530 F.3d 865 (9th Cir. 2008), 07-56424, Nelson v. National Aeronautics and Space Admin.

Docket Nº:07-56424.
Citation:530 F.3d 865
Party Name:Robert M. NELSON; William Bruce Branerdt; Julia Bell; Josette Bellan; Dennis V. Byrnes; George Carlisle; Kent Robert Crossin; Larry R. D'Addario; Riley M. Duren; Peter R. Eisenhardt; Susan D.J. Foster; Matthew P. Golombek; Varoujan Gorjian; Zareh Gorjian; Robert J. Haw; James Kulleck; Sharlon L. Laubach; Christian A. Lindensmith; Amanda Mainzer; Sc
Case Date:June 20, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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530 F.3d 865 (9th Cir. 2008)

Robert M. NELSON; William Bruce Branerdt; Julia Bell; Josette Bellan; Dennis V. Byrnes; George Carlisle; Kent Robert Crossin; Larry R. D'Addario; Riley M. Duren; Peter R. Eisenhardt; Susan D.J. Foster; Matthew P. Golombek; Varoujan Gorjian; Zareh Gorjian; Robert J. Haw; James Kulleck; Sharlon L. Laubach; Christian A. Lindensmith; Amanda Mainzer; Scott Maxwell; Timothy P. McElrath; Susan Paradise; Konstantin Penanen; Celeste M. Satter; Peter M.B. Shames; Amy Snyder Hale; William John Walker; Paul R. Weissman, Plaintiffs-Appellants,


NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, an Agency of the United States; Michael Griffin, Director of NASA, in his official capacity only; United States Department of Commerce; Carlos M. Gutierrez, Secretary of Commerce, in his official capacity only; California Institute of Technology, Defendants-Appellees.

No. 07-56424.

United States Court of Appeals, Ninth Circuit.

June 20, 2008

Argued and Submitted Dec. 5, 2007.

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Dan Stormer and Virginia Keeny , Law Offices of Hadsell & Stormer, Inc., Pasadena, CA, for the plaintiffs-appellants.

Mark B. Stern and Dana Martin , U.S. Department of Justice, Appellate Staff Civil Division, Washington, D.C., and Mark Holscher , R. Alexander Pilmer , and Mark T. Cramer , Kirkland & Ellis LLP, Los Angeles, CA, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California; Otis D. Wright , District Judge, Presiding. D.C. No. CV-07-05669-ODW.

Before: DAVID R. THOMPSON and KIM McLANE WARDLAW , Circuit Judges, and EDWARD C. REED, JR.,[*] District Judge.


Our prior opinion filed on January 11, 2008, and reported at 512 F.3d 1134 is vacated concurrent with the filing of a new opinion today.

The petition for panel rehearing and the petition for rehearing en banc are denied as moot. The parties may file new petitions for rehearing and rehearing en banc in accordance with the Federal Rules of Appellate Procedure.



WARDLAW , Circuit Judge:

The named appellants in this action (“Appellants" ) are scientists, engineers, and administrative support personnel at the Jet Propulsion Laboratory (“JPL" ), a research laboratory run jointly by the National Aeronautics and Space Administration (“NASA" ) and the California Institute of Technology (“Caltech" ). Appellants sued NASA, Caltech, and the Department of Commerce (collectively “Appellees" ), challenging NASA's recently adopted requirement that “low risk" contract employees like themselves submit to in-depth background investigations. The district court denied Appellants' request for a preliminary injunction, finding they were unlikely to succeed on the merits and unable to demonstrate irreparable harm. Because Appellants raise serious legal and constitutional questions and because the balance of hardships tips sharply in their favor, we reverse and remand.


JPL is located on federally owned land, but operated entirely by Caltech pursuant to a contract with NASA. Like all JPL personnel, Appellants are employed by Caltech, not the government. Appellants are designated by the government as “low risk" contract employees. They do not work with classified material.

Appellants contest NASA's newly instated procedures requiring “low risk" JPL personnel to yield to broad background investigations as a condition of retaining access to JPL's facilities. NASA's new policy requires that every JPL employee undergo a National Agency Check with Inquiries (NACI), the same background investigation required of government civil service employees, before he or she can obtain an identification badge needed for access to JPL's facilities. The NACI investigation requires the applicant to complete and submit Standard Form 85 (SF 85), which asks for (1) background information,

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including residential, educational, employment, and military histories; (2) the names of three references that “know you well;" and (3) disclosure of any illegal drug use, possession, supply, or manufacture within the past year, along with the nature and circumstances of any such activities and any treatment or counseling received. This information is then checked against four government databases: (1) Security/Suitability Investigations Index; (2) the Defense Clearance and Investigation Index; (3) the FBI Name Check; and (4) the FBI National Criminal History Fingerprint Check. Finally, SF 85 requires the applicant to sign an “Authorization for Release of Information" that authorizes the government to collect “any information relating to [his or her] activities from schools, residential management agents, employers, criminal justice agencies, retail business establishments, or other sources of information." The information sought “may include, but is not limited to, [the applicant's] academic, residential, achievement, performance, attendance, disciplinary, employment history, and criminal history record information." 1 The record is vague as to the exact extent to and manner in which the government will seek this information, but it is undisputed that each of the applicants' references, employers, and landlords will be sent an “Investigative Request for Personal Information" (Form 42), which asks whether the recipient has “any reason to question [the applicant's] honesty or trustworthiness" or has “any adverse information about [the applicant's] employment, residence, or activities" concerning “violations of law," “financial integrity," “abuse of alcohol and/or drugs," “mental or emotional stability," “general behavior or conduct," or “other matters." The recipient is asked to explain any adverse information noted on the form. Once the information has been collected, NASA and the federal Office of Personnel Management determine whether the employee is “suitable" for continued access to NASA's facilities, though the exact mechanics of this suitability determination are in dispute.2

Since it was first created in 1958, NASA, like all other federal agencies, has conducted NACI investigations of its civil servant employees but not of its contract employees. Around the year 2000, however, NASA “determined that the incomplete screening of contractor employees posed a security vulnerability for the agency" and began to consider requiring NACI investigations for contract employees as well. In November 2005, revisions to NASA's Security Program Procedural Requirements imposed the same baseline NACI investigation for all employees, civil servant or contractor. These changes were not made

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applicable to JPL employees until January 29, 2007, when NASA modified its contract with Caltech to include the requirement. Caltech vigorously opposed the change, but NASA invoked its contractual right to unilaterally modify the contract and directed Caltech to comply immediately with the modifications. Caltech subsequently adopted a policy-not required by NASA-that all JPL employees who did not successfully complete the NACI process so as to receive a federal identification badge would be deemed to have voluntarily resigned their Caltech employment.

On August 30, 2007, Appellants filed suit alleging, both individually and on behalf of the class of JPL employees in non-sensitive or “low risk" positions, that NASA's newly imposed background investigations are unlawful. Appellants bring three primary claims: (1) NASA and the Department of Commerce (collectively “Federal Appellees" ) violated the Administrative Procedure Act (“APA" ) by acting without statutory authority in imposing the investigations on contract employees; (2) the investigations constitute unreasonable searches prohibited by the Fourth Amendment; and (3) the investigations violate their constitutional right to informational privacy.

On September 24, 2007, Appellants moved for a preliminary injunction against the new policy on the basis that any JPL worker who failed to submit an SF 85 questionnaire by October 5, 2007, would be summarily terminated. The district court denied Appellants' request. It divided Appellants' claims into two categories-those challenging the SF 85 questionnaire itself and those challenging the grounds upon which an employee might be deemed unsuitable-and found that the challenges to the suitability determination were highly speculative and unripe for judicial review. The court rejected Appellants' APA claim, finding statutory support for the investigations in the National Aeronautics and Space Act of 1958 (the “Space Act" ), 42 U.S.C. § 2455(a) . The court rejected Appellants' Fourth Amendment argument, holding that a background investigation was not a “search" within the meaning of the Fourth Amendment. Finally, the court found that the SF 85 questionnaire implicated the constitutional right to informational privacy but was narrowly tailored to further the government's legitimate security interest. After concluding that Appellants had little chance of success on the merits, the district court also found that they could not demonstrate irreparable injury because any unlawful denial of access to JPL's facilities could be remedied post hoc through compensatory relief.

On appeal, a motions panel of our court granted a temporary injunction pending a merits determination of the denial of the preliminary injunction. Nelson v. NASA, 506 F.3d 713 (9th Cir.2007) . The panel concluded that the information sought by SF 85 and its waiver requirement raised serious privacy issues and questioned whether it was narrowly tailored to meet the government's...

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