequent nonconsensual disclo-
sure [and] the adequacy of safeguards to prevent authorized
disclosure.’ ” (quoting Westinghouse Elec. Corp., 638 F.2d at
578). Therefore, although safeguards exist to help prevent dis-
closure of the applicants’ highly sensitive information, Fed-
eral Appellees must still demonstrate that the background
investigations are justified by legitimate state interests and
that Form 42’s questions are “narrowly tailored to meet those
legitimate interests.” Thorne, 726 F.2d at 469.
We agree with the government that it has several legitimate
reasons for investigating its contractors. NASA has an interest
in verifying its contractors’ identities to make sure that they
are who they say they are, and it has an interest in ensuring
the security of the JPL facility so as not to jeopardize the
costly investments housed therein. Appellants concede, as
they must, that these are legitimate government interests.
The government has failed to demonstrate, however, that
Form 42’s questions are “narrowly tailored” to meet these
legitimate interests. Initially, we note that although NASA has
a general interest in keeping the JPL facility secure, there is
no specific evidence in the record to suggest that any of the
“low risk” JPL personnel pose such a security risk; indeed,
NASA appears to designate as “moderate risk” any individual
who has the “opportunity to cause damage to a significant
NASA asset or influence the design or implementation [of] a
security mechanism designed to protect a significant NASA
asset.” More importantly, Form 42’s broad, open-ended ques-
tions appear to range far beyond the scope of the legitimate
state interests that the government has proposed. Asking for
7162 NELSON v. NASA
“any adverse information about this person’s employment,
residence, or activities” may solicit some information relevant
to the applicant’s identity or security risk, but there are no
safeguards in place to limit the disclosures to information rel-
evant to these interests. Instead, the form invites the recipient
to reveal any negative information of which he or she is
aware. It is difficult to see how the vague solicitation of
derogatory information concerning the applicant’s “general
behavior or conduct” and “other matters” could be narrowly
tailored to meet any legitimate need, much less the specific
interests that Federal Appellees have offered to justify the
new requirement.
[16] Finally, the context in which the written inquiries are
posed further supports Appellants’ claim. In Thorne v. City of
El Segundo, 726 F.2d 459 (9th Cir. 1983), we focused not
only on the private nature of questions asked, but also on the
lack of standards governing the inquiry. We held that ques-
tioning a female police applicant about her past sexual rela-
tions with another officer in the department violated her
constitutional right to informational privacy, id. at 468, find-
ing that many of the questions posed went beyond any rele-
vant lines of questioning, id. at 469-70. More importantly, we
noted that the city had not set any standards for inquiring
about the private information. Id. at 470. “When the state’s
questions directly intrude on the core of a person’s constitu-
tionally protected privacy and associational interests . . . , an
unbounded, standardless inquiry, even if founded upon a
legitimate state interest, cannot withstand the heightened scru-
tiny with which we must view the state’s action.” Id. In this
case, the government’s questions stem from SF 85’s
extremely broad authorization, allowing it “to obtain any
information” from any source, subject to other releases being
necessary only in some vague and unspecified contexts. Fed-
eral Appellees have steadfastly refused to provide any stan-
dards narrowly tailoring the investigations to the legitimate
interests they offer as justification. Given that Form 42’s
open-ended and highly private questions are authorized by
NELSON v. NASA 7163
this broad, standardless waiver and do not appear narrowly
tailored to any legitimate government interest, the district
court erred in finding that Appellants were unlikely to suc-
ceed on their informational privacy claim.
E. Balance of Hardships
[17] The balance of hardships tips sharply toward Appel-
lants, who face a stark choice—either violation of their consti-
tutional rights or loss of their jobs. The district court
erroneously concluded that Appellants will not suffer any
irreparable harm because they could be retroactively compen-
sated for any temporary denial of employment. It is true that
“monetary injury is not normally considered irreparable,” L.A.
Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d
1197, 1202 (9th Cir. 1980), and the JPL employees who
choose to give up their jobs may later be made whole finan-
cially if the policy is struck down. However, in the meantime,
there is a substantial risk that a number of employees will not
be able to finance such a principled position and so will be
coerced into submitting to the allegedly unconstitutional
NACI investigation. Unlike monetary injuries, constitutional
violations cannot be adequately remedied through damages
and therefore generally constitute irreparable harm. See Mon-
terey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997).
Morever, the loss of one’s job does not carry merely monetary
consequences; it carries emotional damages and stress, which
cannot be compensated by mere back payment of wages.
[18] On the other side of the balance, NASA has not dem-
onstrated any specific harm that it will face if it is enjoined
for the pendency of the adjudication from applying its broad
investigatory scheme to “low risk” JPL contract employees,
many of whom have worked at the laboratory for decades. As
Caltech argues, JPL has successfully functioned without any
background investigations since the first contract between
NASA and JPL in 1958, so granting injunctive relief would
make NASA no worse off than it has ever been. Moreover, an
7164 NELSON v. NASA
injunction in this case would not affect NASA’s ability to
investigate JPL personnel in “high risk” or “moderate risk”
positions, significantly undercutting any lingering security
fears. Finally, we note that NASA has taken years to imple-
ment NACI at JPL, a fact we construe as weakening any
urgency in imposing the investigations before Appellants’
claims are fully adjudicated on their merits.
III
Caltech separately argues that any injunctive relief should
not encompass it because, as a private actor, it cannot be held
liable for constitutional violations that arise from the
government-imposed background investigations. Caltech is
correct that there exists a “presumption that private conduct
does not constitute government action.” Sutton v. Providence
St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999). This
presumption is rebutted, however, when a sufficient nexus
“make[s] it fair to attribute liability to the private entity as a
governmental actor. Typically, the nexus consists of some
willful participation in a joint activity by the private entity
and the government.” Id. at 843 (emphasis added).
[19] Caltech notes that it initially opposed the new back-
ground investigations, which are conducted entirely by NASA
and other government agencies; therefore, it claims that the
investigations are not “joint activities” and Caltech is not a
“willful participant.” We have some sympathy for this argu-
ment, and if Caltech had done nothing more than abide by the
contract terms unilaterally imposed by NASA, we might
agree with its position. Here, however, the record is clear that
Caltech did do more—it established, on its own initiative, a
policy that JPL employees who failed to obtain federal identi-
fication badges would not simply be denied access to JPL,
they would be terminated entirely from Caltech’s employ-
ment. This decision does not necessarily render Caltech liable
as a governmental actor, but it raises serious questions as to
whether the university has in fact now become a willful and
NELSON v. NASA 7165
joint participant in NASA’s investigation program, even
though it was not so initially. Caltech’s threat to terminate
non-compliant employees is central to the harm Appellants
face and creates the coercive environment in which they must
choose between their jobs or their constitutional rights. More-
over, with the government enjoined, Caltech faces no inde-
pendent harm to itself, so the balance of hardships tips
overwhelmingly in Appellants’ favor. Therefore, we hold that
preliminary injunctive relief should apply both to Caltech and
to Federal Appellees.
IV
Appellants have raised serious questions as to the merits of
their informational privacy claim and the balance of hardships
tips sharply in their favor. The district court’s denial of the
preliminary injunction was based on errors of law and hence
was an abuse of discretion. Accordingly, we reverse and
remand with instructions to fashion preliminary injunctive
relief consistent with this opinion.
REVERSED and REMANDED.