Nat'l Aeronautics & Space Admin. v. Nelson

Citation131 S.Ct. 746,178 L.Ed.2d 667,562 U.S. 134
Decision Date19 January 2011
Docket NumberNo. 09–530.,09–530.
Parties NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, et al., Petitioners, v. Robert M. NELSON et al.
CourtUnited States Supreme Court

Neal K. Katyal, Acting Solicitor General, Washington, Dc, for Petitioners.

Dan Stormer, Pasadena, CA, for respondents.

Neal Kumar Katyal, Acting Solicitor General, Counsel of Record, Department of Justice, Washington, DC, for petitioners.

Paul R.Q. Wolfson, Shirley Cassin Woodward, Shivaprasad Nagaraj, Anna Melamud, Wilmer, Cutler, Pickering, Hale and Dorr LLP, Washington, DC, Dan Stormer, Counsel of Record, Virginia Keeny, Hadsell, Stormer, Keeny, Richardson & Renick, LLP, Pasadena, CA, for respondents.

Justice ALITO, J., delivered the opinion of the Court.

In two cases decided more than 30 years ago, this Court referred broadly to a constitutional privacy "interest in avoiding disclosure of personal matters." Whalen v. Roe, 429 U.S. 589, 599–600, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) ; Nixon v. Administrator of General Services, 433 U.S. 425, 457, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977). Respondents in this case, federal contract employees at a Government laboratory, claim that two parts of a standard employment background investigation violate their rights under Whalen and Nixon . Respondents challenge a section of a form questionnaire that asks employees about treatment or counseling for recent illegal-drug use. They also object to certain open-ended questions on a form sent to employees' designated references.

We assume, without deciding, that the Constitution protects a privacy right of the sort mentioned in Whalen and Nixon . We hold, however, that the challenged portions of the Government's background check do not violate this right in the present case. The Government's interests as employer and proprietor in managing its internal operations, combined with the protections against public dissemination provided by the Privacy Act of 1974, 5 U.S.C. § 552a (2006 ed. and Supp. IV), satisfy any "interest in avoiding disclosure" that may "arguably ha[ve] its roots in the Constitution." Whalen, supra, at 599, 605, 97 S.Ct. 869.

I
A

The National Aeronautics and Space Administration (NASA) is an independent federal agency charged with planning and conducting the Government's "space activities." Pub.L. 111–314, § 3, 124 Stat. 3333, 51 U.S.C. § 20112(a)(1). NASA's workforce numbers in the tens of thousands of employees. While many of these workers are federal civil servants, a substantial majority are employed directly by Government contractors. Contract employees play an important role in NASA's mission, and their duties are functionally equivalent to those performed by civil servants.

One NASA facility, the Jet Propulsion Laboratory (JPL) in Pasadena, California, is staffed exclusively by contract employees. NASA owns JPL, but the California Institute of Technology (Cal Tech) operates the facility under a Government contract. JPL is the lead NASA center for deep-space robotics and communications. Most of this country's unmanned space missions—from the Explorer 1 satellite in 1958 to the Mars Rovers of today—have been developed and run by JPL. JPL scientists contribute to NASA earth-observation and technology-development projects. Many JPL employees also engage in pure scientific research on topics like "the star formation history of the universe" and "the fundamental properties of quantum fluids." App. 64–65, 68.

Twenty-eight JPL employees are respondents here. Many of them have worked at the lab for decades, and none has ever been the subject of a Government background investigation. At the time when respondents were hired, background checks were standard only for federal civil servants. See Exec. Order No. 10450, 3 CFR 936 (19491953 Comp.). In some instances, individual contracts required background checks for the employees of federal contractors, but no blanket policy was in place.

The Government has recently taken steps to eliminate this two-track approach to background investigations. In 2004, a recommendation by the 9/11 Commission prompted the President to order new, uniform identification standards for "[f]ederal employees," including "contractor employees." Homeland Security Presidential Directive/HSPD–12—Policy for a Common Identification Standard for Federal Employees and Contractors, Public Papers of the President, George W. Bush, Vol. 2, Aug. 27, p. 1765 (2007) (hereinafter HSPD–12), App. 127. The Department of Commerce implemented this directive by mandating that contract employees with long-term access to federal facilities complete a standard background check, typically the National Agency Check with Inquiries (NACI). National Inst. of Standards and Technology, Personal Identity Verification of Federal Employees & Contractors, pp. iii-vi, 1–8, 6 (FIPS PUB 201–1, Mar. 2006) (hereinafter FIPS PUB 201–1), App. 131–150, 144–145.1

An October 2007 deadline was set for completion of these investigations. Memorandum from Joshua B. Bolten, Director, OMB, to the Heads of all Departments and Agencies (Aug. 5, 2005), App. 112. In January 2007, NASA modified its contract with Cal Tech to reflect the new background-check requirement. JPL management informed employees that anyone failing to complete the NACI process by October 2007 would be denied access to JPL and would face termination by Cal Tech.

B

The NACI process has long been the standard background investigation for prospective civil servants. The process begins when the applicant or employee fills out a form questionnaire. Employees who work in "non-sensitive" positions (as all respondents here do) complete Standard Form 85 (SF–85). Office of Personnel Management (OPM), Standard Form 85, Questionnaire for Non–Sensitive Positions, App. 88–95.2

Most of the questions on SF–85 seek basic biographical information: name, address, prior residences, education, employment history, and personal and professional references. The form also asks about citizenship, selective-service registration, and military service. The last question asks whether the employee has "used, possessed, supplied, or manufactured illegal drugs" in the last year. Id., at 94. If the answer is yes, the employee must provide details, including information about "any treatment or counseling received." Ibid. A "truthful response," the form notes, cannot be used as evidence against the employee in a criminal proceeding. Ibid. The employee must certify that all responses on the form are true and must sign a release authorizing the Government to obtain personal information from schools, employers, and others during its investigation.

Once a completed SF–85 is on file, the "agency check" and "inquiries" begin. 75 Fed.Reg. 5359 (2010). The Government runs the information provided by the employee through FBI and other federal-agency databases. It also sends out form questionnaires to the former employers, schools, landlords, and references listed on SF–85. The particular form at issue in this case—the Investigative Request for Personal Information, Form 42—goes to the employee's former landlords and references. Ibid .3

Form 42 is a two-page document that takes about five minutes to complete. See ibid . It explains to the reference that "[y]our name has been provided by" a particular employee or applicant to help the Government determine that person's "suitability for employment or a security clearance." App. 96–97. After several preliminary questions about the extent of the reference's associations with the employee, the form asks if the reference has "any reason to question" the employee's "honesty or trustworthiness." Id., at 97. It also asks if the reference knows of any "adverse information" concerning the employee's "violations of the law," "financial integrity," "abuse of alcohol and/or drugs," "mental or emotional stability," "general behavior or conduct," or "other matters." Ibid . If "yes" is checked for any of these categories, the form calls for an explanation in the space below. That space is also available for providing " additional information" ("derogatory" or "positive") that may bear on " suitability for government employment or a security clearance." Ibid .

All responses to SF–85 and Form 42 are subject to the protections of the Privacy Act. The Act authorizes the Government to keep records pertaining to an individual only when they are "relevant and necessary" to an end "required to be accomplished" by law. 5 U.S.C. § 552a(e)(1). Individuals are permitted to access their records and request amendments to them. §§ 552a(d)(1), (2). Subject to certain exceptions, the Government may not disclose records pertaining to an individual without that individual's written consent. § 552a(b).

C

About two months before the October 2007 deadline for completing the NACI, respondents brought this suit, claiming, as relevant here, that the background-check process violates a constitutional right to informational privacy. App. 82 (Complaint for Injunctive and Declaratory Relief).4 The District Court denied respondents' motion for a preliminary injunction, but the Ninth Circuit granted an injunction pending appeal, 506 F.3d 713 (2007), and later reversed the District Court's order. The court held that portions of both SF–85 and Form 42 are likely unconstitutional and should be preliminarily enjoined. 512 F.3d 1134, vacated and superseded, 530 F.3d 865 (2008).

Turning first to SF–85, the Court of Appeals noted respondents' concession "that most of the questions" on the form are "unproblematic" and do not "implicate the constitutional right to informational privacy." 530 F.3d, at 878. But the court determined that the "group of questions concerning illegal drugs" required closer scrutiny. Ibid . Applying Circuit precedent, the court upheld SF–85's inquiries into recent involvement with drugs as "necessary to further the government's legitimate interest" in combating illegal-drug use. Id., at 879. The...

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