Nelson v. National Aeronautics and Space Administration, No. 07-56424 (9th Cir. June 4, 2009)

By Paul Mollica

Over a year and a half after its original decision ordering entry of a preliminary injunction to put a halt to intrusive background checks of low-level contract employees at the Jet Propulsion Lab, the Ninth Circuit finally orders the denial of rehearing en banc, with five judges dissenting and four separate opinions trailing behind.

In Nelson v. National Aeronautics and Space Administration, 506 F.3d 713 (9th Cir. 2007), the panel reviewed claims brought under the Administrative Procedure Act, common-law constitutional privacy and the Fourth Amendment.  The case included 28 plaintiffs and a putative class of some 9000 others. The district court denied preliminary injunctive relief against the use of a Standard Form 85 for such employees.  As the panel describes it:

“Standard Form 85 (SF 85) . . . asks for (1) background information, 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 within the past year, along with any treatment or counseling received for such use. 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.'”

The original panel held that the use of the SF-85 for non-sensitive positions (i.e., not working with classified materials), filled by private-sector contract employees, was unsupported by any federal statute (the APA claim) and intruded on personal information in violation of the right to privacy (the constitutional claim).

While the panel and full court today — in a brief, unsigned order — denied rehearing or en banc review, twelve judges on the court went on the record with their reasons.  Seven judges concurred (signed by Wardlaw,  joined by Pregerson, Reinhardt, W. Fletcher, Fisher, Paez, and Berzon).  In that 24-page opinion, the concurring judges fend off the dissents’ various attacks on the panel decision, highlighting facts in the preliminary injunction record, and stressing that it is premature to assess the merits.  The opinion notes, for instance, that the class includes individuals who have already undergone a clearance process:

“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 [dissenting] Judge Callahan’s representation, the newly proposed investigation is not limited to
information ‘voluntarily turn[ed] over to third parties.’ [fn.] 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.”

But the dissents, as rear-guard attacks, make for better — at least, more amusing — reading.

Judge Kozinski, for instance, skewers — in a brisk seven pages — the confused state of the right to informational privacy:

“With no Supreme Court guidance . . . 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 turducken. We have a grabbag 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.”

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“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.”

Judge Kleinfeld in just six pages wittily contrasts the panel decision with hiring at Starbucks:

“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 imagine 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 something about the assistant. Without open-ended questions, it is hard to know what potential problems might need an explanation. 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, occasionally, 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 Propulsion Lab engineer as a barista.”

And Judge Callahan submits a 29-page jeremiad against the panel decision, darkly hinting that NASA’s inability to penetrate every last cell of an employee’s life could lead to the next 9/11.

Although the Supreme Court may wait to see how the record develops from here before weighing in, the various opinions point up promising avenues for the U.S. to argue that authority is divided and hazy in this are and in need of correction (e.g., the thrust of Judge Kozinski’s separate opinion).