Nelson v. National Aeronautics and Space Admin., 07-56424.

• Citation: 568 F.3d 1028
• Decision Date: 04 June 2009
• Docket Number: No. 07-56424.,07-56424.
• Parties: Robert M. NELSON; et al., Plaintiffs-Appellants, v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, an Agency of the United States; et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

568 F.3d 1028

Robert M. NELSON; et al., Plaintiffs-Appellants, v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, an Agency of the United States; et al., Defendants-Appellees.

No. 07-56424.

United States Court of Appeals, Ninth Circuit.

June 4, 2009.

Virginia Keeny, Esquire, Dan Stormer, Hadsell Stormer Keeny Richardson & Renick, LLP, Pasadena, CA, for Plaintiffs-Appellants.

Wendy Ertmer, Esquire, Vesper Mei, Esquire, Mark B. Stern, Melissa N. Patterson, U.S. Department of Justice, Washington, DC, Mark T. Cramer, Mark Charles Holscher, Esquire, Alexander Pilmer, Esquire, Kirkland & Ellis, LLP, Los Angeles, CA, for Defendants-Appellees.

Jennifer Granick, Electronic Frontier Foundation, San Francisco, CA, for Amicus Curiae.

D.C. No. CV-07-05669-ODW, Central District of California, Los Angeles.

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 matter 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 evidentiary 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 preliminary injunction sought by a class² of long-term California Institute of Technology ("Caltech") employees, including scientists, engineers, and administrative support personnel—all classified by the National Aeronautics and Space Administration ("NASA") as low risk employees.³ They oppose implementation 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 injunction, we concluded that, as to the constitutional right of privacy 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 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," Golden Gate Rest. Ass'n v. City & County of S.F., 512 F.3d 1112, 1126 (9th Cir.2008), was our determination that this "injunction is in the public interest," Winter v. Natural Res. Def. Council, Inc., ___ U.S. ___, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (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 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 privacy 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 extensive 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 information sought from neighbors, landlords, employment supervisors, 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 information about drug treatment "in the face of a legitimate need by the employer to protect the safety and security of a facility." 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 legitimate 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. Lawrence Berkeley Laboratory, 135 F.3d 1260 (9th Cir.1998) (holding that unauthorized employer testing for sensitive medical information violates employees' right to informational 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 potential employee of the state may not be required to disclose personal sexual matters to gain the benefits of state employment), we concluded that only two aspects⁸ of the government inquiries in the challenged Standard Form 85 ("SF 85") questionnaire 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 contract employees, it had failed to demonstrate that its inquiry was narrowly tailored to meet those interests; further, the government asserted no legitimate interest to justify inquiries regarding drug treatment, as opposed to drug use. Id. We reversed the district court only to the extent that the government 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 Commerce 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 identification 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 Information which permits the government to collect information about the employee. Nelson II, 530 F.3d at 870-71. The government 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 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 contrary: the Authorization for Release of Information authorizes any investigator conducting a background check using Form 42 to obtain information not only from past employers, landlords, 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 negative information of which he or she is aware," no matter how that "information" fell into the hands of the source. Nelson II, ...