Nelson v. Nasa ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT M. NELSON; et al.,  No. 07-56424
Plaintiffs-Appellants, D.C. No.
v. CV-07-05669-ODW
NATIONAL AERONAUTICS AND SPACE  Central District of
ADMINISTRATION, an Agency of the California,
United States; et al., Los Angeles
Defendants-Appellees.
 ORDER
Filed June 4, 2009
Before: David R. Thompson and Kim McLane Wardlaw,
Circuit Judges, and Edward C. Reed, Jr.,* District Judge.
Order;
Concurrence by Judge Wardlaw;
Dissent by Judge Callahan;
Dissent by Judge Kleinfeld;
Dissent by Chief Judge Kozinski
ORDER
Judges Thompson, Wardlaw, and Reed voted to deny
Appellees’ petition for panel rehearing. Judge Wardlaw voted
to deny Appellees’ petition for rehearing en banc, and Judges
Thompson and Reed so recommended.
The full court was advised of the petition for rehearing en
banc. A judge requested a vote on whether to rehear the mat-
*The Honorable Edward C. Reed, Jr., Senior United States District
Judge for the District of Nevada, sitting by designation.
6963
6964 NELSON v. NASA
ter en banc. The matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc
reconsideration. Fed. R. App. P. 35. Judges O’Scannlain and
Ikuta were recused.
The petition for rehearing en banc is denied.
IT IS SO ORDERED.
WARDLAW, Circuit Judge, concurring in the denial of
rehearing en banc, joined by PREGERSON, REINHARDT,
W. FLETCHER, FISHER, PAEZ, and BERZON Circuit
Judges:
Because the preliminary posture and the lack of an eviden-
tiary record prevent us from fully reviewing the merits of this
appeal, because the panel opinion creates no intra- or inter-
circuit split, and because the narrow holding does not present
an issue of exceptional importance, the active judges of our
court, in a vote that was not close,1 denied rehearing of this
case en banc. I concur.
This is an interlocutory appeal from the denial of a prelimi-
nary injunction sought by a class2 of long-term California
1
Compare Cooper v. Brown, No. 05-99004, 2009 WL 1272436, at *57
(9th Cir. May 11, 2009) (Reinhardt, J., dissenting from denial of rehearing
en banc).
2
The putative class consists of up to 9,000 employees—not merely the
28 class representatives referenced in Judge Callahan’s dissent. Class rep-
resentatives include preeminent research scientists who have coordinated
the Mars Exploration Rover Mission, served on the Jet Propulsion Labora-
tory (“JPL”) Senior Research Counsel, and led NASA’s New Millennium
Program and the Mars Pathfinder Mission. Class representatives also
include leading engineers who have been at the forefront of many recent
space missions, including the Mars Exploration Rovers Project, and the
Galileo, Messenger (Mercury), and Magellan (Venus) missions, as well as
NELSON v. NASA 6965
Institute of Technology (“Caltech”) employees, including sci-
entists, engineers, and administrative support personnel—all
classified by the National Aeronautics and Space Administra-
tion (“NASA”) as low risk employees.3 They oppose imple-
mentation of a new, wide-ranging, and highly intrusive
background check imposed as a condition of their continued
employment at Jet Propulsion Laboratory (“JPL”). Caltech
itself objected to the new requirement as “inappropriate.”
Reversing the district court’s denial of the preliminary injunc-
tion, we concluded that, as to the constitutional right of pri-
vacy claim,4 “serious questions going to the merits were
raised and the balance of harms tips sharply in [the plaintiff-
class’s] favor,” Walczak v. EPL Prolong, Inc., 198 F.3d 725,
731 (9th Cir. 1999),5 where the class faced the Hobson’s
JPL’s chief engineer for flight dynamics, the project system engineer for
the Kepler Space Observatory, and a lead principal engineer on the Con-
stellation Program. Their research and findings have been published
widely in scientific, peer-reviewed journals, and they have received hun-
dreds of prestigious awards from NASA and the research community. The
success of their scientific mission, which has been operating since 1958
without the new background checks, is renowned.
3
Low risk employment positions do not involve policymaking, major
program responsibility, public safety, duties demanding a significant
degree of public trust, or access to financial records with significant risk
of causing damage or realizing personal gain. See 5 C.F.R. § 731.106(b)
(defining the characteristics of positions at the high or moderate risk
levels). NASA itself designated members of the plaintiff class as low risk;
low risk employees comprise ninety-seven percent of JPL employees.
NASA’s designation of every position subject to a suitability determina-
tion “as a high, moderate, or low risk level as determined by the position’s
potential for adverse impact to the efficiency or integrity of the service”
is authorized by the U.S. Office of Personnel Management. See 5 C.F.R.
§ 731.106(a).
4
We affirmed the district court’s rejection of the class’s Administrative
Procedure Act and Fourth Amendment claims.
5
Because our decision issued in December 2007, we did not have the
benefit of the Supreme Court’s most recent formulation of the preliminary
injunction standard in Winter v. Natural Resources Defense Council, Inc.,
6966 NELSON v. NASA
choice of losing their jobs or submitting to an unprecedented
intrusion into their private lives for which the government
failed to advance a legitimate state interest. Nelson v. NASA
(Nelson II), 530 F.3d 865, 883 (9th Cir. 2008). “[S]ubsumed
in our analysis of the balance of hardship to the parties,” Gol-
den Gate Rest. Ass’n v. City & County of S.F., 512 F.3d 1112,
1126 (9th Cir. 2008), was our determination that this “injunc-
tion is in the public interest,” Winter v. Natural Res. Def.
Council, Inc., ___ U.S. ___, 129 S. Ct. 365, 374 (2008), since
it is indisputable that entry of the injunction “further[s] the
public’s interest in aiding the struggling local economy and
preventing job loss,” The Lands Council v. McNair, 537 F.3d
981, 1005 (9th Cir. 2008) (en banc).6 See Nelson II, 530 F.3d
___ U.S. ___, 129 S. Ct. 365, 374 (2008) (holding that a party requesting
preliminary injunctive relief must demonstrate “that he is likely to succeed
on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest”). Our result would be no different
under Winter, however, because we did not apply the “possibility of irrep-
arable injury” standard that the Winter Court found “too lenient.” Id. at
375. Instead, we concluded that the employees “face[d] a stark choice—
either violation of their constitutional rights or loss of their jobs.” Nelson
II, 530 F.3d at 881. “[C]onstitutional violations . . . generally constitute
irreparable harm” and “the loss of one’s job . . . carries emotional damages
and stress, which cannot be compensated by mere back payment of
wages.” Id. at 882. Irreparable harm, therefore, was not only likely, but
certain.
6
Thus, the public interest requires consideration of the fact that the Cali-
fornia unemployment rate reached 10.1 percent in January 2009 due to the
loss of 79,300 jobs, the largest unemployment increase in any state for the
month, see Regional and State Employment and Unemployment Summary,
U.S. Bureau of Labor Statistics 1, 3 (Mar. 11, 2009). Clearly, the public
interest in minimizing job loss in this difficult economic climate, The
Lands Council, 537 F.3d at 1005, weighs in favor of the injunction pend-
ing a merits determination. The loss of up to 9,000 jobs from one of Pasa-
dena’s largest employers would be particularly devastating in this
community, which has an estimated labor force of 77,200 people. See
Monthly Labor Force Data for Cities and Census Designated Places Feb-
ruary 2009, State of California Employment Development Department
(Mar. 20, 2009).
NELSON v. NASA 6967
at 881-82. A prior three-judge panel of our court had ruled
identically in issuing an injunction pending the merits hearing
of this appeal. Nelson v. NASA (Nelson I), 506 F.3d 713, 715
(9th Cir. 2007).
Judge Callahan writes that, “[u]ntil now, no court has held
that applicants have a constitutionally protected right to pri-
vacy in information disclosed by employment references.”
This is a misstatement of our panel’s holding. No “applicants”
are members of the putative class, only existing long-term
employees. Each class member, when hired, underwent exten-
sive background checks, including employment references.
The employees challenge now a newly proposed, free-
floating, wide-ranging inquiry with no standards, limits, or
guarantee of non-disclosure to third parties, for which the
government intends to coerce a “release” by threatening the
loss of their jobs. Contrary to Judge Callahan’s representation,
the newly proposed investigation is not limited to information
“voluntarily turn[ed] over to third parties.”7 Some of the infor-
mation sought from neighbors, landlords, employment super-
visors, and the like includes private sexual practices, sexual
orientation, and physical and psychological health issues, and
the government does not ask sources to limit their answers
only to information voluntarily shared by the subject person.
Judge Callahan also suggests that our opinion protects infor-
mation about drug treatment “in the face of a legitimate need
7
Even if it was, Judge Callahan’s contention misses the crucial point
that the right to informational privacy and Fourth Amendment rights are
not fully coextensive. See Nelson II, 530 F.3d at 880 n.5. In our opinion,
we noted that although in the Fourth Amendment context there is a general
principle “ ‘that a person has no legitimate expectation of privacy in infor-
mation he voluntarily turns over to third parties,’ ” id. (quoting Smith v.
Maryland, 442 U.S. 735, 743-44 (1979), and citing United States v. Miller,
425 U.S. 435, 443 (1976)), “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 privacy challenge to government questioning of third parties
about highly personal matters,” id.6968 NELSON v. NASA
by the employer to protect the safety and security of a facili-
ty.” The opinion does no such thing—rather, we specifically
noted that in this context, open-ended inquiries and questions
regarding drug treatment are not narrowly tailored to a legiti-
mate need to protect the facility. Nelson II, 530 F.3d at
880-81.
Our opinion is actually much narrower than Judge Callahan
would have her audience believe. Adhering to our precedent
in In re Crawford, 194 F.3d 954 (9th Cir. 1999) (holding that
public disclosure of Social Security numbers implicates the
right to informational privacy), Norman-Bloodsaw v. Law-
rence Berkeley Laboratory, 135 F.3d 1260 (9th Cir. 1998)
(holding that unauthorized employer testing for sensitive
medical information violates employees’ right to informa-
tional privacy), Doe v. Attorney General, 941 F.2d 780 (9th
Cir. 1991) (holding that an individual’s HIV-status is afforded
informational privacy protection and that the government may
seek and use such information only if its actions are narrowly
tailored to meet legitimate interests), and Thorne v. City of El
Segundo, 726 F.2d 459 (9th Cir. 1983) (holding that a poten-
tial employee of the state may not be required to disclose per-
sonal sexual matters to gain the benefits of state employment),
we concluded that only two aspects8 of the government inqui-
ries in the challenged Standard Form 85 (“SF 85”) question-
naire and Investigative Request for Personal Information
(“Form 42”) raised serious informational privacy concerns.
Nelson II, 530 F.3d at 879-81. After engaging in the requisite
delicate balancing, we reasoned that although the government
asserted several legitimate interests in investigating its con-
tract employees, it had failed to demonstrate that its inquiry
was narrowly tailored to meet those interests; further, the gov-
ernment asserted no legitimate interest to justify inquiries
8
The class also challenged the investigation as lacking in statutory
authority under the Administrative Procedure Act, and argued that all
aspects of the investigation, including the Form 42 request and the entire
SF 85 questionnaire, were unconstitutional under the Fourth Amendment.
NELSON v. NASA 6969
regarding drug treatment, as opposed to drug use. Id. We
reversed the district court only to the extent that the govern-
ment sought disclosure of “any treatment or counseling
received” at any time for drug problems, id. at 879, and
planned to engage in a free-ranging investigation of the most
private aspects of class members’ lives, id. at 880-81.
I.
The class challenges the limitless nature of the private
information the government now seeks and the potential uses
for this information. The newly instated NASA Procedural
Requirements incorporate the Personal Identity Verification
(“PIV”) standard promulgated by the Department of Com-
merce under Homeland Security Presidential Directive 12
(“HSPD-12”).9 These requirements mandate that every JPL
contract employee undergo a National Agency Check with
Inquiries (“NACI”) before he can obtain the new identifica-
tion badge required for access to JPL facilities. As part of a
NACI, JPL employees must submit SF 85, which seeks a host
of information subsequently checked against four government
databases, and sign an Authorization for Release of Informa-
tion which permits the government to collect information
about the employee. Nelson II, 530 F.3d at 870-71. The gov-
ernment collects information through Form 42.10 Id. at 871.
Once the information has been collected, NASA determines
whether an employee is “suitable” for continued access to its
facilities. See 5 C.F.R. § 731.103(a) (“[The U.S. Office of
Personnel Management] delegates to the heads of agencies
9
HSPD-12 was issued in response to identity fraud concerns raised by
the 9/11 Commission. It directed the U.S. Secretary of Commerce to
develop a uniform “standard for secure and reliable forms of identifica-
tion.” Directive on Policy for a Common Identification Standard for Fed-
eral Employees and Contractors, 2004 Pub. Papers 1765, 1765 (Aug. 27,
2004).
10
The information requested in SF 85 and Form 42 and the scope of the
Authorization for Release of Information are described in our opinion. See
Nelson II, 530 F.3d at 871.
6970 NELSON v. NASA
authority for making suitability determinations and taking
suitability actions.”). Because Caltech established a policy
that JPL employees who fail to obtain new identification
badges will be terminated, a negative suitability determination
results in the loss of employment with attendant harm to the
employee’s career.
There is nothing in the record to support Judge Callahan’s
statement that the government inquiry in Form 42 is limited
in any way to information that class members “voluntarily
turn over to third parties.” The record demonstrates the con-
trary: the Authorization for Release of Information authorizes
any investigator conducting a background check using Form
42 to obtain information not only from past employers, land-
lords, and educational institutions, but also from any other
sources of information that the investigator wants to consider.
And, contrary to Judge Kleinfeld’s suggestion, the release
specifically states that the investigation is not limited to these
sources. “[T]he form invites the recipient to reveal any nega-
tive information of which he or she is aware,” no matter how
that “information” fell into the hands of the source. Nelson II,
530 F.3d at 881. Judge Kleinfeld also belabors the usefulness
of open-ended questions when an employer interviews a
potential employee, but misses the distinction between that
necessary practice and the standardless and limitless mining
of highly personal and employment-irrelevant data from third
parties at issue here. There are serious questions as to whether
such open-ended inquiries are invasive of privacy rights; rea-
sonable reference checks and interviewing techniques, on the
other hand, remain within the government’s prerogative.
Moreover, the record suggests that the government will
seek private information unrelated to employment and use
such information to determine suitability for employment. At
multiple meetings about the new procedures, class members
specifically asked about the investigation’s scope and the
criteria analyzed to make the suitability determination. The
program directors refused to answer questions about scope
NELSON v. NASA 6971
and criteria. The only information class members were able to
glean about the proposed use of SF 85 and Form 42 and the
suitability determination came from a document accidentally
posted on the JPL internal HSPD-12 website between about
August 2, 2007, and September 11, 2007.
The document, entitled “Issue Characterization Chart,”
listed “sodomy,” “carnal knowledge,” “abusive language,”
“personality conflict,” “bad check,” “credit history,” “physi-
cal health issues,” and “mental, emotional, psychological or
psychiatric issues” as suitability issues. The Issue Character-
ization Chart further indicates that “[h]omosexuality, in and
of itself, while not a suitability issue, may be a security issue
and must be addressed completely, when indications are pres-
ent of possible susceptibility to coercion or blackmail”
(emphasis added). Far from the minimally intrusive questions
to former employers and named references that Judges Calla-
han and Kleinfeld portray, the record shows the very real
potential for intrusions into undisclosed private sexual, finan-
cial, and health matters and the use of those private matters
to determine job suitability. As our opinion states, “[t]he
record is vague as to the exact extent to and manner in which
the government will seek this information.” Id. at 871.
Judge Callahan represents that the safety and security of
federal facilities is implicated by enjoining the government
from a limitless investigation into the class members’ private
lives. In a similar vein, Judge Kleinfeld suggests that our
opinion “enjoin[ed] reasonable reference checks on applicants
for federal government functions” in a manner “likely to
impair national security.” In addition to the fact that this accu-
sation again mistakenly focuses on applicants, whereas our
opinion addressed existing employees, Judge Kleinfeld’s and
Judge Callahan’s claims are simply unsupportable. Our opin-
ion did not issue a blanket injunction against the use of Form
42—we held only that the use of this Form to investigate low
risk, existing contract employees raises serious legal ques-
tions. The government is obviously free to continue reason-
6972 NELSON v. NASA
able reference checks, and is even free to utilize Form 42
when the government’s legitimate interests in investigation
are sufficiently great and when the government adheres to
proper limiting standards that narrowly tailor its quest for
information. The fact that this Form may be frequently and
appropriately used in other contexts does not mean that it
would be proper here. Further, the opinion does not “forbid[ ]
the government from making inquiries,” as Judge Kleinfeld
suggests. Nor does it affect the government’s ability to con-
firm identity, take fingerprints, run criminal records checks,
or compel individuals to disclose prior drug use. It preliminar-
ily enjoins the government only from compelling the disclo-
sure of any and all drug counseling and treatment information
and from investigating without limits into areas of class mem-
bers’ lives unrelated to employment.
Judge Kleinfeld’s complaint that we failed to consider the
public interest in national security is similarly misguided. Our
explanation of the nature of plaintiffs’ low risk positions
which do not involve public safety or a significant risk for
causing damage, id. at 880-81, our careful analysis of the non-
sensitive nature of their work, id., our admonition that our
decision “would not affect NASA’s ability to investigate
[employees] in ‘high risk’ or ‘moderate risk’ positions,” id. at
882, and the notation that many successful years passed
before NASA decided to implement NACI,11 id., reflect our
reasoned decision that national security is not implicated by
the grant of a preliminary injunction. It is also worth noting
that throughout this litigation the government itself has never
argued the public interest in national security as a justification
for its proposed background investigation.
The JPL, a research laboratory run jointly by NASA and
11
Judge Kleinfeld misreads the record when he asserts that our injunc-
tion “stops the government from making the inquiries it has been making
for decades”—the government concedes that it sought to impose the wide-
ranging background check only as of 2007.
NELSON v. NASA 6973
Caltech, is not a vulnerable facility desperately in need of
stronger security measures. JPL is located approximately five
minutes to the north of our Pasadena courthouse off Interstate
210, and a large freeway sign directs the traveling public to
the facility. JPL operates as a university campus rather than
as a high-security government facility, encouraging students,
visiting scientists (often foreign nationals), and other mem-
bers of the public to enter and tour the facilities. JPL regularly
opens its doors to all members of the public. Tens of thou-
sands of visitors have unrestricted access to the lab with no
requirement that they present identification.
When visitors arrive at the campus, they encounter only
cursory random inspections of cars. Guards wave passenger
cars through and take a quick peek inside trucks and busses.
Drivers of trucks with chemicals and equipment park on cam-
pus while their identity is verified by presentation of a driv-
er’s license. Once a driver’s identity is checked, the truck
driver pulls right up to the buildings, a privilege enjoyed by
less than thirty percent of the permanently badged employees.
There are no metal detectors and no inspections of handbags.
While there are millions of dollars in taxpayer money
invested in this facility and its operations, any risk that may
exist derives from the complexity and unknown character of
the subjects of JPL’s exploration, not security concerns. JPL
protects expensive government equipment with Flight Project
Practices that govern every aspect of a mission’s design,
development, testing, and operations. These Practices require
all critical activities to be peer-reviewed and independently
validated. They are not affected by the issuance of new identi-
fication badges.
While the preliminary injunction remains in effect, the pub-
lic may rest assured that the class members, many of whom
have worked at JPL and Caltech for twenty to thirty years,
have undergone serious security checks, which the govern-
ment found sufficient to safeguard our national space effort
6974 NELSON v. NASA
up until two years ago when it first decided to impose its pro-
posed limitless inquiry. A temporary restriction against a stan-
dardless investigation of employment-irrelevant data will
have little to no impact on JPL, in part because of the security
measures already in effect.
JPL currently uses secure and reliable forms of identifica-
tion that comply with HSPD-12. HSPD-12 defines “secure
and reliable forms of identification” as identification that “(a)
is issued based on sound criteria for verifying an individual
employee’s identity; (b) is strongly resistant to identity fraud,
tampering, counterfeiting, and terrorist exploitation; (c) can
be rapidly authenticated electronically; and (d) is issued only
by providers whose reliability has been established by an offi-
cial accreditation process.” 2004 Pub. Papers at 1766. Every
contract employee entering the JPL facility must wear an
appropriate badge that includes his photograph, an employee
number, and a bar code. The “One NASA” badge, which
NASA began issuing in response to HSPD-12, requires per-
sonal information, two forms of approved identification, and
fingerprinting. The class does not challenge uniform identifi-
cation measures or the requirements for obtaining a “One
NASA” badge.
Judges Callahan and Kleinfeld fail to articulate how the
two narrow aspects of the additional investigation sought by
the government and temporarily enjoined impair national
security. Surely, whether a Caltech scientist had “carnal
knowledge,” a personality conflict, or used abusive language
at home would not impact our national security. Put another
way, the dissenters (other than Judge Kozinski) seem to be
suggesting that the government has an unlimited right to vio-
late the most fundamental privacy interests of its contract
employees because almost anything might affect national
security. At a minimum, this is a serious legal question. That
NASA has existed for more than fifty years without these
inquiries, see Nelson II, 530 F.3d at 871, that the challenged
program was implemented almost eight years after the gov-
NELSON v. NASA 6975
ernment determined it should have more complete screening
of contract employees, id., and that class members are long-
term employees of JPL who have previously undergone sig-
nificant security checks, suggest that remand was appropriate
to develop the record further and to allow class members to
pursue their claim on an orderly basis.
II.
Judge Callahan asserts that our opinion diverges from the
reasoning of two decisions by our sister circuits, National
Treasury Employees Union v. U.S. Department of Treasury,
25 F.3d 237 (5th Cir. 1994), and American Federation of
Government Employees v. Department of Housing and Urban
Development, 118 F.3d 786 (D.C. Cir. 1997). Judge Callahan
is incorrect. Both decisions are specifically grounded in the
diminished privacy interests of individuals in public trust
positions—positions not held by the low risk contract employ-
ees here.
In National Treasury, the Fifth Circuit recognized the con-
stitutional right to privacy, stating that “[t]he extent to which
an individual’s expectation of privacy in the employment con-
text is reasonable depends, in significant part, upon the
employee’s position and duties.” 25 F.3d at 243-44. The Fifth
Circuit emphasized that the plaintiffs, all of whom held posi-
tions at the high and moderate risk levels, were “public trust
employees.” Id. at 244. Public trust positions “involve policy-
making, major program responsibility, public safety and
health, law enforcement duties, fiduciary responsibilities or
other duties demanding a significant degree of public trust,
and positions involving access to or operation or control of
financial records, with a significant risk for causing damage
or realizing personal gain.” 5 C.F.R. § 731.106(b). Because
“public trust employees know that they have diminished
rights to withhold personal information that compromises the
right of the public to repose trust and confidence in them,” the
Fifth Circuit concluded that they must complete the Standard
6976 NELSON v. NASA
Form 85P, Questionnaire for Public Trust Positions (“SF
85P”). Nat’l Treasury, 25 F.3d at 244. The Fifth Circuit also
stated, “[w]e take pains to underscore the obvious: we are
determining rights of [plaintiffs] in their capacity as public
trust employees and certainly not in their role as ordinary pri-
vate citizens.” Id.In American Federation, the D.C. Circuit also considered
informational privacy in the context of public trust employ-
ees. 118 F.3d at 788. There, employees were found to be in
public trust positions because of their access to a database that
controlled $10 billion in annual government disbursements.
Id. The D.C. Circuit analyzed each of the challenged ques-
tions, as we did in our opinion, and concluded that the agency
provided “sufficiently important justifications for each item
on the questionnaires” in light of the employees’ diminished
expectation of privacy as public trust employees. Id. at 793.
The class members here are low risk and thus do not have
the diminished expectation of privacy of public trust employ-
ees. The class expressly excludes employees who have been
designated as moderate or high risk. Many class members
agreed to work for NASA with the understanding that they
would not be required to work on classified materials or to
obtain security clearances—precisely because they desired
that their work remain in the public domain. Avoiding classi-
fied materials allows these scientists to subject their work to
peer review, to collaborate with the best scientists worldwide,
and to publish their results.
Although the Fifth and D.C. Circuits recognized that one
factor that can diminish an individual’s privacy interest is
whether the information collected by the government is dis-
seminated publicly, Nat’l Treasury, 25 F.3d at 244; Am.
Fed’n, 118 F.3d at 793, neither one found that to be the dispo-
sitive factor. Each court held that constitutional interests were
not violated because the protections against the disclosure of
private information were combined with other important fac-
NELSON v. NASA 6977
tors, such as the diminished expectation of privacy by individ-
uals holding public trust positions. Nat’l Treasury, 25 F.3d at
244; Am. Fed’n, 118 F.3d at 794. Our opinion also recognizes
that “[a]lthough the risk of public disclosure is undoubtedly
an important consideration in our analysis, it is only one of
many factors that we should consider.” Nelson II, 530 F.3d at
880 (citation omitted). Moreover, plaintiffs have been
informed that the information will be disclosed to Caltech,
raising serious questions as to whether their privacy interest
is diminished by this factor.
Finally, both National Treasury and American Federation
were decided on a fully developed factual record that included
a reasoned decision of the district court. The evidentiary
record was critical to the courts’ decisions. For example, after
the district court held that an authorization similar to that in
SF 85 violated the plaintiffs’ constitutional right to informa-
tional privacy in American Federation, the D.C. Circuit
reversed based on a government representation “that the legit-
imate use of the release form is limited to verifying informa-
tion solicited by other parts of the form,” and a finding that
“the release authorizes the government to collect only infor-
mation ‘relevant’ to determining the fitness of an individual
for a public trust position.” Am. Fed’n, 118 F.3d at 794. In
contrast, here, the government “steadfastly refused to provide
any standards narrowly tailoring the investigation to the legiti-
mate interests they offer as justification,” failing to limit the
investigation to relevant information or the verification of
responses. Nelson II, 530 F.3d at 881.
III.
Chief Judge Kozinski’s dissent thoughtfully raises a num-
ber of considerations to be taken into account in shaping the
right of informational privacy. By asking a series of provoca-
tive questions about the doctrine, however, he only under-
scores our panel’s conclusions that serious questions were
raised justifying the preliminary injunction. See Walczak, 198
6978 NELSON v. NASA
F.3d at 731. Ultimately, I disagree with his conclusion that we
should have taken this case en banc to provide further guide-
posts towards resolving those questions. Erecting guideposts
on a moving playing field would prove futile. Only a fully
developed factual record, such as the one in National Trea-
sury or American Federation, will allow us to thoroughly con-
sider the nature of the privacy rights at issue and provide the
clarity Judge Kozinski seeks.
We recognized in our opinion the distinction Judge Kozin-
ski proposes between government collection and disclosure of
information. As previously noted, we stated that “[a]lthough
the risk of public disclosure is undoubtedly an important con-
sideration in our analysis, it is only one of many factors that
we should consider.” Nelson II, 530 F.3d at 880 (citation
omitted). It is not yet clear on this record, however, whether
the government intends to disclose the information it collects.
The class has specifically alleged that NASA will share the
information collected with Caltech and possibly with other
government agencies. Sharing this information with Caltech
and other agencies is a potential violation of the Privacy Act.
See 5 U.S.C. § 552a(b) (forbidding agency disclosure of
records “to any person, or to another agency, except pursuant
to a written request by, or with the prior written consent of,
the individual to whom the record pertains”). Moreover, if the
information is shared, Caltech is not precluded by the Privacy
Act from further disseminating it.
Judge Kozinski also distinguishes between disclosures that
the target may refuse and those imposed regardless of his con-
sent. I agree that during the application process for a new job,
disclosures may be refused simply by seeking other employ-
ment. In that context, requested disclosures may be inherently
less invasive. Here, however, we have long-term employees
suddenly forced to sign releases authorizing investigation into
every aspect of their private lives or lose their jobs. As a prac-
tical matter, given the current economic environment, the
unique nature of the work conducted at JPL, and the age and
NELSON v. NASA 6979
seniority of the plaintiff-employees, this is tantamount to a
deprivation of the ability to obtain any future employment.
Judge Kozinski’s third distinction—the difference between
protecting fundamental rights and protecting a free-standing
right not to have the world know bad things about you—
would also be addressed more precisely with further record
development. It appears, although it has yet to be conclusively
proven, that the government intends to pry into constitution-
ally protected private matters. The Issue Characterization
Chart suggests that sexual preference, sexual activity, medical
treatment, counseling, and personal financial matters are at
issue in the government’s investigation. The Supreme Court
has recognized a constitutional “interest in avoiding disclo-
sure of personal matters,” Whalen v. Roe, 429 U.S. 589,
591-93 (1977), and we and our sister circuits have defined
this right to include the very types of matters implicated by
the Issue Characterization Chart, see, e.g., Sterling v. Borough
of Minersville, 232 F.3d 190, 196 n.4 (3d Cir. 2000) (“While
we have not previously confronted whether forced disclosure
of one’s sexual orientation would be protected by the right to
privacy, we agree with other courts concluding that such
information is intrinsically private.”); Statharos v. N.Y. City
Taxi & Limousine Comm’n, 198 F.3d 317, 322-23 (2d Cir.
1999) (“[T]his Court has recognized the existence of a consti-
tutionally protected interest in the confidentiality of personal
financial information.”); Norman-Bloodsaw, 135 F.3d at 1269(“The constitutionally protected privacy interest in avoiding
disclosure of personal matters clearly encompasses medical
information and its confidentiality.”); Eastwood v. Dep’t of
Corr., 846 F.2d 627, 631 (10th Cir. 1988) (“This constitution-
ally protected right [to privacy] is implicated when an individ-
ual is forced to disclose information regarding personal sexual
matters.”); Thorne, 726 F.2d at 468 (“The interest [the plain-
tiff] raises in the privacy of her sexual activities are within the
zone protected by the constitution.”).12
12
Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998), the case cited by Judge
Kozinski to illustrate this third distinction, suggests that intimate details
6980 NELSON v. NASA
Similarly, the parties have yet to develop an evidentiary
record as to whether the government intends to “dig into
records” or simply to contact third parties. The government
states that it would need another release to obtain medical
records. However, the Authorization for Release of Informa-
tion allows the government “to obtain any information relat-
ing to [a class member’s] activities from . . . other sources of
information” and to seek information that “is not limited to”
job-related activities. The Issue Characterization Chart sug-
gests that the government may pursue the more invasive of
these two approaches. There is no evidence of what standards,
if any, the government intends to apply.
Further record development is also required to determine
whether the government is in fact acting as any other “pri-
vate” employer. By unilaterally imposing the new require-
ments upon Caltech in the interest of securing federal
facilities, the government is using special powers that are
available to it only in its sovereign capacity. Private contract-
ing parties would not have the ability to insist upon one-sided
contract modifications that result in termination of a partner’s
employees of twenty or thirty years. Moreover, it appears that
NASA—not Caltech—will make the suitability determina-
tion, but again, the class has not yet had the opportunity to
submit evidence on this point.
We must rule on the record we have before us. Our ability
to “clear the brush” will be enhanced when the record is fully
developed. Even the Supreme Court would find it a much
surer task to outline the contours of the doctrine of informa-
tional privacy with some of Judge Kozinski’s questions actu-
ally answered. Therefore, I concur in the denial of en banc
rehearing, and await the next round.
about sexuality and choices about sex are the type of private matters which
implicate the constitutional right to privacy. Id. at 685. How these private
matters play into this dispute requires further factual development.
NELSON v. NASA 6981
CALLAHAN, Circuit Judge, with whom KLEINFELD, TAL-
LMAN and BEA, Circuit Judges, join, dissenting from the
denial of rehearing en banc:
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. With an annual
budget of over $1.6 billion, NASA’s Jet Propulsion Labora-
tory (“JPL”) is the foremost leader in exploring the solar sys-
tem’s known planets with robotic spacecraft. As the lead
center for NASA’s deep space robotics and deep space com-
munications missions, the science and technology developed
at JPL for each mission entails extensive planning, research,
and development, spanning years and costing taxpayers hun-
dreds of millions of dollars. The technology developed at JPL
features some of the most sensitive and expensive equipment
owned by NASA, which involves a myriad of scientific, med-
ical, industrial, commercial, and military uses.
Plaintiffs, twenty-eight scientists and engineers employed
as contractors at JPL, object to NASA’s requirement that they
undergo the same personnel investigation for non-sensitive
contract employees as those already in existence for all civil
service employees in non-sensitive positions. Although the
district court denied a motion for a preliminary injunction
designed to prevent these personnel investigations from tak-
ing place, a panel of this court reversed, concluding that the
district court’s decision was based on legal errors. See Nelson
v. NASA, 530 F.3d 865 (9th Cir. 2008). The panel held that
a questionnaire asking applicants about treatment or counsel-
ing received for illegal drug use within the past year and a
related written inquiry sent to references implicate the consti-
tutional right to informational privacy. See id. at 879. Apply-
ing intermediate scrutiny, the panel held that the government
did not have a legitimate state interest in asking applicants to
disclose their drug treatment or counseling history, id., and
that the written inquiry was not narrowly tailored to serve the
6982 NELSON v. NASA
government’s legitimate interests related to the security of
JPL. Id. at 879-81.
I dissent from the denial of rehearing en banc because the
panel’s opinion constitutes an unprecedented expansion of the
constitutional right to informational privacy. Further, assum-
ing that the panel’s opinion correctly assesses the scope of
this right, it does not properly apply intermediate scrutiny.
This expansion of constitutional privacy rights reaches well
beyond this case and may undermine personnel background
investigations performed daily by federal, state, and local
governments.
Until now, no court had held that applicants have a consti-
tutionally protected right to privacy in information disclosed
by employment references. The Supreme Court has consis-
tently held that individuals do not have a legitimate expecta-
tion of privacy in information they voluntarily turn over to
third parties. See, e.g., Smith v. Maryland, 442 U.S. 735, 743-
44 (1979); United States v. Miller, 425 U.S. 435, 442-44
(1976). Similarly, no court had previously held that a govern-
ment employee has a constitutionally protected right to pri-
vacy to prevent the disclosure of treatment or counseling
received for illegal drug use in the face of a legitimate need
by the employer to protect the safety and security of a facility.
Cf. Mangels v. Pena, 789 F.2d 836, 839 (10th Cir. 1986)
(finding that disclosure of drug use cannot violate constitu-
tional right to informational privacy). Thus, the panel’s opin-
ion effects an unwarranted extension of the constitutional
right to informational privacy.
Even assuming that a constitutional right to information
privacy is implicated here, the panel fails to engage in the req-
uisite “delicate balancing” of plaintiffs’ privacy rights and
NASA’s legitimate need for information ensuring that those
it trusts with access to JPL do not pose an unacceptable safety
and security risk. The panel’s opinion sets our circuit apart
from the District of Columbia Circuit and Fifth Circuit, both
NELSON v. NASA 6983
of which have rejected privacy-based challenges to back-
ground checks similar to, or more intrusive than, the one here.
See Am. Fed’n of Gov’t Employees v. Dep’t of Hous. & Urban
Dev., 118 F.3d 786 (D.C. Cir. 1997); Nat’l Treasury Employ-
ees Union v. U.S. Dep’t of Treasury, 25 F.3d 237 (5th Cir.
1994). These circuits emphasized that the information to be
disclosed to the government in those cases would not be dis-
closed to the public; indeed, the D.C. Circuit recognized that
even if a constitutional right to informational privacy is impli-
cated, the Privacy Act, 5 U.S.C. § 552a(b), adequately safe-
guards against public disclosure.
I. Factual Background
A. Work conducted at the JPL facilities
JPL is a NASA facility that the California Institute of Tech-
nology (“Caltech”) operates pursuant to a contract with
NASA, and its facilities are an integral part of the nation’s
space program. JPL is the lead center for NASA’s deep space
robotics and deep space communications missions, which
require broad access to many NASA physical and logical
facilities. These missions entail “extensive and detailed paral-
lel planning, research, and development, often spanning years,
scores of persons, and hundreds of millions of taxpayer dol-
lars.” JPL’s discoveries have provided new insights into
studies of the Earth, its atmosphere, climate, oceans, geology,
and the biosphere; created the most accurate topographic map
of the Earth; provided insight into global climate and ozone
depletion; launched an oceanographic satellite to provide new
details about the ocean seafloor; and provided space-based
operational, communication, and information processing for
the Defense Department. JPL operates a number of high pro-
file projects including the Phoenix Mars Lander Mission, the
Mars Exploration Rovers Mission, the Cassini Equinox Mis-
sion to Saturn, and the Voyager Mission to Jupiter, Saturn and
beyond. The command center for the Mars Rovers, the Space
Flight Operations Center for JPL missions, and JPL’s Space
6984 NELSON v. NASA
Craft Assembly building are located on the JPL campus. JPL
also partially manages the Deep Space Network, which is
responsible for monitoring and communicating with numer-
ous satellites and other space missions, and is involved in
other highly confidential projects.
All positions at JPL, from administrative support to engi-
neers, scientists, and JPL’s Director, are filled by contract
employees.1 Plaintiffs are scientists and engineers employed
in some of the most important positions at JPL, including the
remote operator of the Spirit and Opportunity Rovers that
explore the surface of Mars and a navigation team member for
the Phoenix Mars Lander Mission.
B. Implementation of Homeland Security Presidential
Directive 12
The 9/11 Commission found that “[a]ll but one of the 9/11
hijackers acquired some form of U.S. identification document,
some by fraud,” and recommended that the federal govern-
ment set standards for the issuance of identification because
identification fraud is a concern at “vulnerable facilities.” THE
9/11 COMMISSION REPORT 390 (2004). On August 27, 2004, the
President of the United States issued Homeland Security Pres-
idential Directive 12 (“HSPD-12”) in response to security
concerns identified by the 9/11 Commission Report and man-
dated that the Commerce Department develop a uniform fed-
eral standard, applicable to federal employees and contractors
alike, for secure and reliable forms of identification. The
order emphasized that the Commerce Department should act
to eliminate the “[w]ide variations in the quality and security
of forms of identification used to gain access to secure Fed-
eral and other facilities where there is potential for terrorist
attacks . . . .” HSPD-12 ¶ 1.
1
Caltech has filled JPL positions with about 5,000 of its own employees
and with over 4,000 “affiliates” and contractors.
NELSON v. NASA 6985
Acting pursuant to this directive, the Commerce Depart-
ment promulgated Federal Information Processing Standards
(“FIPS”) 201 and 201-1, which required security measures for
contract employees commensurate with those applicable to
comparable federal employees. FIPS 201-1 sets forth a stan-
dard for “identification issued by Federal departments and
agencies to Federal employees and contractors (including
contractor employees) for gaining physical access to
federally-controlled facilities and logical access to Federally
controlled information systems.”
Since 1953, federal civil service employees have been sub-
ject to mandatory background investigations, with the scope
varying based on the potential for adverse security conse-
quences associated with a particular position. See Exec. Order
No. 10,450, 18 Fed. Reg. 2489 (Apr. 29, 1953), reprinted as
amended in 5 U.S.C. § 7311 (2007). Thus, for over fifty
years, Executive Order 10,450 has required that “in no event
shall the investigation [of civil service employees] include
less than a national agency check (including a check of the
fingerprint files of the Federal Bureau of Investigation), and
written inquiries to appropriate local law-enforcement agen-
cies, former employers and supervisors, references, and
schools attended by the person.” Id. § 3(a). Now, under FIPS
201-1, federal contractors in non-sensitive positions must
meet these same minimum security guidelines.
In 2001, before the promulgation of FIPS 201, NASA con-
ducted an internal review of contractor security requirements
and concluded that the failure of contractors to undergo back-
ground checks posed a vulnerability. NASA, acting pursuant
to its statutory authority under the National Aeronautics and
Space Act of 1958 (the “Space Act”) to conduct “personnel
investigations,” revised NASA Procedural Requirement
(“NPR”) 1600.1, to require application of security require-
ments for contract employees parallel to those of federal
employees. On November 8, 2005, NASA updated NPR
1600.1 to incorporate FIPS 201 and require that all low risk
6986 NELSON v. NASA
contractors be subject to a National Agency Check with
Inquiries (“NACI”) prior to the issuance of permanent NASA
photo-identification. NASA explained that these requirements
would “assist NASA Centers and component facilities in exe-
cuting the NASA security program to protect people, prop-
erty, and information” by establishing “security program
standards and specifications necessary to achieve Agency-
wide security program consistency and uniformity.” NPR
1600.1, § P.1.
Meanwhile, on August 5, 2005, the Office of Management
and Budget (“OMB”) provided guidance on the implementa-
tion of HSPD-12, requiring agencies “develop a plan and
begin the required background investigations for all current
contractors who do not have a successfully adjudicated inves-
tigation on record . . . no later than October 27, 2007.” Memo-
randum from OMB on Implementation of Homeland Sec.
Presidential Directive (HSPD) 12 — Policy for a Common
Identification Standard for Fed. Employees and Contractors 6
(Aug. 5, 2005). OMB stated that the completion of a NACI
would be a prerequisite to the issuance of any identification.
Id. at 5. Across all NASA facilities, over 57,000 individuals
are subject to these new requirements, over 46,000 had
applied as of August 31, 2007, and approximately 39,000
NASA contractors had completed the background investiga-
tion as of September 21, 2007.
C. The SF-85 Questionnaire and the Form 42 inquiries
The NACI requires the completion of a SF-85 Question-
naire, which asks the applicant to answer basic questions
regarding citizenship, previous residences over the past five
years, educational background, employment history over the
past five years, selective service record, military history, and
illegal drug use over the past year.2 The panel took issue with
Question #14, which asks:
2
The SF-85 also includes an “Authorization for Release of Informa-
tion,” which may be used only for purposes of the SF-85 and is limited
by the Privacy Act.
NELSON v. NASA 6987
In the last year, have you used, possessed, supplied,
or manufactured illegal drugs? When used without a
prescription, illegal drugs include marijuana,
cocaine, hashish, narcotics (opium, morphine,
codeine, heroin, etc.), stimulants (cocaine, amphet-
amines, etc.), depressants (barbiturates, methaqua-
lone, tranquilizers, etc.), hallucinogenics (LSD, PCP,
etc.). (NOTE: Neither your truthful response nor
information derived from your response will be used
as evidence against you in any subsequent criminal
proceeding.)
If you answered “Yes,” provide information relating
to the types of substance(s), the nature of the activ-
ity, and any other details relating to your involve-
ment with illegal drugs. Include any treatment or
counseling received.
The SF-85 also asks for three references who know the
applicant well. Form 42 written inquiries are then sent to edu-
cational institutions, former employers, landlords, and the
designated references in order to verify the information on the
SF-85 and confirm the applicant’s trustworthiness and com-
pliance with the law. Question #7 on Form 42 asks references
to indicate either “Yes” or “No” as to whether they “have any
adverse information about this person’s employment, resi-
dence or activities concerning:” “Violations of the Law,” “Fi-
nancial Integrity,” “Abuse of Alcohol and/or Drugs,” “Mental
or Emotional Stability,” “General Behavior or Conduct,” or
“Other Matters.” References are then asked whether they
“wish to discuss the adverse information [they] have.” If so,
they can provide “additional information which [they] feel
may have a bearing on this person’s suitability for govern-
ment employment or a security clearance. This space may be
used for derogatory as well as positive information.” Form 42
written inquiries are sent to roughly 980,000 recipients annu-
ally. 70 Fed. Reg. 61,320 (Oct. 21, 2005).
6988 NELSON v. NASA
D. Procedural History
Plaintiffs filed suit on August 30, 2007, and subsequently
moved for a preliminary injunction. The district court denied
the plaintiffs’ motion on a number of grounds, rejecting the
plaintiffs’ claims that NASA lacked the statutory authority to
conduct these investigations, and that the NACI violated
plaintiffs’ informational privacy rights. The district court
found that the NACI served a legitimate governmental inter-
est, i.e., to enhance security at federal facilities. Finding the
NACI narrowly tailored with adequate safeguards in place,
the court concluded that the government must be given some
leeway in conducting its investigation to verify that applicants
are not connected to activities that pose a security threat.
Plaintiffs filed an emergency motion for a stay of the dis-
trict court’s order. A panel of this court granted a temporary
stay pending appeal. Nelson v. NASA, 506 F.3d 713 (9th Cir.
2007). Following an expedited briefing schedule and argu-
ment, a merits panel held that the district court abused its dis-
cretion and reversed the denial of the preliminary injunction.
Nelson v. NASA, 512 F.3d 1134 (9th Cir. 2008).
Subsequently, the panel vacated its opinion and filed a
superseding opinion. Nelson v. NASA, 530 F.3d 865 (9th Cir.
2008) (“Nelson II“). The panel’s opinion concludes that “the
Space Act appears to grant NASA the statutory authority to
require the [background] investigations,” id. at 875, and that
the portion of SF-85’s Question #14 requiring disclosure of
prior drug use, possession, supply, and manufacture does not
violate the plaintiffs’ constitutional right to informational pri-
vacy. Id. at 878-79. However, the panel held that the portion
of SF-85’s Question #14 requiring applicants to disclose “any
treatment or counseling received” for illegal drug use, id. at
879, and Form 42’s written inquiries violate the plaintiffs’
constitutional right to informational privacy. Id. at 879-81.
Accordingly, the panel concluded that “[t]he district court’s
denial of the preliminary injunction was based on errors of
NELSON v. NASA 6989
law and hence was an abuse of discretion” and ordered the
district court to issue an injunction. Id. at 883.
II. Discussion
A. The panel’s expansion of the constitutional right to
informational privacy is unprecedented
While the Supreme Court has never clearly addressed
whether there is a constitutional right of privacy in the non-
disclosure of personal information, see Nixon v. Adm’r of
Gen. Servs., 433 U.S. 425 (1977); Whalen v. Roe, 429 U.S.
589, 605-06 (1977), this circuit — along with a majority of
other circuits — has found a limited right to informational pri-
vacy.3 See In re Crawford, 194 F.3d 954, 958 (9th Cir. 1999).
We have said that constitutionally protected privacy interests
include “avoiding disclosure of personal matters” and an “in-
terest in independence in making certain kinds of important
decisions.” Id. (citations omitted). “The right to informational
privacy, however, is not absolute; rather, it is a conditional
right which may be infringed upon a showing of proper gov-
ernmental interest.” Id. at 959 (internal quotation marks and
citation omitted). Where a constitutional right to informa-
tional privacy is implicated, we apply intermediate scrutiny,
which requires the government to show that “its use of the
information would advance a legitimate state interest and that
its actions are narrowly tailored to meet the legitimate inter-
est.” Id. (internal quotation marks and citation omitted).
3
The Sixth Circuit appears to be the only circuit to reject this view. See
Cutshall v. Sundquist, 193 F.3d 466, 481 (6th Cir. 1999). In addition, rec-
ognizing that it was not writing on a “blank slate” because earlier deci-
sions indicated that such a right existed, the District of Columbia Circuit
has expressed “grave doubts” as to the existence of a federal right of con-
fidentiality. See Am. Fed’n of Gov’t Employees, 118 F.3d at 791. The First
Circuit has similarly expressed concern, but declined to address the issue.
See Borucki v. Ryan, 827 F.2d 836, 841-42 (1st Cir. 1987).
6990 NELSON v. NASA
For example, we have held that an employer’s non-
consensual pre-employment blood testing for syphilis, sickle
cell genetic trait, and pregnancy implicated a constitutionally
protected privacy interest in avoiding disclosure of personal,
confidential medical information. See Norman-Bloodsaw v.
Lawrence Berkeley Lab., 135 F.3d 1260, 1269-70 (9th Cir.
1998). We have also held that a physician has a right to pri-
vacy in revealing whether he or she has AIDS to prospective
patients. See Doe v. Att’y Gen., 941 F.2d 780, 796 (9th Cir.
1991). Further, we have held that a female minor has a pri-
vacy interest in avoiding disclosure of the fact that she is
pregnant as part of a judicial bypass proceeding used as an
alternative to parental consent. See Planned Parenthood of S.
Ariz. v. Lawall, 307 F.3d 783, 789-90 (9th Cir. 2002). We
have also stated that questions during a polygraph given to a
police officer applicant asking about a possible abortion and
the identity of her sexual partners implicated this privacy
right. See Thorne v. City of El Segundo, 726 F.2d 459, 468
(9th Cir. 1983). And, we have held that a constitutional right
of informational privacy may extend to the indiscriminate
public disclosure of social security numbers out of a fear of
identity theft. See In re Crawford, 194 F.3d at 958. Never
before, however, has a court concluded that a government
worker employed in a secure facility has a constitutional right
of privacy to prevent the government from inquiring into
whether that employee has received drug treatment within the
past year or to prevent the government from sending a ques-
tionnaire to references in order to verify the veracity of the
employee.
1. There is no expectation of privacy in information
disclosed by a designated reference responding to
a questionnaire
The panel’s opinion concludes that individuals have a con-
stitutionally protected right to privacy in information dis-
closed to third-party employment references. No other court
has held as much, and for good reason — the Supreme Court
NELSON v. NASA 6991
“consistently has held that a person has no legitimate expecta-
tion of privacy in information he voluntarily turns over to
third parties.” Smith, 442 U.S. at 743-44 (citing Miller, 425
U.S. at 442-44; Couch v. United States, 409 U.S. 322, 335-36
(1973); United States v. White, 401 U.S. 745, 752 (1971) (plu-
rality opinion); Hoffa v. United States, 385 U.S. 293, 302
(1966); Lopez v. United States, 373 U.S. 427 (1963)); see also
SEC v. O’Brien, 467 U.S. 735, 743 (1984) (same). For exam-
ple, the Miller Court held that a bank depositor did not have
an expectation of privacy in financial information that he vol-
untarily turned over to banks and their employees in the nor-
mal course of business. The Court explained:
The depositor takes the risk, in revealing his
affairs to another, that the information will be con-
veyed by that person to the Government. This Court
has held repeatedly that the 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 pur-
pose and the confidence placed in the third party will
not be betrayed.
425 U.S. at 443 (emphasis added and citations omitted).
Absent some privilege (e.g., attorney-client, physician-patient,
priest-penitent, marital, etc.), an applicant does not have an
expectation of privacy to information disclosed by a refer-
ence.
The panel concludes that Fourth Amendment case law
defining whether an individual has an expectation of privacy
over information that he has already disseminated to the pub-
lic is not the proper focus in the evaluation of information pri-
vacy rights and contends that, instead, we should focus on the
general nature of the information sought. See Nelson II, 530
F.3d at 880 n.5. Although I agree with the panel that the con-
stitutional right to informational privacy is not limited to
6992 NELSON v. NASA
Fourth Amendment searches, see, e.g., Thorne, 726 F.2d at
468 (questions during a polygraph to a police applicant), I dis-
agree with the suggestion that whether an individual has an
expectation of privacy under a constitutional right to informa-
tional privacy is not informed by Supreme Court case law
interpreting an expectation of privacy under the Fourth
Amendment. In fact, one of the Supreme Court’s first deci-
sions recognizing a constitutional right to informational pri-
vacy specifically cited to Fourth Amendment case law in
defining this right. See Nixon, 433 U.S. at 457-58 (citing Katz
v. United States, 389 U.S. 347, 351-53 (1967), in evaluating
whether President Nixon had a legitimate expectation of pri-
vacy over presidential papers and tape recordings).
The panel’s expansion of the constitutional right to privacy
and what constitutes a legitimate expectation of privacy is
unprecedented. The Supreme Court has planted a set of
“guideposts for responsible decisionmaking” concerning lim-
ited fundamental rights “deeply rooted in this Nation’s history
and tradition” in an attempt “to rein in the subjective elements
that are necessarily present in due-process judicial review.”
Washington v. Glucksberg, 521 U.S. 702, 720-22 (1997) (cita-
tions and quotation marks omitted). “[I]n addition to the spe-
cific freedoms protected by the Bill of Rights, the ‘liberty’
specially protected by the Due Process Clause includes the
rights to marry, to have children, to direct the education and
upbringing of one’s children, to marital privacy, to use contra-
ception, to bodily integrity, and to abortion.” Id. at 720 (cita-
tions omitted); see also Thorne, 726 F.2d at 468 (stating that
informational privacy claims must fall within the zone pro-
tected by the constitution). “[E]stablishing a threshold
requirement . . . avoids the need for complex balancing of
competing interests in every case.” Glucksberg, 521 U.S. at
722. The panel’s opinion expands the right to informational
privacy by elevating personnel investigations to the realm of
constitutional protection.
The panel’s opinion opens the doors to lawsuits against
employers who perform standard reference checks to ensure
NELSON v. NASA 6993
that applicants are suitable candidates for employment. In an
area where States have sought measures to promote the free
flow of information, see, e.g., Noel v. River Hills Wilsons,
Inc., 7 Cal. Rptr. 3d 216, 220-21 (Ct. App. 2003) (recognizing
that a California state statute extending a conditional privilege
against defamatory statements applies in the employment con-
text), the panel’s opinion will have the opposite effect.
The panel’s opinion also fails to adhere to the Supreme
Court’s recent admonition that there is “a crucial difference,
with respect to constitutional analysis, between the govern-
ment exercising ‘the power to regulate or license, as law-
maker,’ and the government acting ‘as proprietor, to manage
[its] internal operation.’ ” Engquist v. Or. Dep’t of Agric., 128
S. Ct. 2146, 2151 (2008) (quoting Cafeteria & Rest. Workers
v. McElroy, 367 U.S. 886, 896 (1961) (rejecting Fifth Amend-
ment due process claim of civilian contractor summarily
denied access to military facility for security reasons)). As the
Court stated in Engquist, “in striking the appropriate balance”
between employee rights and the government’s needs as an
employer, courts should “consider whether the asserted
employee right implicates the basic concerns of the relevant
constitutional provision, or whether the claimed right can
more readily give way to the requirements of the government
as employer.” Id. at 2152.
The constitutional right to informational privacy allows
individuals to safeguard certain private information — like
the fact that they have had an abortion or have contracted
AIDS — and ensures that those wishing to keep such infor-
mation from the eyes and ears of others can do so. However,
those individuals that disclose such information to people like
their landlords or employers lack any expectation that such
information will be kept private. For this reason, plaintiffs
have no expectation of privacy with respect to the Form 42
written inquiries.
6994 NELSON v. NASA
2. There is no expectation of privacy for prior drug
treatment or counseling when seeking employ-
ment with the government
The panel’s opinion recognizes that the constitutional right
to informational privacy does not protect an applicant from
having to disclose to the government in a background investi-
gation whether they have used, possessed, supplied, or manu-
factured illegal drugs within the past year. Nelson II, 530 F.3d
at 878-79. However, the panel maintains that the plaintiffs are
likely to succeed on their informational privacy challenge to
a follow-up question regarding the disclosure of “any treat-
ment or counseling received” for illegal drug use once an
applicant acknowledges involvement with illegal drugs in the
past year. Id. at 879.
The panel’s position is predicated on the assertion that
“[i]nformation relating to medical treatment and psychologi-
cal counseling fall squarely within the domain protected by
the constitutional right to informational privacy.” Id. (citing
Norman-Bloodsaw, 135 F.3d at 1269, and Doe, 941 F.2d at
796). However, the authority the panel cites — Norman-
Bloodsaw and Doe — respectively deal with the “highly pri-
vate and sensitive medical and genetic information” from
non-consensual pre-employment blood testing for syphilis,
sickle cell genetic trait, and pregnancy, see Norman-
Bloodsaw, 135 F.3d at 1264, 1269, and whether a doctor must
disclose to patients that he has AIDS, see Doe, 941 F.2d at
796. We held in those cases that the constitutional right to
informational privacy protects those individuals from having
such highly private medical information enter the public
domain. But here, the panel agrees that an applicant does not
have a constitutional right to shield from the government the
fact that he has used illegal drugs.
In National Treasury Employees Union, the Fifth Circuit
noted that a public employee’s expectation of privacy “de-
pends, in part, upon society’s established values and its
NELSON v. NASA 6995
expectations of its public servants, as reflected in our repre-
sentative government.” 25 F.3d at 243. Observing that
“[t]oday’s society has made the bold and unequivocal state-
ment that illegal substance abuse will not be tolerated,” the
court held that “[s]urely anyone who works for the govern-
ment has a diminished expectation that his drug and alcohol
abuse history can be kept secret, given that he works for the
very government that has declared war on substance abuse.”
Id. I see no principled distinction between an applicant having
to disclose that he has used illegal drugs and having to addi-
tionally indicate whether he sought treatment or counseling
for illegal drug use. In Mangels, the Tenth Circuit, assessing
the constitutionality of a requirement of public disclosure of
illegal drug use by firefighters, stated “[t]he possession of
contraband drugs does not implicate any aspect of personal
identity which, under prevailing precedent, is entitled to con-
stitutional protection. Validly enacted drug laws put citizens
on notice that this realm is not a private one.” 789 F.2d at 839(citation omitted).
B. Even assuming that a constitutional right to pri-
vacy is implicated, NASA’s procedures should be
upheld because they are narrowly tailored to
meet legitimate state interests.
Even if the SF-85’s questions and Form 42 inquiries impli-
cate a constitutional right to information privacy, the panel
opinion’s analysis does not give adequate weight to NASA’s
need for this information to ensure that those it trusts with
access to JPL do not pose an unacceptable risk to the safety
and security of the facility. It also fails to appreciate the fact
that NASA’s actions are narrowly tailored because the Pri-
vacy Act prevents public disclosure of this information.
1. Safety and security are legitimate state interests.
The panel’s opinion acknowledges that NASA has a legiti-
mate government interest in conducting background investi-
6996 NELSON v. NASA
gations. NASA must “protect its facilities and their occupants
from harm and its information and technology from improper
disclosure.” NPR 1600.1, § 4.1.1. In order to “ensure maxi-
mum protection of NASA assets,” NASA determined that the
security requirements for contractors should “be equitable
with the employment suitability criteria for NASA Civil Ser-
vice employees” and “be uniformly and consistently applied.”
Id. § 4.2.3.
The NACI has two components: the National Agency
Check (“NAC”), which requires the completion of a SF-85,
and the Form 42 Inquiries. Although a standard NAC checks
name and fingerprint databases, the government determined
that this was insufficient to accomplish the security objectives
of HSPD-12 because these database checks would detect only
individuals whose fingerprints are on file at the FBI or indi-
viduals for whom there is a known history with law enforce-
ment or other government agencies. Thus, the government
determined that a NACI was necessary because Form 42’s
written inquiries would help verify information on an employ-
ee’s SF-85. The information would confirm or raise questions
as to the applicant’s trustworthiness and compliance with the
law. The NACI provides a disincentive to using false informa-
tion by subjecting an applicant to a potential perjury charge,
and also creates a means by which the government can readily
verify the validity of information entered onto the SF-85. This
substantially improves the probability of detecting individuals
claiming a false identity.
NASA has a legitimate need to ensure that those it trusts
with access to its facilities do not pose an unacceptable risk
to the safety and security of its costly equipment or its person-
nel. The work performed by the plaintiffs at JPL involves
some of the most sensitive and important technology devel-
oped by NASA, and implicates significant taxpayer money.
Once individuals pass through one of the three main
entrances, they have access to most of the facility and, while
they may not be able to enter areas where classified work is
NELSON v. NASA 6997
actually being done, they can travel unescorted to any build-
ing on JPL’s campus. Also, a NASA identification badge will
ordinarily give access to other NASA facilities, and depend-
ing on other agencies’ practices, access to other federal facili-
ties. Accordingly, NASA must be able to ensure that those
given identification badges meet at least minimum security
guidelines.
2. NASA’s procedures are narrowly tailored
Balancing NASA’s legitimate needs for this information
with plaintiffs’ right to keep this information private requires
that we look to the “overall context.” See In re Crawford, 194
F.3d at 959. Our engagement in the “delicate task of weighing
competing interests” requires that we consider such factors as:
the type of record requested, the information it does
or might contain, the potential for harm in any subse-
quent nonconsensual disclosure, the injury from dis-
closure to the relationship in which the record was
generated, 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 toward access.
Id. (quoting Doe v. Attorney Gen., 941 F.2d at 796).
The panel’s opinion makes our circuit the first one to find
that a background security questionnaire violates a constitu-
tional right of privacy, and diverges from the reasoning of the
D.C. and Fifth Circuits, both of which have rejected privacy-
based challenges to background checks similar to, or more
intrusive than, the one here. In American Federation of Gov-
ernment Employees, the D.C. Circuit held that, assuming a
constitutional right to privacy even existed, the government
“presented sufficiently weighty interests in obtaining the
information sought by the questionnaires to justify the intru-
6998 NELSON v. NASA
sions into their employees’ privacy.” 118 F.3d at 793. The
background investigations at issue included the more exten-
sive SF-85P Public Trust Positions and the SF-86 Sensitive
Questionnaires. Significantly, the D.C. Circuit held that “the
individual interest in protecting the privacy of the information
sought by the government is significantly less important
where the information is collected by the government but not
disseminated publicly.” Id. (noting that “the employees could
cite no case in which a court has found a violation of the con-
stitutional right to privacy where the government has col-
lected, but not disseminated, the information”).
The Fifth Circuit similarly found that the government
employees in that case had no reasonable expectation of pri-
vacy in keeping confidential the information requested in the
SF-85P Questionnaire. See Nat’l Treasury Employees Union,
25 F.3d at 244. The Fifth Circuit observed that the question-
naire requires the employees “only to disclose information to
the [government], as their employer — not to anyone else,
and certainly not to the public.” Id.The panel’s opinion disregards the distinction between a
privacy interest in avoiding collection of information by the
government and an interest in avoiding disclosure by the gov-
ernment — a distinction recognized by both the D.C. and
Fifth Circuits. This distinction is critical to this case because
the government has provided adequate safeguards to ensure
that the information is not disseminated to the public. The Pri-
vacy Act protects the information collected from public
and/or unauthorized access and disclosure. See 5 U.S.C.
§ 552a(b). Courts have routinely held that security provisions
designed to prevent the public disclosure of protected infor-
mation weigh heavily in favor of the government. See
Whalen, 429 U.S. at 601-02 (finding that extensive security
procedures required by statute and regulation substantially
reduce employees’ privacy interests); Lawall, 307 F.3d at 790(statute contained adequate protection to prevent unauthorized
disclosure of abortion by minor female). In American Federa-
NELSON v. NASA 6999
tion of Government Employees, the D.C. Circuit found it sig-
nificant that the Privacy Act prohibited public dissemination
of the information obtained in personnel background investi-
gations. 118 F.3d at 793. The court was satisfied that the pro-
tections of the Privacy Act substantially reduced the
employees’ privacy interests. Id. at 793; see also Fraternal
Order of Police, Lodge No. 5 v. City of Philadelphia, 812
F.2d 105, 118 (3d Cir. 1987) (holding “complete absence of
comparable protection of the confidential information to be
disclosed in response to the . . . questionnaire” was a signifi-
cant factor in finding violation of right of privacy).
In addition to Privacy Act protection, FIPS 201-1 estab-
lishes detailed privacy requirements governing the collection
and retention of information, including (1) the assignment of
a senior agency official to oversee privacy-related matters; (2)
a Privacy Impact Assessment, ensuring that only personnel
with a legitimate need for access to personal information are
authorized to access this information; (3) continuous auditing
of compliance; (4) use of an electromagnetically opaque
sleeve or other technology to protect against any unauthorized
contactless access to personal information; and (5) disclosure
to applicants of the intended uses and privacy implications of
the information submitted in order to obtain credentials. See
FIPS 201-1, § 2.4. NASA also issued an Interim Directive
augmenting NPR 1600.1, which details how “all [a]pplicants
will have their information protected by applicable provision
of the Privacy Act.” The Privacy Act, FIPS 201-1, and
NASA’s Interim Directive ensure that collected information
will not be disclosed to the public.
The panel, however, is concerned that Form 42’s “open-
ended questions appear to range far beyond the scope of the
legitimate state interests that the government has proposed.”
Nelson II, 530 F.3d at 881. But an effective investigation of
an applicant generally requires asking open-ended questions
to allow investigators some flexibility to follow up on rele-
vant leads. Instead, the panel’s opinion would second-guess
7000 NELSON v. NASA
determinations regarding suitability for federal employment
and the security of federal institutions that are best left to the
Executive Branch.
In assessing whether NASA’s actions are narrowly tailored,
we look at the nature of the inquiry and ask whether it is an
appropriate matter of inquiry based on the legitimate concerns
raised by the government. See Thorne, 726 F.2d at 469. Form
42’s questions to designated references are limited to “addi-
tional information which [they] feel may have a bearing on
this person’s suitability for government employment or a
security clearance.” In American Federation of Government
Employees, the D.C. Circuit found a release form in a back-
ground investigation that authorized the government to collect
“any information relating to my activities” sufficiently nar-
rowly tailored because the Privacy Act limits the collection to
“relevant” information in order to determine the fitness of an
individual. 118 F.3d at 789, 794. The court observed that “the
Privacy Act requires that an agency ‘maintain in its records
only such information about an individual as is relevant and
necessary to accomplish a purpose of the agency required to
be accomplished by statute or by executive order of the Presi-
dent.’ ” Id. at 794 (quoting 5 U.S.C. § 552a(e)(1)). The scope
of Form 42’s questions asking for information “bearing on
this person’s suitability for government employment or a
security clearance” is similar to the release form in American
Federation of Government Employees.
Finally, the panel concludes that the SF-85’s request for
disclosure of “any treatment or counseling received for illegal
drug use would presumably lessen the government’s concerns
regarding the underlying activity,” and thus, does not suffi-
ciently demonstrate a legitimate state interest. Nelson II, 530
F.3d at 879. As discussed above, a government worker’s drug
use history cannot be kept from the government. See Nat’l
Treasury Employees Union, 25 F.3d at 243. If a government
worker’s illegal drug use history is not entitled to constitu-
tional protection, as the panel agrees, I do not see how a ques-
NELSON v. NASA 7001
tion regarding whether the applicant has received any
treatment or counseling does not concern a legitimate state
interest, especially when it provides a more complete picture
of an applicant’s acknowledged drug use history. Of course,
successful counseling might alleviate security concerns, but
this supports rather than detracts from the inquiry’s relevance
and legitimacy. Given that the government may legitimately
inquire as to an employee’s illegal drug use, it makes little
sense to prohibit the government from asking about an
employee’s treatment or counseling for drug use, which is
necessary for a complete evaluation of the effect of the
employee’s drug use. The panel’s opinion draws an arbitrary
line, one which severely hampers the government’s ability to
secure its facilities.
III. Conclusion
The panel’s opinion sharply curtails the degree to which the
government can protect the safety and security of federal
facilities. It significantly expands the constitutional right to
informational privacy and puts the Ninth Circuit at odds with
other circuits that have considered the right to informational
privacy with respect to personnel background investigations.
For these reasons, I respectfully dissent from the denial of
rehearing en banc.
KLEINFELD, Circuit Judge, with whom CALLAHAN and
BEA, Circuit Judges, join, dissenting from the denial of
rehearing en banc:
I join in Judge Callahan’s dissent from denial of rehearing
en banc. Judge Callahan focuses on the drug treatment ques-
tion and other inquiries to the applicant. I write to supplement
her discussion of the other government conduct the panel held
likely to be unconstitutional — the inquiries to references,
past employers, landlords, and schools.
7002 NELSON v. NASA
The panel characterizes as “the most problematic aspect of
the government’s investigation — the open-ended Form 42
inquiries.”1 Almost 1,000,000 of these inquiries are sent out
every year, not just for people applying for jobs at the Jet Pro-
pulsion Lab managing space missions and protecting national
security on secret space matters, but also for most other gov-
ernment jobs.2 The panel opinion is likely to impair national
security by enjoining reasonable reference checks on appli-
cants for federal government functions. The panel’s injunction
failed to consider this public interest factor, contrary to the
Supreme Court’s recent admonition that “consideration of the
public interest” is mandatory “in assessing the propriety of
any injunctive relief.”3
The panel forbids the government from making the inqui-
ries it has been making for decades, and from doing what any
sensible private employer would do.4 The panel’s concern is
that the “open-ended questions” — any adverse information
regarding financial integrity, drug and alcohol abuse, mental
and emotional stability, general behavior and conduct, and
other matters — go beyond the government’s legitimate
security needs. The panel says that “highly personal informa-
tion” is likely to come back when this form is sent to refer-
1
Nelson v. NASA, 530 F.3d 865, 877 (9th Cir. 2008).
2
See Exec. Order No. 10,450 § 3(a), 18 Fed. Reg. 2489 (Apr. 29, 1953),
reprinted as amended in 5 U.S.C. § 7311 app. at 78 (2006) (“The appoint-
ment of each civilian officer or employee in any department or agency of
the Government shall be made subject to . . . . [I]n no event shall the inves-
tigation include less than . . . written inquiries to . . . former employers and
supervisors, references, and schools attended by the person under investi-
gation.”) (emphasis added); Submission for OMB Review, 70 Fed. Reg.
61,320, 61,320 (Oct. 21, 2005) (“Approximately 980,000 INV 42 inquiries
are sent to individuals annually. The INV 42 takes approximately five
minutes to complete.”).
3
Winter v. NRDC, 129 S. Ct. 365, 381 (2008), rev’g 518 F.3d 658 (9th
Cir.) (emphasis added).
4
Exec. Order No. 10,450, 18 Fed. Reg. 2489 (Apr. 29, 1953), reprinted
as amended in 5 U.S.C. § 7311 app. at 77-80 (2006).
NELSON v. NASA 7003
ences, former employers, and landlords.5 I disagree. What
these categories of people know ought to be subject to
inquiry.
First, what would references, past employers, and landlords
know that is too “highly personal” for the government to
know when it is hiring someone?6 There is no citation for the
panel’s claim that “[t]he 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.”7 A landlord,
unlike a doctor or lawyer, does not obtain genuinely private
medical or legal confidences, after all. That is why past
employers, unlike doctors or lawyers, have a privilege in def-
amation and invasion of privacy law.8 A past employer can
(and should) tell a prospective employer if the applicant stole
money, came in late and hungover on Mondays, or wound up
in jail after a drug bust, yet the majority would treat this as
a secret not to be disclosed to the Jet Propulsion Lab or any
government agency hiring for a civil service position.
Other circuits have rejected the panel’s position. The Dis-
trict of Columbia Circuit held that collection of information
does not raise the concerns that dissemination would, noting
that “the employees could cite no case in which a court has
found a violation of the constitutional right to privacy where
the government has collected, but not disseminated, the informa-
tion.”9 Likewise the Fifth Circuit.10 This case concerns only
collection of information, not dissemination.
5
Nelson, 530 F.3d at 879-82.
6
See United States v. Jacobsen, 466 U.S. 109, 117 (1984) (“[W]hen an
individual reveals private information to another, he assumes the risk that
his confidant will reveal that information . . . .”).
7
Nelson, 530 F.3d at 880 n.5.
8
See Restatement (Second) of Torts, § 652G (1977); id. § 595 cmt. i
(noting conditional privilege to make a defamatory statement regarding
former employee, despite any putative invasion of privacy).
9
Am. Fed. of Gov’t Employees v. HUD, 118 F.3d 786, 793 (D.C. Cir.
1997) (emphasis added).
10
Nat’l Treasury Employees Union v. U.S. Dep’t of Treasury, 25 F.3d
7004 NELSON v. NASA
The panel appears to be especially concerned with the
“open-ended” inquiry into “any other adverse matters.” The
panel cites no authority, and gives no good reason, for reject-
ing these inquiries. When a prospective employer calls a past
employer, it is exceedingly difficult to find out bad things,
because people usually do not like to allege them without
absolute proof (and because of potential liability and retalia-
tion). The prospective employer does not know what bad
things to ask about until something comes up in response to
the open-ended questions. The prospective employer must
smoke out negative information with open-ended broad ques-
tions and is lucky to get a glimmer. The answers to open-
ended questions are not infrequently revelatory and surprising.11
Most of us do not hire law clerks and secretaries without
talking to professors and past employers and asking some
general questions about what they are like. It is hard to imag-
ine an espresso stand hiring a barista without some open-
ended questions to throw light on his reliability, honesty with
cash, customer service, and ability to get along with
coworkers and supervisors. I doubt if a person cleaning homes
for a living hires an assistant without first finding out some-
237, 244 (5th Cir. 1994) (“[G]iven that the information collected by the
questionnaire will not be publically disclosed, we hold that the individual
employees represented in the present case have no reasonable expectation
that they can keep confidential from their government employer the infor-
mation requested . . . .”) (emphasis added).
11
None more so than People v. Hill, 452 P.2d 329, 337 (Cal. 1969),
where an interviewee answered the question “is there anything else you
want to tell us” by admitting a previous burglary, which made him a sus-
pect, later convicted, in a home-invasion murder. See also Shannon
Dininny, Washington Prepares for First Execution since 2001, Associated
Press, Mar. 9, 2009 (suspect in a California attempted murder answers the
same question by admitting a murder in Washington, for which he was
later convicted and currently faces the death penalty); cf. United States v.
King, 34 C.M.R. 7, 9 (C.M.A. 1963) (“The Air Policeman ‘more or less’
found out ‘what the story was’ when he asked King if there was ‘anything
you want to tell me.’ ”).
NELSON v. NASA 7005
thing about the assistant. Without open-ended questions, it is
hard to know what potential problems might need an explana-
tion. Of course some answers will be irrelevant or silly. But
without the open-ended questions, any employer gets stuck
with people who should not have been hired, and even, occa-
sionally, people who are dangerous.
Under the panel opinion, our federal government cannot
exercise the reasonable care an espresso stand or clothing
store exercises when hiring. No revival of McCarthyism is
threatened by allowing as much inquiry for hiring a Jet Pro-
pulsion Lab engineer as a barista.
Chief Judge KOZINSKI, with whom Judges KLEINFELD
and BEA join, dissenting from the denial of rehearing en
banc:
Is there a constitutional right to informational privacy?
Thirty-two Terms ago, the Supreme Court hinted that there
might be and has never said another word about it. See
Whalen v. Roe, 429 U.S. 589, 599 (1977) (alluding to “the
individual interest in avoiding disclosure of personal mat-
ters”), and Nixon v. Administrator of General Services, 433
U.S. 425, 457 (1977) (quoting the above phrase from
Whalen). With no Supreme Court guidance except this
opaque fragment, the courts of appeals have been left to
develop the contours of this free-floating privacy guarantee on
their own. It’s a bit like building a dinosaur from a jawbone
or a skull fragment, and the result looks more like a tur-
ducken. We have a grab-bag of cases on specific issues, but
no theory as to what this right (if it exists) is all about. The
result in each case seems to turn more on instinct than on any
overarching principle.
One important function of the en banc process is to synthe-
size the accumulated experience of panels into firmer guide-
7006 NELSON v. NASA
posts. We ought to have taken this case en banc for precisely
that reason. Unless and until the Supreme Court again weighs
in on this topic, only an en banc court can trim the hedges,
correct what now appear to be missteps and give the force of
law to those distinctions that experience has revealed to be
important.
1. One such distinction is between mere government collec-
tion of information and the government’s disclosure of private
information to the public. Whalen involved the latter: patients
who feared public disclosure of their prescription records.
Many of the cases in our circuit fall into this mold. In Tucson
Woman’s Clinic v. Eden, we held that women had a right not
to have the government disclose their pregnancy records to a
third-party contractor. 379 F.3d 531, 553 (9th Cir. 2004). In
re Crawford featured a bankruptcy preparer who didn’t want
his Social Security number published. 194 F.3d 954 (9th Cir.
1999). But in other cases, such as the one now before us, we
have sustained informational privacy claims without any alle-
gations that the government might publish what it learned.
See, e.g., Norman-Bloodsaw v. Lawrence Berkeley Labora-
tory, 135 F.3d 1260 (9th Cir. 1998).
The distinction matters. Government acquisition of infor-
mation is already regulated by express constitutional provi-
sions, particularly those in the Fourth, Fifth and Sixth
Amendments. How can the creation of new constitutional
constraints be squared with the teachings of Medina v. Cali-
fornia, which cautioned against discovering protections in the
Due Process Clause in areas where the “Bill of Rights speaks
in explicit terms?” 505 U.S. 437, 443 (1992). Our cases,
including this one, neither address nor acknowledge this prob-
lem. Yet limiting the government’s ability to gather informa-
tion has very serious implications, as Judge Callahan’s dissent
illustrates.
2. There’s also an important distinction between disclosures
that the target may refuse and those imposed regardless of his
NELSON v. NASA 7007
consent. The latter is inherently more invasive. Nixon is
instructive: There, the former president was required by law
to submit his papers for screening by the National Archives.
This requirement wasn’t imposed as a condition on some ben-
efit or job opportunity; rather, it was imposed outright under
penalty of law. 433 U.S. at 429. Though Nixon was unsuc-
cessful, it wasn’t because his claim wasn’t found to be cogni-
zable; the public interest was held to outweigh his privacy. In
Whalen, the only way for the patients to avoid having their
prescription records turned over was to give up needed phar-
maceuticals. Our cases sometimes fit comfortably in this
mold: What was so creepy about the medical tests in Norman-
Bloodsaw, for example, was the sneaky way they were done
without the subjects’ knowledge or consent. 135 F.3d at 1269.
It strikes me as quite a different case when the government
seeks to collect information directly from persons who are
free to say no. The plaintiffs here had a simple way to keep
their private dealings private: They could have declined to fill
out the forms, provided no references and sought other
employment. Does being asked to disclose information one
would prefer to keep private, in order to keep a government
job to which one has no particular entitlement, amount to a
constitutional violation? If the answer is yes, then the govern-
ment commits all manner of constitutional violations on tax
returns, government contract bids, loan qualification forms,
and thousands of job applications that are routinely filled out
every day.
3. There is also a distinction, recognized by some of our
sister circuits, between information that pertains to a funda-
mental right, such as the right to an abortion or contraception,
see, e.g., Bloch v. Ribar, 156 F.3d 673, 684 (6th Cir. 1998),
and a free-standing right not to have the world know bad
things about you. The former kind of right seems to stand on
far sounder constitutional footing than the latter.
7008 NELSON v. NASA
4. Consider also the contrast between investigating a sub-
ject by digging through his bank records or medical files, and
contacting third parties to find out what they know about him.
One’s pregnancy status (perhaps known to no one), as in
Norman-Bloodsaw, or the need for certain pharmaceuticals, as
in Whalen, is private precisely because one has been careful
not to disclose it. But one’s privacy interest ought to wane the
more widely the information is known. The Supreme Court
has made a related point about the Fourth Amendment: Indi-
viduals lack a reasonable expectation of privacy in informa-
tion that they share voluntarily with others. See United States
v. Miller, 425 U.S. 435, 443 (1976).
Does one really have a free-standing constitutional right to
withhold from the government information that others in the
community are aware of? I don’t think so. How then can it be
constitutionally impermissible for the government to ask a
subject’s friends, family and neighbors what they know about
him? Surely there’s no constitutional right to have the state be
the last to know.
5. A final distinction that emerges from the cases is
between the government’s different functions as enforcer of
the laws and as employer. In Whalen, the government was
acting as the former, collecting prescription records to aid
later investigation of unlawful distribution. 589 U.S. at
591-92. Similarly, in Tucson Woman’s Clinic, the government
was ostensibly scooping up patient information to protect the
public health. 379 F.3d at 536-37. Here, as Judge Kleinfeld
illustrates in his dissent, the government is simply acting as
any other employer might: collecting information for its own
purposes to make employment decisions.
If a right to informational privacy exists at all, but see AFL-
CIO v. Department of Housing and Urban Development, 118
F.3d 786, 791, 793 (D.C. Cir. 1997), it would be far more
likely to apply when the government is exercising its sover-
eign authority than when it is monitoring its own employees.
NELSON v. NASA 7009
While I can think of many reasons to worry when the govern-
ment seeks to uncover private information using the special
powers that private entities lack, it’s far less obvious why it
should be hamstrung in ensuring the security and integrity of
its operations in ways that private employers are not. The del-
icate knowledge handled by thousands of federal employees
seems as worthy of protection as the formula for Coca-Cola.
***
As we have recognized elsewhere, there are circumstances
when a well-worn doctrine can grow into “a vexing thicket of
precedent” that then becomes “difficult for litigants to follow
and for district courts—and ourselves—to apply with consis-
tency.” United States v. Heredia, 483 F.3d 913, 919 (9th Cir.
2007) (en banc). The back-and-forth between the panel and
my dissenting colleagues illustrates that we have reached this
point with the doctrine of informational privacy. Though I am
sympathetic to the arguments of my dissenting colleagues, it’s
not clear that the panel has misapplied circuit law; when the
law is so subjective and amorphous, it’s difficult to know
exactly what a misapplication might look like.
It’s time to clear the brush. An en banc court is the only
practical way we have to do it. We didn’t undertake that chore
today, but we’ll have to sooner or later, unless the Supreme
Court should intervene.
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ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON REUTERS/WEST—SAN FRANCISCO
The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2009 Thomson Reuters/West.